The Case Against Punishment: Retribution, Crime Prevention, and the Law

5. Punishment as Self-Defense

Punishment as Self-Defense It is good to kill an admiral from time to time, to encourage the others. —Voltaire, Candide, 1759 I. Introduction We saw in chapter 2 that the core of the objections to utilitarian theories is that we have a moral duty to treat individuals with the respect due to persons, rather than to use them as mere instruments to our own ends. This is the same concern that prevents us from killing off the more needy members of society to benefit the rest. Harming some to benefit others is, at best, morally precarious. Social contract theories seek to show that punishment results from the choice of the offender, rather than from the choices of others, and so does not use her as a mere means. Such theories must show both that the offender chooses to commit the crime and that her consent to the associated punishment may be assumed. I have argued that it is not reasonable to impute to all offenders consent to the system of rules and penalties. If the right to punish can be made to rest on the right to self-defense, however, we may impose punishment without consent to a system of punishment, relying only on the offender’s choice to commit the crime. Alternatively, the self-defense view could be taken to cover those who cannot be expected to consent to punishment, thus serving as a supplement to the social contract view, which would be applicable to those who could be expected to consent. Basing punishment on self-defense promises to integrate retributive and crime-preventive purposes in a particularly neat fashion. The use of defensive force is limited to aggressors, thus satisfying the desert requirement of the retributive view. But such force is used for the purpose of averting harm, corresponding to crime-preventive purposes. If we can base punishment on the right to self-defense, we can account for a policy 5 95 of aiming at deterrence while limiting punishment to those who deserve it: this theory would not be consistent with punishing the innocent to prevent crime. Simply warning the offender that we will punish her if she chooses to commit a particular crime is not adequate to make the offender responsible for her own punishment, just as the robber’s warning that if you resist she will shoot you does not justify her in doing so. We must also show that the punishment itself, or its attachment to the crime, results from the offender’s choice. Otherwise, any consequence that we chose to attach to another’s chosen course of action would be justified, and this cannot be so. The self-defense theory of punishment seeks to justify the attachment of the penalty to the crime through an analogy with the natural right of self-defense. When someone comes at you with a knife, you may use force to repel her without seeking her consent to be governed by a rule permitting such force. Your use of force against her may be said to flow from her choice in that her action forces you to choose between harm to yourself and harm to her; under those circumstances, you are justified in choosing harm to her. The aggressor’s action represents a choice that someone will be harmed, in that she has chosen to take an action that makes such harm inevitable. The right to self-defense is thus appropriately exercised against enemies, with whom there is no question of sharing a social contract. Self-defense is exercised against those with whom reasoning has failed, or with whom there is neither time nor opportunity to reason. Clearly, we must be cautious before consigning any area of our relations with our fellow citizens to this category. The principle of self-defense does not directly justify punishment, as in the case of punishment the wrongdoer has already inflicted her damage, and the question is one of doing additional harm to her. But proponents of the self-defense theory seek to collapse the distinction between self-defense and deterrent punishment, arguing that both flow from the same underlying principle. If successful, this argument would require us either to accept punishment or to reject the right to self-defense. I shall argue that the analogy fails: preventive violence is sometimes justified, but punishment does not fall under the relevant principle. The harms we do in enforcing self-defensive threats of punishment are neither necessary in...