Virtue Ethics and the Justification of Punishment

Schaeffer, Matthew, International Journal of Punishment and Sentencing

I. A CENTURY (OR SO) AND A TAXONOMY (1)

From the turn of the twentieth century (e.g., in Hastings Rashdell's "The Ethics of Forgiveness" (2)) until the end of the nineteen fifties (e.g., in H.L.A. Hart's "Prolegomenon to the Principles of Punishment" (3)), at least one thing was agreed upon in the philosophy of punishment: consequentialism, deontology, or a mixed theory of the two were the only normative ethical theories that could possibly justify the punishment of a citizen by the state. (4) With these justificatory constraints agreed upon, much of the debate revolved around which normative ethical theory could indeed justify legal punishment. Unanimous agreement, it goes without saying, was elusive; but it is worth noting that many philosophers of punishment were convinced of two things: (i) unadulterated consequentialism seemed to justify the punishment of innocent citizens (e.g., whenever the punishment of an innocent citizen would bring about the best consequences); and (ii) unadulterated deontology seemed to offer citizens as sacrifices to some abstract moral law or duty (e.g., whenever a moral law or duty enjoined punishment without concern for the consequences of the punishment). (5) As a result, some philosophers attempted to ameliorate and defend consequentialist justifications of punishment; some philosophers attempted to ameliorate and defend deontological justifications of punishment; and some philosophers attempted to avoid the perceived weaknesses of consequentialist and deontological justifications by constructing mixed theories of justification. (6) For the first sixty years of the twentieth century, then, every attempt to justify legal punishment (henceforth "punishment") was grounded in consequences, duties, or both.

In nineteen fifty-eight, however, Elizabeth Anscombe argued that deontology and consequentialism were literally incoherent outside of a law conception of ethics (a conception ostensibly found in the Judaic, Christian, and Islamic traditions); for they necessarily made use of concepts that could not exist outside of a law conception of ethics--concepts such as "duty" and "obligation" and "requirement." In place of deontology and consequentialism, Anscombe argued for a return to Aristotelian virtue ethics. (7) Whatever the merits of Anscombe's arguments, her suggestion galvanized other philosophers--e.g., Alaisdair MacIntyre, Bernard Williams, Philippa Foot--and it was not long before virtue ethics reemerged as a rival to consequentialism and deontology. Indeed, by the twenty-first century, some philosophers were willing to declare that virtue ethics had achieved full status as a normative ethical theory. (8)

Given this protracted change in normative ethics (from the nineteen sixties until the present), one would expect to see a corresponding change in the debate over the justification of punishment. More specifically, one would expect to see some philosophers of punishment attempting to justify punishment via virtue ethics, not just consequentialism, deontology, or some mixture of the two. Strangely, this is not what one sees in the literature. As far as I can tell, from the nineteen sixties until the present, only one legal philosopher--Kyron Huigens--has justified punishment via virtue ethics, and this has been only recently. (9) It is as if philosophers of punishment have never heard of virtue ethics. (10)

Taking all of the above into account, it is clearly time to expand the taxonomy of the normative ethical theories that could possibly justify punishment. At the very least, the taxonomy must include four genera:

(1) Consequentialism: For all X, the state ought to punish X if and only if punishing X will bring about the best consequences--and the best consequences determine our duties and the virtues, not vice versa. Here, then, the good (understood in terms of consequences) is logically prior to duty and virtue, viz., duty and virtue are defined in terms of the good. This justification of punishment is thus grounded, ultimately, in consequences. (11)

(2) Deontology: For all X, the state ought to punish X if and only if there is an all things considered duty to punish X--and our duties determine which consequences are best and the virtues, not vice versa. Here, then, duty is logically prior to the good (understood in terms of consequences) and virtue, viz., the good and virtue are defined in terms of duty. This justification of punishment is thus grounded, ultimately, in duty.

(3) Virtue Ethics: For all X, the state ought to punish X if and only if the fully virtuous person would punish X in the same circumstances--and the fully virtuous person determines our duties and which consequences are best, not vice versa. Here, then, virtue is logically prior to duty and the good (understood in terms of consequences), viz., duty and the good are defined in terms of virtue. This justification of punishment is thus grounded, ultimately, in virtue.

(4) Mixed Theories: For all X, the state ought to punish X if and only if the relevant consequentialist, deontological, and virtue ethical considerations, after being weighed appropriately, enjoin the state to punish X--and the normative force of consequentialist, deontological, and virtue ethical considerations are not reducible to any one type of consideration. Here, then, neither the good, nor duty, nor virtue hold a position of logical priority, viz., the good, duty, and virtue are all defined independently. This justification of punishment is thus grounded, ultimately, in consequences, duty, virtue, or all three. (12)

Given the past century, then, I think it is high time that we try to discover what virtue ethics has to say about the justification of punishment. This sort of an investigation may be helpful in two ways. First, the application of virtue ethics to the justification of punishment may provide us with new insights vis-a-vis the justification of punishment. Second, the success or failure of virtue ethics to grapple with the messy issue of punishment may speak for or against the superiority of virtue ethics when it comes to the issue of punishment (and normative ethics in general). Thus, in what follows--leaving consequentialism, deontology, and mixed theories to the side--the sole objective of this paper will be to see what virtue ethics has to say about the justification of punishment.

II. THE FULLY VIRTUOUS PERSON AND THE JUSTIFICATION OF PUNISHMENT

If we are trying to see what virtue ethics says about punishment, how should we proceed? (13) Well, since virtue ethics says that the state ought to punish X if and only if the fully virtuous person would punish X (assuming the fully virtuous person has de jure control of the state), then it seems to follow that we need to discern the nature of virtue and the set of virtues possessed by the fully virtuous person. Then, with this information in hand, we will be able to discern what the fully virtuous person would do about punishment. For the sake of brevity, though, I will not attempt to give full accounts of the nature of virtue and the set of virtues possessed by the fully virtuous person, but I hope to say enough so that we can discern, at least in outline, what the fully virtuous person would do about punishment.

Concerning the nature of virtue, I will assume that a virtue is a character trait that is a constitutive element of eudaimonia (i.e., human flourishing or living well), while a vice, on the other hand, is a character trait that is antithetical …

Questia, a part of Gale, Cengage Learning. www.questia.com
Publication information: Article title: Virtue Ethics and the Justification of Punishment. Contributors: Schaeffer, Matthew - Author. Journal title: International Journal of Punishment and Sentencing. Volume: 6. Issue: 2 Publication date: July 2010. Page number: 36+. © 2006 Sandstone Academic Press. COPYRIGHT 2010 Gale Group.

This material is protected by copyright and, with the exception of fair use, may not be further copied, distributed or transmitted in any form or by any means.