Society and Justice

Should society punish law-breakers on the grounds of retribution, rights, or the welfare of society?

I should, first of all, clarify what I mean by these terms. Retribution presents punishment as a matter of justice. Immanuel Kant argued that, “Judicial punishment can never be used merely as a means to promote some other good for the criminal himself or for civil society, but instead it must in all cases be imposed on him only on the ground that he has committed a crime” (The Metaphysical Elements of Justice). Justice for Kant is the ultimate end. No man* ought to be wrongfully punished, even if it would result in huge social benefits, and no man ought to be justly released from punishment proportional to his crime. To do otherwise would be to compromise justice.

In contrast, an emphasis on rights presumes that the ultimate aim is the liberties of the individual. If we grant that a society owes each individual citizen certain unalienable rights, the foremost being life, liberty and the pursuit of happiness, then it must serve these rights above moral deserts of punishment. Of course, in order to maintain the liberty of citizens a state must also maintain the law and order, necessitating punishment. The ultimate aim is, therefore, the welfare of individuals in society, rather than justice†. Under this conception, there ought to be an emphasis on rehabilitation through punishment. A citizen can be denied their rights only as far as is necessary to protect the right of other citizens, and there is an assumption that these rights will be restored as quickly and fully as possible.

There is also, I think, a third major conception of justice which prioritises society itself over the individuals within that society. Punishment is used to deter actions that might harm society. If an individual has an adversely effects the welfare of society, they ought to be removed from that society. This does not necessarily entail that capital punishment is liberally applied‡, rather incapacitation may serve society better by causing less discontent and unrest.

It sounds irresolute, but I have to say that the best system has to be a combination of the three, but with the emphasis on rights. I don’t want to marginalise justice, and I do think there is a duty to punish culpable offenders, but I don’t see retributive justice as practical. Utopia is not possible in a world of imperfect people and to some extent we need to account for this. And ultimately, I believe, justice will occur regardless of what are courts do.§ The third view I laid out is, quite clearly, the most pragmatic and probably the one most evident in our current system, yet has many short-comings. I think it often leads to inhumane forms of punishment. A felon is still worthy of basic human dignity.

Although I see prison as a necessary form of punishment for the protection of society, I think that prison conditions must be of a certain standard. Apparently, in the US 68% of released prisoners end up back behind bars with three years of their release, and I doubt other nations are any different. Juvenile detention centres and prisons tend to be breed rather than rehabilitate criminals; Bentham’s Panopticon and other highly regimented prison inhibit rehabilitation as released inmates struggle to readjust to life on the outside; and obviously torture (physical and psychological) undermine the dignity of human life. Prison and all other punishments should, of course, be unpleasant in order that they be feared and deter criminal acts, but they must not challenge the recognition of basic human rights.



* Once again, I will apologise to any person offended at the generic use of ‘man’. That is, I regret that you take offence; I don’t regret using the word.
† ‘Justice’ here being in the Kantian sense. Of course, one may see as ‘just’ that which is most beneficial to the greatest number of people, in which case retribution would be ‘unjust’
‡ In fact, the case for capital punishment can be made most strongly with appeals to retributive justice. Kant vehemently supported capital punishment, asserting “If legal justice perishes, then it is no longer worthwhile for men to remain alive on this earth.” I am also quite fond of this extract from his work: “Even if a civil society were to dissolve itself by common agreement of all its members (for example, if the people inhabiting an island decided to separate and disperse themselves around the world), the last murderer remaining in prison must first be executed, so that everyone will duly receive what his actions are worth and so that the bloodguilt thereof will not be fixed on the people because they failed to insist on carrying out the punishment; for if they fail to do so, they may be regarded as accomplices in this public violation of legal justice.” (The Metaphysical Elements of Justice)
§ For those confused, I am talking God’s judgement (not karma).