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Against Legal Punishment

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The Palgrave Handbook on the Philosophy of Punishment

Part of the book series: Palgrave Handbooks in the Philosophy of Law ((PHPL))

Abstract

Hanna argues that legal punishment is morally wrong because it is too morally risky. He first briefly explains how his argument differs from similar ones in the philosophical literature on legal punishment. Then he explains why legal punishment is morally risky, argues that it is too morally risky, and discusses objections. Put simply, his argument goes as follows. Legal punishment is wrong because we can never sufficiently reduce the risk of doing wrong when we legally punish people. We can never sufficiently reduce this risk because wrongful punishment is much worse than wrongful non-punishment and because punishment’s permissibility depends on the answers to a variety of difficult philosophical questions about which we are fallible.

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Notes

  1. 1.

    For ease of exposition, I will use punishment to mean legal punishment throughout.

  2. 2.

    Tomlin (2014, 444–46) and Kolber (2018, 491) do anticipate arguments like mine, though.

  3. 3.

    The key concepts in conditions 2–5 typically have both legal and nonlegal senses. I am using the nonlegal senses. So, to take an example, P may not have acted freely in my sense even if the law counts her as having acted freely. Ditto for conditions 3–5. It is uncontroversial that there are nonlegal necessary conditions for punishment’s permissibility and that the law can be mistaken about whether they are satisfied.

  4. 4.

    Note that each condition on my list can fail to be satisfied when the ones preceding it are satisfied. To illustrate, someone can break the law freely and wrongly but non-culpably, e.g., because they were non-culpably ignorant of morally relevant facts. Or someone might not be liable despite satisfying the other conditions, e.g., because they freely and culpably committed a crime that is really just a private or minor wrong that should not have been criminalized.

  5. 5.

    Prominent contemporary free will deniers include Pereboom (2001) and Levy (2011). For an overview of arguments against free will, see O’Connor and Franklin (2021).

  6. 6.

    One might object that, if we lack free will, punishment is never wrong because none of our acts are ever wrong. I will reply to this objection later.

  7. 7.

    Levy (2011) equates these kinds of control with free will, but I think that free will is a distinct kind of control and not the only kind that might be necessary for moral responsibility. Zimmerman (2011, 144–50) argues that we can be both culpable and inculpable (his term) for our acts and that punishing us for our acts is permissible only if we are culpable for them and not inculpable for them. For my purposes, we do not need to worry about what inculpability is. Instead, we can take Zimmerman to be endorsing an additional necessary condition on punishment’s permissibility. I will discuss the significance of possible additional conditions below. For an overview of arguments against moral responsibility, see Caruso (2021).

  8. 8.

    Wellman (2012) defends the first claim. Berman (2008) defends both claims. For an interestingly different take on liability, see Tadros (2011).

  9. 9.

    Boonin (2008, 103–19) and Hanna (2012, 609–16) question the first position. Hanna (2019, 111n6) gives several examples of philosophers who question the second. Hanna (2013, 2019) and Nelkin (2019) question the third.

  10. 10.

    For arguments that punishment is not the only way to do such things, see, e.g., Sayre-McCord (2001, 514–16), Golash (2005, 22–48, 153–72), Boonin (2008, 264–67), and Hanna (2008, 2014).

  11. 11.

    Another upshot is that particular justifications for punishment are often committed to conditions that would make punishment morally risky. This makes such justifications vulnerable to distinctive moral risk-based objections. For an argument that this is true of retributive justifications, see Kolber (2018).

  12. 12.

    In this respect, the argument differs from those of Vilhauer (2009), Caruso (2020), and Caruso and Pereboom (2020), among others. They argue that the claim that we have free will can be reasonably doubted and that this undermines retributive justifications for punishment specifically.

  13. 13.

    Assuming that the probabilities for the six claims are independent of each other, the calculation is straightforward: 0.99^6 = 0.941 (Kolber 2018, 490).

  14. 14.

    For arguments against the rationale, see Laudan (2006, 2011, 2012). For a critique of Laudan’s arguments, see Gardiner (2017).

  15. 15.

    Huemer (2016, 16) applies the reasoning to the wrongdoing condition. Tomlin applies it to the claim that some conduct is worthy of punishment (2013, 45, 52) and to the claim that a given punishment is not disproportionately harmful (2014, 432, 445).

  16. 16.

    Compare Tomlin (2013), who argues that conduct should not be criminalized in the first place unless the conduct has been shown beyond reasonable doubt to be worthy of punishment. I have not put my arguments in terms of criminalization because, unlike Tomlin, I do not think that punishment is essential to the criminal law (Tomlin 2013, 45n1).

  17. 17.

    Boonin’s work on restitution significantly expands on the work of others. For references, see Boonin (2008, 216). Golash (2005, 22–48, 153–72) also discusses a variety of non-punitive responses to crime. For responses to the objection that abolitionist alternatives are actually punishments, see Sayre-McCord (2001, 506–7), Boonin (2008, 233–35), and Hanna (2022).

  18. 18.

    On my view, punishment stigmatizes the punishee in such a way largely because it is intended to harm the punishee, and this sends a highly stigmatizing message about the punishee’s moral status. Abolitionists typically think that the intent to harm is morally significant. They argue that it makes punishment especially hard to morally justify and that non-punitive alternatives to punishment that do not intend harm are easier to morally justify, other things equal. See, e.g., Sayre-McCord (2001, 506–7), Boonin (2008, 15–16, 28–9, 234), Zimmerman (2011, 159–65), and Hanna (2021).

  19. 19.

    Compare Kolber (2018, 520–22) and Laudan (2006, 2011, 2012). Kolber argues that moral risk is a serious problem for retributivists, but not as serious of a problem for consequentialists. And Laudan challenges, along partly consequentialist lines, many of the ways that the reasonable doubt standard is used.

  20. 20.

    Some philosophers seem willing to say that these are not punishments, though, e.g., Feinberg (1965, 398).

  21. 21.

    The following objection is adapted from Weatherson (2014, 146), who deploys a similar objection against the following principle: if an agent has a choice between two options, and one might be wrong, while the other is definitely permissible, then it is wrong to choose the first option. For present purposes, I am agnostic about this principle. But I suspect that my reply to the above objection can be adapted to defend the principle from Weatherson’s objection.

  22. 22.

    The idea that laws and legal practices must in some sense be justifiable to everyone affected is a core tenet of public reason liberalism. For discussion, see Quong (2018).

  23. 23.

    See Hanna (2021) for further discussion of this sense of justification and its moral significance.

  24. 24.

    Thanks to Marcus Hedahl and Adam Kolber for extensive comments on earlier versions of this chapter. Thanks also to audiences at CU Boulder, the 2021 Rocky Mountain Ethics Congress, and the 2019 meetings of the Alabama Philosophical Society, the North American Society for Social Philosophy, and the North Carolina Philosophical Society.

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Authors and Affiliations

  1. Drexel University, Philadelphia, PA, USA

    Nathan Hanna

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  1. Nathan Hanna
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Correspondence to Nathan Hanna .

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  1. Philosophy & Religious Studies, Central Washington University, ELLENSBURG, WA, USA

    Matthew C. Altman

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Hanna, N. (2023). Against Legal Punishment. In: Altman, M.C. (eds) The Palgrave Handbook on the Philosophy of Punishment. Palgrave Handbooks in the Philosophy of Law. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-11874-6_25

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