Reading notes for each reading.pdf (no minimum amount of notes for each) - just make sure both "note-types" are used for each reading.pdf. Instruction and pdf readings attached.
Reading Notes Assignment Reading notes will be of two kinds: (a) Descriptive notes: this where you simply describe in your own words what you think is going on in the text under consideration; these notes, in principle, should be of the sort that could be of use to third parties who never read the articles in question when it come to learning what they are about and their philosophical content. (b) Normative notes: On occasion as you read along you will be struck a certain way, say a claim will strike you as false or implausible. This is when you must seize the moment and formulate your reasons for this belief. In other words, you will be constructing and evaluating your own arguments. Notes of the following readings only: 1. 1-311DefinitioinLegalPunishment.pdf 2. Jeremy Bentham_ An Introduction to the Principles of Morals and Legislation.pdf 3. Rawls.pdf Use both types of note-types for each reading. Justifying Legal Punishment Igor Primoratz om Humanity Books an imprint of Prometheus Books 59 John Glenn Drive, Amherst, New York 14228·2119 Published by Humanity Books, an imprint of Prometheus Books Justifying Legal Punishment. Copyright© 1989 by Igor Primoratz. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or trans- mitted in any form or by any means, digitaL electronic, mechanicaL photocopying. re- cording, or otherwise or conveyed via the Internet or a Web site without prior written permission of the publisher. except in the case of brief quotations embodied in critical articles and reviews. Primoratz, Igor Inquiries should be addr~ssed to Humanity Books 59 John Glenn Drive Amherst, New York 14228-2119 VOICE: 716-691-0133, ext. 210 FAX: 716-691-0137 WWW.PROMETHEUSBOOKS.COM 14 13 12 11 10 10 9 8 7 6 Library of Congress Cataloging-in-Publication Data Justifying legal punishment I Igor Primoratz. p. em. (Studies in applied philosophy) First published 1989 by Humanities Press International, Inc., Atlantic Highlands. NJ. Includes bibliographical references and index. ISBN 13: 978-1-57392-410-8 ISBN 10:1-57392-410-5 (pbk. : alk. paper) 1. Punishment_:_Philosophy. 2. Punishment-Moral and ethical. HV8675.P75 1989 364.6-dcl9 Printed in the United States of America on acid-free paper 88-9198 CIP For Edna l. Introduction 1. What Is Punishment? The word "punishment" is used in various contexts. We say that a parent has punished a child, or that a teacher has punished a pupil; that a referee has punished a football player; that a party committee has punished a member pf the party; that a judge has punished an offender; that God has punished a sinner. A systematic discussion of punishment in general would have to start with an investigation of basic characteris- tics of the use of the word "punishment" in the contexts of talking about family or school education, sporting games, voluntary associations, criminal law, or religious beliefs. Such an investigation should enable us to establish whether the use of the word in all these different contexts exhibits a common core, a set of characteristics which is the necessary and sufficient condition for applying the word "punishment," which defines "punishment" in general - or perhaps it is not at all proper to talk about "punishment in general," because God's punishment, pun- ishment as a means of education, as an element of a game, as a disciplinary measure in a voluntary association and legal punishment are connected only by family resemblances. 1 But I am not going to discuss this question. For this book does not deal with punishment in general (if there is such a thing), but with a specific kind of punishment only -legal punishment. When taken in this specific sense, "punishment" can be defined as an evil deliberately inflicted qua evil on an offender by a human agency which is authorized by the legal order whose laws the offender has violated. Let me say a few words about each of these components of the definition. (1) Punishment is sometimes defined as a pain or suffering inflicted on an offender. Such a definition would be too narrow. When we mention suffering in this context, and when we mention pain even more so, we tend to think of physical suffering, physical pain. In earlier centuries punishments very frequently consisted of infliction of physical pain, physical suffering; in more recent times, however, there are hardly any punishments. which would inflict this kind of pain or suffering on the convict, at least in civilized countries. But even if we were to emphasize 2 INTRODUCTION that the words "pain" or "suffering" are taken in a wider sense, so as to include mental pain and suffering, the definition would still be too narrow. For in our own time, the criminal-law systems of civilized