Punishment and Personal Responsibility

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is “one of the devices of social order” (ibid. 22). Faced with two plausible
but conflicting theories, Rawls attempts to reconcile them.
The solution to the conflict between retributivism and utilitarianism,
Rawls argues, consists in making a distinction between what justifies
punishment as a general practice, and what justifies a particular action
under this practice. He illustrates how this distinction works in the case
of punishment by a very compelling hypothetical discussion about the
practice of punishment between a father and his son. The son asks his
father why a particular criminal, F, was put in jail yesterday. The father
replies that F has robbed a bank and that F was duly tried and found
guilty. But if the son were to proceed to ask why people are put in jail,
his father would reply “to protect good people from bad people” or the
like. Rawls argues that these are different questions:
“There are two very different questions here. One emphasizes the
proper name: it asks why F was punished rather than someone else, or
it asks what he was punished for. The other question asks why we
have the institution of punishment: why do people punish one another
rather than, say, always forgiving one another?” (ibid. 22)
Rawls contends that the first question is answered by retributivism and
the second question by utilitarianism. Retributivism governs actions falling
under the practice of punishment, such as why F and no one else
went to jail. Utilitarian considerations answer the question what the practice
as such aims to do, and why it is justified in the first place. In this
sense, utilitarianism is the more fundamental theory of the two, for it
answers the question about the very point of having an institution of punishment.
152 The two questions furthermore address different institutional
levels, Rawls argues. Legislators, who are interested in social protection
and overall welfare, pass laws in order to control crime, but are not concerned
with the everyday workings of the criminal justice system. That is
the responsibility of the courts. But the courts are ruled by retributivist
ideas about desert and proportionality, not utilitarian considerations. The
conflict between retributivism and utilitarianism is therefore a superficial
152 Speaking with Hart, we could say that utility provides the “general justifying
aim” of punishment (Hart 1968). Speaking with Dolinko, we could say that utility
provides its “rational justification” (Dolinko 1991).