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NCJ Number: 50346 Find in a Library
Title: UNSOLVED PROBLEM ABOUT PUNISHMENT
Journal: SOCIAL THEORY AND PRACTICE  Volume:4  Issue:2  Dated:(SPRING 1977)  Pages:149-165
Author(s): G SHER
Corporate Author: Social Theory and Practice
Dept of Philosophy
Florida State University
United States of America
Date Published: 1977
Page Count: 17
Sponsoring Agency: Social Theory and Practice
Tallahassee, FL 32306
Format: Article
Language: English
Country: United States of America
Annotation: PHILOSOPHICAL ARGUMENTS ON THE MORAL PERMISSIBILITY OF PUNISHMENT ARE QUESTIONED.
Abstract: PUNISHMENT TYPICALLY INVOLVES HARMING SOMEONE, EITHER BY INFLICTING PAIN OR BY DEPRIVING THE PUNISHED OF FREEDOM, PROPERTY, OR LIFE. THE QUESTION ARISES AS TO WHY SUCH ORDINARILY IMPERMISSIBLE ACTS ARE PERMISSIBLE WHEN PERFOMED AS PUNISHMENT. THE EASY ANSWER -- THAT PUNISHMENT IS PERMISSIBLE BECAUSE THE RECIPIENT HAS ACTED WRONGLY -- LEAVES THE QUESTION OF HOW THE PERFORMANCE OF ONE IMPERMISSIBLE ACT CAN ANNUL OR CANCEL THE NORMAL IMPERMISSIBILITY OF ANOTHER. THE PERMISSIBILITY OF PUNISHMENT MAY SEEM TO BE EXPLAINED ADEQUATELY BY THE ASSERTION THAT MORAL RULES DO NOT APPLY IN PUNITIVE CONTEXTS. BUT THE QUESTION REMAINS AS TO WHY THE RULES FORBIDDING HARM TO OTHERS SHOULD NOT APPLY IN EXTRAORDINARY AS WELL AS ORDINARY CONTEXTS. IF PERMISSIBILITY IS TO BE ESTABLISHED, SOME SUBSTANTIVE JUSTIFICATION OF PUNISHMENT MUST BE FOUND. ATTEMPTS TO FIND SUCH JUSTIFICATION IN THE CONCEPTS OF UTILITARIANISM AND RETRIBUTION ARE UNSATISFACTORY. ATTEMPTS TO ESTABLISH THE PERMISSIBILITY OF PUNISHMENT THROUGH APPEALS TO THE OBLIGATIONS TO OBEY THE LAW OR TO HONOR PROMISES IGNORE THE BASIC OBLIGATION NOT TO PERFORM THE ACT OF WHICH PUNISHMENT CONSISTS. THE PERMISSIBILITY OF PUNISHMENT CANNOT BE GROUNDED IN THE CONCEPT OF FAIRNESS UNTIL THAT CONCEPT HAS BEEN REFINED. ONE SUCH REFINEMENT CONCEIVES OF FAIRNESS NOT IN TERMS OF A PARTICULAR PRINCIPLE, BUT RATHER IN TERMS OF WHATEVER PRINCIPLES PEOPLE WOULD CHOOSE WHEN PLACED IN THE 'ORIGINAL POSITION,' I.E., IGNORANT OF THE NATURE OF SOCIETY AND SELF. FROM THIS PERSPECTIVE, IT MAY BE ARGUED THAT WRONGDOERS, PLACED IN THE ORIGINAL POSITION, WOULD CHOOSE THEIR OWN PUNISHMENT, THUS CANCELLING THE NORMAL IMPERMISSIBILITY OF PUNISHMENT. HOWEVER, THIS HYPOTHETICAL CONSENT IS TOO REMOTE FROM ACTUAL CONSENT TO PERMIT THE INFERENCE FROM PUNISHMENT'S FAIRNESS TO ITS PERMISSIBILITY, ALTHOUGH THE GENERAL INFERENCE FROM CONSENT (UNDER APPROPRIATE CONDITIONS) TO PERMISSIBILITY IS VALID. IF IT COULD BE DEMONSTRATED THAT, DESPITE APPEARANCES, WRONGDOERS ACTUALLY HAVE CONSENTED TO THEIR OWN PUNISHMENT (PERHAPS THROUGH THE GESTURE OF THE WRONG ACT ITSELF), THEN THE PERMISSIBILITY OF THAT PUNISHMENT COULD BE ESTABLISHED. HOWEVER, THERE ARE PROBLEMS WITH THE NOTION OF THE WRONG ACT AS A GESTURE OF CONSENT (E.G., THE ASSUMPTION THAT ACTS INVARIABLY REFLECT MORAL CONVICTIONS, AND THE LIKELIHOOD THAT THE WRONG ACT WAS NOT ACTUALLY INTENDED AS A GESTURE OF CONSENT). THERE APPEAR TO BE SERIOUS OBSTACLES TO ESTABLISHING THE PERMISSIBILITY OF PUNISHMENT. BARRING SOME UNFORESEEN DISCOVERY, THE PERMISSIBILITY OF PUNISHMENT MUST BE ACCEPTED AS MORALLY PRIMITIVE, IF IT IS TO BE ACCEPTED AT ALL. (LKM)
Index Term(s): Penology; Punishment
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http://www.ncjrs.gov/App/publications/abstract.aspx?ID=50346

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