Penalty Theory

Updated: Dec 6, 2017

Review of “Punishment” (1939) by J Mabbott, Mind, 48 (190), pp. 152–167

It is quite rare, I find, to come across a text which, whilst appearing to be so intuitive, at the same time feels so wrong. Punishment, specifically on what grounds we punish, has long been debated. The classic consequentialist versus retributivist debate has been ongoing in political theory for centuries. Whilst Mabbott’s paper is already 78 years old, it offers a truly unique retributivist account, and for that reason it is worth revisiting.

Retributivism is a term which encompasses a broad array of theories, specifically all those which do not constitute consequentialism (Feinberg, 2004). Consequentialism is simply the notion here that punishment is justified if it leads to good consequences. For that reason, it can be problematic to lump theories such as desert and vengeance under the one banner of retributivism, as they do not necessarily share any similarities in their conceptual framework, other than that they are not consequentialist. Mabbott advocated a legalistic form of retributivism, but for the sake of ditching this confusing term, I shall subsequently refer to it as ‘penalty theory’ (Cottingham, 1979, 240). In his article he offers an analysis of the problematic nature of consequence based punishment, as well as injustice in its practice, being the mistreatment of those who are to be punished. However, it is penalty theory which I shall review more closely.

Mabbott (153) begins by framing consequences of punishment as no more than positive side effects. Whilst reform, rehabilitation and deterrence may all result from punishment, and consequently lead to very good outcomes for society as a whole, they cannot justify punishment. What does justify punishment under Mabbott’s view is that a rule or law has been broken.

The argument is thus quite simple, “the only justification for punishing any man is that he has broken a law” (158).

Along with being simple it seems to be highly intuitive. I would expect many to agree: generally, those who break the law deserve to be punished. A real strength to this line of argument is that it doesn’t just explain why we punish on the basis of those laws which seem to come from a moral rule. By this I mean acts which are punishable by law because they are in themselves immoral or morally problematic, such as murder. But Mabbott’s approach also helps explain why we punish for the breaking of laws which enforce “the rules of the game” so to speak, such as traffic violations. It is quite easy to say one morally deserves to be punished for murder, but to claim one morally deserves to be punished for a parking violation seems more problematic to maintain.

Mabbott’s argument faces deeper issues however when we begin to consider punishing on the basis of ‘bad laws’. Mabbott (155) gives the anecdote of when he was a disciplinary officer at a college where one of the rules was that students had to attend chapel. Mabbott stated that he had no intention of reforming rule breakers, he respected their decisions and characters, and many of whom broke the rule broke it on principle. What Mabbott believed to be a real strength to this view is that his theory explains why we punish these students. The rule of compulsory chapel attendance certainly seems like a bad one (or at least not a good one); it fails to respect the views of those students who do not wish to attend. However, as they broke the rule, Mabbott punished them: “they had broken a rule; they knew it and I knew it. Nothing more is necessary to make punishment proper” (155).

Consequently, we come to the key issue of this theory; that punishing on the basis of bad, or even morally wrong laws, is justified. Whilst Mabbott himself thought this was unproblematic, as “The effect of punishing good men on bad laws is that fewer bad men break good laws” (155), there is a real moral issue to this claim. It is quite possible for a law to be a bad one, due to mistakes in the law-making process or through morally (at best) misguided views that led to the law’s creation. Under this view, the punishment of those who were homosexual before it was decriminalised in 1967 would have been perfectly justified, for the simple reason that they had broken the law. I would hope that we would all universally reject the punishment of said people as being justified. A bad law may mean that one who breaks it is legally guilty, but not morally guilty. Punishing on the basis of a bad law doesn’t sit right. It would not make sense to apply Mabbott’s claim that punishing good people on bad laws makes fewer bad people break good laws here. To make the claim that punishing homosexual people would make people less likely to break ‘good’ laws, like theft for example, seems farcical.

Nino (1983) posits another theory of punishment, which generates a moral justification for punishment through consent to be punished. Under this view, one freely consents to punishment as they have voluntarily committed an offence, which in itself creates a moral justification for “exercising the correlative legal power in punishing him” (Nino, 1983, 299). Under this view, it again seems possible, and potentially even justified, to be punished on the basis of a bad law, such as one banning homosexuality. They would under this definition, be consenting to be punished by voluntarily committing what would, pre-1967, be an offence. The issue of bad laws, and punishing based on them, seems to be one which does not exclusively effect Mabbott. Given this, it would be useful to see it explored further in literature.

Penalty theory, as Mabbott advocates, does offer a unique justification of punishment that other theories of retributivism do not seem to incorporate. There are inherent drawbacks with Mabbott’s argument, but perhaps if it were incorporated with other retributivist elements like desert it could rid itself of these. Yet the force and problem presented in his claims means that Mabbott’s ‘Punishment’ remains a crucial piece in contemporary debate.

Cottingham, J (1979). “Varieties of Retribution,” The Philosophical Quarterly, 29 (116), pp. 238–246

Feinberg, J (2004) ‘The Classic Debate’, in Feinberg, J, and Coleman, J (ed.) The Philosophy of Law, (Belmont: Thomson/Wadsworth)

Nino, C (1983). “A consensual theory of Punishment”, Philosophy and Public Affairs, 12 (4), pp. 289-306