2. The Justification of Punishment

Whilst punishment may have a certain utility, it is quite another question whether it can be justified as a matter of rights. In other words, whatever might conceivably be useful for society at large (for example because it increases its global well being) is not necessarily justifiable in terms of the dignity of the individual. Theories on the justification of punishment are both academic and judicial, in that the courts have had to tackle some of the very same issues that philosophers of the law have long struggled with. The big difference is that philosophers are typically interested in the justification of Punishment understood as the entire exercise of repressive justice, whereas judges are more likely to have face challenges to the criminalization of certain specific offences or punishment in individual cases. In countries that have rights charters or are parties to international human rights treaties, the criminal law has often been challenged as infringing these rights.

The justification of punishment, then, might apply to: (i) the justification of punishment in general, notably via sentencing ("why do we punish at all?"), (ii) the justification of punishing certain behavior ("why should we punish this?"), and (iii) the ascertainment of punishment in individual cases ("how should we punish this individual?". This session will only envisage (i) and (ii) with the justification of individual punishment left entirely to the session on sentencing, but there is a remarkable continuity between the sort of justifications that have been invoked across all three.

(i) General justification of punishment

There is an evident expectation that in a society of free and equal members we shall not be submitted to punishment without very good cause. The threshold is quite high for the Government to justify punishment at all. Some of the arguments that we saw in the previous session on the utility of punishment will be useful. For example, if criminal punishment has a neutral effect on deterrence, then it will become all the harder to invoke deterrence to generally boost punishment. That does not mean that the state may not punish more, but that it may have to find other rationales for punishment. Luckily for the state, in addition to the merits of each type of rationale for punishment being significantly debatable and debated, there are many to chose from. In addition to principles of utility, the state will need to make the case that a certain type of punishment is "deserved" or just. In the session on the constitutional framework of criminal justice, we will see that certain sentencing practices have been challenged under the Charter.

(ii) Justification of the punishment of certain crimes

In addition to the fundamental justifiability of punishing is, as indicated above, the related question of what should be criminalized. The extension of the criminal law to ever more realms of society raises questions of fundamental liberties. Criminal justice systems have long been obsessed with the distinction between criminalizing things that are mala en se and things that are mala prohibita. In the former case, the behaviour clashes with some sense of morality: doing the thing is bad in itself and that is a necessary although not a sufficient condition of its criminalization. In the latter case, the behaviour is only criminal as a matter of convention. These debates have been somewhat taken over by the ever-growing emphasis on constitutions and fundamental rights. The question, quite aside from whether something is inherently wrong or just legally wrong, is whether it encroaches on certain rights. The focus on rights, in turn, has put the emphasis on a range of questions about when it is appropriate for societies to limit certain rights. It has also raised anew issues of personal autonomy and paternalism. To what extent, for example, should the criminal law "protect persons from themselves"? Should people be free to harm themselves? What is the role of consent?

The class preparation includes some theory, some doctrine, some cases, and some short snippets from the news. Try to read them in light of each other. What do theorists have to say about when and why to punish? Finally, what have the courts said about the criminalization of particular behavior?

Further Reading:

• • Hart, H.L.A., and John Gardner. “Prolegomenon to the Principles of Punishment.” In Punishment and Responsibility: Essays in the Philosophy of Law. Oxford University Press, 2008.

• R. v. Butler, [1992] 1 S.C.R. 452, read the facts and the sections on constitutionality (sections C. and D).

• R. v. Zundel, [1992] 2 S.C.R. 731(sumary only)

  • Dagger, Richard. “Punishment as Fair Play.” Res Publica 14, no. 4 (November 12, 2008): 259–75.

  • Walen, Alec. “Retributive Justice.” In The Stanford Encyclopedia of Philosophy, edited by Edward N. Zalta, Summer 2015., 2015

  • Duff, Antony, Lindsay farmer, SE Marshall, Massimo Renzo, and Victor Tadros. “Introduction: The Boundaries of the Criminal Law.” In The Boundaries of the Criminal Law, edited by Antony Duff. OUP Oxford, 2010.

  • Harcourt, Bernard E. “The Collapse of the Harm Principle.” The Journal of Criminal Law and Criminology (1973-) 90, no. 1 (1999): 109–94.

  • Dubber, Markus D. “Policing Morality: Constitutional Law and the Criminalization of Incest.” University of Toronto Law Journal 61, no. 4 (2011): 737–59.

  • Smith, Steven D. “Is the Harm Principle Illiberal.” American Journal of Jurisprudence 51 (2006): 1–42.

  • Meier, Robert Frank, and Gilbert Geis. Victimless Crime?: Prostitution, Drugs, Homosexuality, Abortion. Roxbury Pub., 1997

  • Canada (AttorneyGeneral) v PHS Community Services Society, 2011 SCC 44, [2011] 3 SCR 134 (headnote).