Punishment and Personal Responsibility

12
ment: where the right to punish came from (if it existed) and what purpose
(if any) it served.
The conclusion of these early reformists was that punishment indeed
can be justified, because it can promote compliance with common
rules and thereby uphold social peace and order. But they also concluded
that punishment, taken in and of itself, is an evil. Cesare Beccaria, whose
On Crime and Punishments (1986 [1764]) was widely held to be the
Enlightenment treatise on punishment, held that all punishment not deriving
from absolute necessity was tyrannical. A contractarian, Beccaria
understood authority as what each individual would consent to in forming
a social contract. Individuals would consent to public authorities
having a right to punish, Beccaria argued, since this would promote
compliance with common rules, which in turn promotes happiness for
all. This goal qualifies as an “absolute necessity”. But unless punishment
serves this goal, and unless punishment is impersonally, reliably and
moderately administered, punishment cannot be justified. It would then
be tyrannical, and the contracting parties would not consent to it (ibid. 7-
17).
The idea of punishment as a prima facie evil was most succinctly put
by Jeremy Bentham in The Principles of Morals and Legislations (1988
[1781]). “All punishment”, Bentham stated, “is mischief: all punishment
in itself is evil. Upon the principle of utility, if it ought at all to be admitted,
it ought only to be admitted as far as it promises to exclude some
greater evil.” (ibid. 170) The principle of utility referred to by Bentham is
the idea that the rightness or wrongness of every action or practice is
determined by its consequences for general utility. If it leads to more
utility than disutility than feasible alternatives, the action or practice is
right. 10 But Bentham saw no justification in excluding the people being
punished from the calculus of utility. Their suffering would also have to
be taken into account. This meant that without compensating gains in
utility, punishment would only leave a negative mark in the balance of
utility. In imposing pain or deprivation on the person being punished, it
10 An action or institution is right if and only if there are no (feasible) alternative
which would generate better consequences. It thus does not suffice to show that
punishment generates more utility than disutility – unless punishment generates
better consequences than, say, a system where every rule breaker is pardoned,
punishment would not be right (and hence not justified). See e.g. Tännsjö 1998.