Bentham states that ‘[a]ll punishment is mischief; all punishment in itself is evil’. Indeed, punishment is eo ipso wrong—it infringes basic human rights such as liberty. There exist two prominent philosophies seeking to justify criminal punishment: utilitarianism and retributivism. The utilitarian justification does not withstand scrutiny; punishment is better justified under retributivism; indeed, it is recognised that punishment is retributive by nature. That said, this note will advance submissions in favour of an alternative justification for punishment, rooted in retributivism, viz. that punishment is justified insofar as it redresses the advantage wrongfully gained by an offender.
According to Bentham, ‘whether [a] social practice is morally desirable depends on whether it promotes human happiness better than possible alternatives.’ Put simply, the morality of a societal practice is to be determined by reference to its likely consequences. Utilitarianism is a forward-looking philosophy, one which suggests ‘that justification [for punishment] lies in the useful purposes that punishment serves.’ It has been suggested that deterrence (general and individual) ‘drives’ utilitarianism, however, deterrence is a feeble driver. While there exists some evidence suggesting that the threat of punishment may deter individuals from crime, Golash notes that ‘we cannot know a priori whether punishment has any net deterrent effect at all.’ The UK’s substantial prison population of more than 80,000 inmates, stands as testament to the failure of the law—the threat of punishment—in deterring crime. Further, on the subject of individual deterrence, Skinner notes that ‘[a] person who has been punished is not thereby simply less inclined to behave in a given way; at best, he learns how to avoid punishment.’ Moreover, it would appear illogical to suggest that one man’s punishment serves effectively as another man’s deterrence, where the first man’s punishment in itself explicitly exemplifies the law’s failure to deter crime. It follows that in this context, deterrence cannot convincingly justify punishment.
According to Greenawalt, ‘[t]he most fundamental objection [to utilitarianism] is to treating the criminal as a means to satisfy social purposes rather than as an end in himself’; the author notes specifically that ‘the most damaging aspect […] is that utilitarianism admits the possibility of justified punishment of the innocent.’ The philosophy structurally accommodates the punishment of an innocent individual in order to bonify the public. Hence, dissatisfaction with utilitarianism prompts the need to search for a more convincing justification, perhaps that of retributivism. Retributivism originated with Kant’s philosophy that morally culpable individuals deserve punishment, epitomised by the philosopher’s claim that an island society about to disband should still execute its last murderer. Accordingly, Greenawalt recognises that society has a duty to punish a person who deserves punishment. Those that subscribe to Kantian retributivism, believe that ‘punishment restores the moral order that has been breached by the original wrongful act.’ Though it may be favourable, the retributive justification is not itself without error or criticism. Principally, concerns may be raised regarding the complexity of determining exactly what it means for a person’s behaviour to ‘deserve’ punishment, and how exactly that punishment ‘restores moral order’. Furthermore, there exists a difficulty in ‘[judging] with confidence the moral guilt of others’, and similarly that ‘not all acts that reflect serious moral guilt are the subject of criminal punishment in a liberal society.’ For example, Greenawalt notes that ‘personal wrongs [between family members] may be of greater magnitude morally than some petty crimes, even though they do not carry publicly imposed penalties.’ A more in-depth discussion of these criticisms is beyond the scope of this note, however, it is clear that Kantian retributivism is not without fault, and thus it may be desirable to further consider alternative justification.
Alternatively, punishment may be justified on similar grounds rooted in retributivism. Punishment is necessary in an adversarial society, that is, a society that employs an adversarial system of justice, such as the United Kingdom. A system such as this, presupposes fault and apportions blame accordingly, such that punishment follows as the known consequence. It is submitted that punishment is justified insofar as it seeks to redress a wrongfully gained advantage. That advantage consists in exercising a liberty that properly belongs to another person; the advantage exists because that person’s liberty is (theoretically) expanded following the assumption of that other person’s rights. What follows is the misallocation of the natural distribution of rights and choices, namely, regarding liberty. To illustrate: if person ‘A’ physically harms person ‘B’, person A has taken something from person B; they have promoted an unjust distribution of choices between both parties. It is generally accepted that individuals are autonomous beings—we have a right to decide what we do with our own bodies, and similarly, rights to property, privacy and reputation—that is the basic liberal position. It follows that anything that affects a person’s physical liberty effectively obviates their basic liberal position and affects an incursion on their autonomy. So, where A harms B, A has taken from and exercised the liberty rightfully belonging to B—the freedom to do with his body as he chooses—resulting in a wrongfully gained advantage for A. Punishment exists as a proxy for redressing the wrong of an individual who gains an unfair advantage at his victim’s expense, and paying for that advantage. However, it must be noted that this particular justification is not to be confused with restorative justification, the law cannot (largely) restore victims to a pre-crime state, though it can remove the advantage gained by the offender.
Punishment is eo ipso wrong, and it may never be justified absolutely, that is—beyond reasonable doubt or criticism. Certainly, punishment cannot be justified under utilitarian philosophy, but is better justified under a retributive understanding, or a variation thereof. This note has suggested that punishment is essential within a society that employs an adversarial system of justice, in order to redress the unfair advantage wrongfully gained by an offender who commits a crime. In conclusion, punishment (insofar as it is necessary) is justified, but not absolutely, for it is impossible to provide a complete justification for a societal practice that is in itself, evil.
 Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (James Burns and HLA Hart eds, Athlone Press 1970) 158.
 Kurt Baier, ‘Is Punishment Retributive?’ in Harry Burrows Acton (ed) The Philosophy of Punishment: A Collection of Papers (MacMillan 1969) 130.
 Kent Greenawalt, ‘Punishment’ (1983) 74 J Crim L & Criminology 343, 350 citing, Bentham (n 1).
 ibid 347.
 Mark A Michael, ‘Utilitarianism and Retributivism: What’s the Difference?’ (1992) 29 Am Phil Q 173, 175.
 Deirdre Golash, The Case Against Punishment (NYU Press 2005) 25.
 ibid 25.
 Prison population figures: 2019, <www.gov.uk/government/statistics/prison-population-figures-2019> accessed 4 February 2019.
 Burrhus Frederic Skinner, Beyond Freedom and Dignity (Alfred A Knopf 1972) 81.
 Greenawalt (n 3) 353 (emphasis added).
 ibid 343.
 Immanuel Kant, The Philosophy of Law: An Exposition of the Fundamental Principles of Jurisprudence as the Science of Right (William Hastie tr T&T Clark 1887).
 Greenawalt (n 3) 347.
 ibid 347.
 ibid 348.
 ibid 348.
 ibid 348-349.
 Bentham (n 1) 158.