countries as a rule provide for punishments which do not inflict pain or suffering of any kind on the convict - neither physical nor mental - but deprive him of a good he would want to keep: a fine deprives him of a certain sum of money, a prison term deprives him of liberty for a certain period of time, capital punishment deprives him of life. The conditions in which a convict is going to spend time in prison by no means have to be such as to cause him pain or suffering; even the most severe of all penalties, the penalty of death, is today generally carried out in such a way as to make it as painless as possible for the convict. Therefore it is better to define punishment as an evil inflicted on an offender. "Evil" is taken here in a formal sense, meaning "anything that people do not want to be inflicted on them." It is a fact, though, that there are people who deliberately commit an offense in order to end up in jail and spend some time there, and even those who murder in order to be executed (so that their misdeed is, basically, an indirect suicide of sorts). If we define punishment as an evil, shall we have to say that such offenders in fact are not punished at all? Alternatively, if we are not ready to embrace this implication, do we have to give up the definition of punishment in terms of evil? We need not accept either alternative. For when we define punishment as an evil inflicted on an offender, and when, in the role of a lawgiver, we compile a code of criminal law and determine the punishments which will be inflicted for various offenses, we do not think of each and every individ- ual case of punishing an individual offender; we make use of some experiential conclusions about what people as a rule do not want to be inflicted on them. People as a rule do not want their money to be taken away from them, or to be put in jail and made to stay there for a period of time, or to be electrocuted, or hanged; therefore, to inflict any of these things on someone means, as a rule, to inflict an evil on them. For this reason we have fines, prison terms, and executions as punishments. These are punishments in spite of the fact that in certain exceptional cases they are not evil for the convict - precisely because such cases are exceptional. If some day people change so much as to come to like, as a rule, to have their money taken away from them, to live in prisons, and to be executed rather than to wait for their natural deaths; or if they come to be quite indifferent to such possibilities, then to sentence a person to any of these will, in general, no longer mean to punish. In What Is Punishment? 3 s:tch a case we would have to introduce some new punishments, quite d.Ifferent from those we know - punishments which in those changed Circumstances would amount to things people as a rule do not want to be inflicted on them, that is, which would amount to instances of evil. (2) An offender is a person who has committed an offense. By "offense" we sometimes mean a violation of a moral norm; but the primary meaning of the word, the meaning we most frequently have in mind, is "a violation of the criminal law." This is the meaning the word has when used to define legal punishment. 2 I should emphasize that, when I define punishment as an evil inflicted on an offender, by "offender" I mean a person who has offended against any positive criminal law, no matter whether that law is just or unjust, whether it is an expression of a condition of universal freedom or of a tyrant's arbitrary will, whether it is morally legitimate or not. But does "punishment" as a matter of fact always mean "an evil inflicted on an offender"? Does it not happen that a person who is not an offender, who. has ~ot offended against the law, gets punished? Judges are n~ mor~ mfalhble than the rest of us; thus it can happen, and sometimes It does happen, that a judge sentences a defendant who actually has not committed the offense he is charged with. Now, when a person who has been sentenced by mistake spends time in jail or gets executed, is this not punishment in the same sense and to the same degree as if he were really guilty as charged? No doubt we would be willing to apply the word "punishment" in such cases as well; but it does not follow that we have to give up the definition of "punishment" as an evH inflicted on an offender. The only thing we have to do is to refine it: punishment is the infliction of an evil on a person believed to be ~n offe~der by those who decide on it. This belief on the part of the JUdges IS (one hopes) true; still, sometimes it can be false. But even if it were more often false than true, that would not mean that we could no longer speak of punishments; for it is the belief mentioned, and not the fact .that makes the belief true, which is a logical presupposition of pumshment. (3) The definition of punishment as an evil deliberately