determines the rules) and the ‘judge’ (who applies the rules to particular cases
without considering the wider purpose of punishment). The rules require that only
a person who has committed the crime be punished. The argument is a form of
institutional utilitarianism rather than rule-utilitarianism, because the latter would
collapse into act-utilitarianism if we had perfect knowledge. Central to Rawls’s
argument is the idea that given imperfect knowledgeit is better to have a moral
division of labour between legislator and judge.
Rawls then tackles the problem of how a consequentialist can avoid punishing
an innocent person. In response to the linguistic (or dictionary) objection Rawls
coins a word ‘telishment’: telishment allows for the imposition of hard treatment
on an innocent person whenever the officials empowered by that institution judge
that by deterring crime it will maximise utility. Rawls argues that such an institution
would require a very high level of deception, and so the legislator would never
empower the judge to ‘telish’ somebody (Rawls, 1999: 27).
There is, however, a fundamental problem with Rawls’s argument. We can
distinguish the offices of legislator and judge, but legal and political philosophy
aims to provide a comprehensive justification for political principles and institutions.
There must, therefore, be a standpoint from which we can understand the reasons
why we punish people, and that standpoint must incorporate the reasoning of both
legislator and judge. In other words, these two officers are metaphors for a division
within the moral psychology of the citizen and not descriptions of real people within
political institutions. For citizens to believethat punishment is fundamentally
connected to personal responsibility, such that only the guilty ought to be punished,
they must be denied knowledge of the utilitarian justification for the institution. In
short, citizens can only think like judges and not legislators. This restriction is
arguably incompatible with one of the conditions of a liberal–democratic society –
some would say, of any legal system – namely, that law and its purposes be public,
and resembles what Bernard Williams dubbed ‘Government House Utilitarianism’,
where an elite understand the purpose of the institution, but for reasons of stability
must deny the masses access to that understanding (Smart and Williams, 1973:
108–10).Beyond retributivism and consequentialism? Censure and restoration
We round off our discussion of different theories by briefly considering two that
appear to be distinct from the dominant theories (treating the compromise theories
discussed above as essentially consequentialist). One aim of punishment could be
to censure. A theory based primarily on the idea of censure might be termed
‘educative’ or ‘communicative’. Despite a claim to distinctiveness, such a theory can
be given a consequentialist cast if the aim is to strengthen respect for laws, or tend
towards retributivism if the communication is directed at the punished person.
It is claimed that censure is morally superior to deterrence because it treats the
punished person as a responsible agent rather than a Pavlovian dog. We want the
punished person to understand why she is being punished and in future be morally
motivatedto respect the law, rather than conform out of fear of punishment. The
problem is that it might not work – punishment would have no motivational effect150 Part 1 Classical ideas