The Great Conversation: Punishment
By Matt McKeown
The idea of punishment usually derives, one way or another, from the idea of justice. However, the very fact that we use phrases like “unjust punishment” indicates that it is something other than a subcategory within justice. How punishment should work—both practically and in principle—is one of the oldest topics of both philosophy and literature.
An archetypal example of the problem comes from the myth of Orestes. This is the only story for which the three great Athenian tragedians, Æschylus, Sophocles, and Euripides, all composed plays that still survive. The central problem of the story is Orestes and his sister Electra avenging the murder of their father. The problem is, one of the murderers is their mother Clytæmnestra, and there is naturally a powerful taboo against matricide. All three playwrights address the problem differently. Æschylus offers the “orthodox” solution: Orestes kills his mother, is duly driven mad by the Furies, and is ultimately cleansed of his guilt through a divine intervention that ends the revenge code itself, in favor of reasoned justice administered by the community (represented in a jury). Sophocles‘ solution is arguably the most shocking of the three; his Orestes and Electra kill their mother, and experience no consequences at all, because Clytæmnestra deserved her fate. The cynical Euripides harshly dismisses both answers, presenting us with a picture of punishment that neither satisfies justice nor improves anything.
Literature, of course, represents problems in terms of experience rather than theory. The philosophical basis of punishment is a good deal neater. Punishment is typically justified on one or more of four grounds: retribution, deterrence, social safety, and rehabilitation.
Retribution is perhaps the most obvious of the bunch. It seems to be a basic moral intuition that people can deserve good or bad things because of how they act. In some cases, this can mean something as simple as making restitution, or some attempt at restitution. In the Salic and Anglo-Saxon codes of Medieval Europe, even crimes as grave as murder might be punished with a heavy fine, as an alternative to allowing a blood feud between families; this was so standard that an Old English word for the fine, weregild, remained in use right down to the nineteenth century.
Retributive theories can also overlap with the desire for revenge. Thomas Hobbes defined “revengefulness” as the “desire, by doing hurt to another, to make him condemn some fact [i.e., deed] of his own.” This kinship with revenge has been used as an argument both for and against retributive punishment. The expression “an eye for an eye and a tooth for a tooth” is widely thought to have been a limitation upon revenge; punishment could go no further than the original offense had. But it also has issues of its own, as summed up in the musical Fiddler on the Roof: “Very good. That way the whole world will be blind and toothless.”
Deterrence is frequently cited as both a justification for punishment in itself, and as a case for harsh punishments in particular. However, Charles Montesquieu (whose The Spirit of Laws was highly influential on the Founding Fathers) pointed out that this can undo itself: “In Russia, where the punishment of robbery and murder is the same, they always murder.” After all, no theory of punishment reaches further than the people one is able to catch, and the dead are only rarely asked to testify in court.
Social safety is another basis for punishment, especially imprisonment. If a criminal is confined, they cannot do further harm. Both deterrence and social safety, however, are often criticized on the grounds that both tend to treat the offender’s actual guilt as irrelevant. Keeping society safe from criminals is well served by penalties that are grossly disproportionate to the offenses, for example. And making an example of an innocent person whom most people believe to be guilty is just as good a deterrent as dealing with an actual wrongdoer.
Lastly, there is rehabilitative punishment, which aims at reforming the offender’s character so that they are less likely to offend again. Rehabilitation—if successful—does therefore satisfy the desire to make society safer. It also stands in an interesting relationship to the idea of retribution. On the one hand, trying to improve a person’s character seems at first glance to be treating criminals a good deal better than they presumably deserve. On the other, as Dorothy Sayers pointed out in her introduction to the Purgatorio, “The great essential which is so often overlooked in arguments about penal reform [is] the prime necessity of getting the culprit to accept judgment. If a man is once convinced of his own guilt, and that he is sentenced by a just tribunal, all punishment of whatever kind is remedial, since it lies with him to make it so; if he is not so convinced, then all punishment, however enlightened, remains merely vindictive, since he sees it so and will not make it otherwise.”
Euripides, The Bacchæ
St. Augustine, The City of God
William Shakespeare, King Lear
Jeremy Bentham, Principles of Morals and Legislation
C. S. Lewis, The Humanitarian Theory of Punishment
Aleksandr Solzhenitsyn, The Gulag Archipelago
Take a look at some of our other posts here at the Journal, like this author profile of Mary Shelley, this two-part series on the value of a liberal education, or this student essay on relativism. And be sure to check out our podcast, Anchored, hosted by our founder Jeremy Tate.
Matt McKeown is a staff editor for CLT. He lives in Baltimore and enjoys history, literature, linguistics, whiskey, and bad sci-fi movies.