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Chapter Seven. Democratic Disease: Of Anger and the Troubling Nature of Punishment
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Perhaps the most characteristic feature of twentieth century theories of punishment is a certain unease amongst theorists about how to answer the question “Why do we punish?” In the “Two Concepts of Rules”1 John Rawls wrote: The subject of punishment has always been a troubling moral question. The trouble about it has not been that people disagree as to whether or not punishment is justifiable . . . only a few have rejected punishment entirely. . . . The difficulty is with the justification of punishment: various arguments for it have been given by moral philosophers but so far none of them has won any sort of general acceptance; no justification is without those who detest it [emphasis added]. () In the legal theorist H. L.A. Hart displayed a similar unease about how to justify punishment when he wrote in turn about the efforts of theorists to do so: [M]any are now troubled by the suspicion that the view that there is just one supreme value or objective (e.g. Deterrence, Retribution, Reform) in terms of which all questions about the justification of punishment are to be answered is somehow wrong: . . . no clear account of what the different values or objectives are, or how they fit together in the justification of punishment can be extracted [first emphasis added]. (Punishment and Responsibility: Essays in the Philosophy of Law. Oxford: Clarendon Press, p. ()). What Rawls wrote in the ’s and what Hart wrote in the ’s still applies: modern penal theory seems to be consistently characterized by an unease, a certain troubled-ness, about how to answer the question “Why do we Chapter Seven Democratic Dis-ease Of Anger and the Troubling Nature of Punishment Danielle S. Allen punish?”2 More specifically, this unease manifests itself in a conviction that no one of the standard justifications for punishment—reformative, deterrent , and retributive justifications—actually succeeds in justifying any sort of penal system that we would be willing to recognize as just. In this paper I will make an argument that the unease about justifications for why we punish stems from our failure to recognize the extent to which punishment has to do with failures in the relations between members of a community and with restoring a set of disturbed relationships. I will argue that recognizing the importance of thinking about such relationships in the context of penal theory would have an ameliorative effect on the ways that we think about punishment and on our ability to understand the process of justifying punishment. The failures of the three standard justifications for punishment—reformative , deterrent, and retributive—are usually set out thus: The ideal of reform cannot explain why we use “hard treatment” (the imposition of suffering and pain) and not, say, a cushy Ivy League education in order to reeducate wrongdoers. The ideal of deterrence has a hard time explaining why we should limit the extent of punishments if ever-stricter punishments that are consistently enforced will, ostensibly, deter ever better. (As an example, we might say that speeding would probably be drastically decreased if the death penalty were imposed for exceeding speed limits and if every speeder were pulled over; a system of punishment based solely on deterrence would justify such extreme punishments.) The ideal of deterrence also has a hard time explaining why we should avoid making examples of the innocent; or why we cannot simply fake punishments provided that the public nonetheless believes that hard treatment follows on crime. As for retribution—the idea that the wrongdoer should suffer his or her “just deserts” and deserves to suffer as much pain as he or she has inflicted —there is always in the first instance the worry that retribution is too close to revenge and its ugliness in tone, purpose, and effect. But critics also focus on the difficulties that retributivists have in their attempts to explain the idea of desert. To quote R. A. Duff: The central problem for any retributivist, whether negative or positive, is to explain the idea of desert. Punishment is supposed to be justified as an intrinsically appropriate response to crime; the notion of ‘desert’ is supposed to indicate that justificatory link between past crime and present punishment . But just what is that link? What is ‘desert’, which supposedly makes punishment the appropriate response to crime? ()3 d a n i e l l e s . a l l e n [3.230.76.153] Project MUSE (2024-03-28 13:52 GMT) In “Two Concepts of Rules,” Rawls tried...