Academic journal article Harvard Journal of Law & Public Policy

Dignity and Desert in Punishment Theory

Academic journal article Harvard Journal of Law & Public Policy

Dignity and Desert in Punishment Theory

Article excerpt

Once upon a time, human dignity played a large role in the theory of punishment. Then punishment fell victim, both in theory and in practice, to the central philosophical mistake of the twentieth-century. (1) A criminal justice system based on human dignity and just deserts was replaced by a system of quarantine. We were left with an enormous state apparatus devoted to the efficient incapacitation of undesirable people. This regime still goes by the name of the criminal justice system, but it now has little to do with crime or justice, because the quarantine of people deemed likely to decrease social welfare has a completely different provenance from punishment. (2) Both the putative necessity and the specious justification of quarantine originate, in part, in a mistaken conception of value and normativity.


Fifty years ago, the principal preoccupation of punishment theorists was the formulation of a defense against the scapegoating objection to the so-called deterrence theory of punishment. (3) The scapegoating objection points out that if punishment is justified by deterrence, or by any other beneficial consequences, then a net gain in good consequences should be pursued regardless of traditional notions of guilt and desert. If a quick conviction and hanging will avoid mob violence in a town upset by a heinous crime, then the authorities should quickly convict and hang someone. Anyone will do, provided that the person hanged can plausibly be portrayed as the perpetrator. Neither finding the true perpetrator nor determining an appropriate sentence should matter if this "punishment" is justified by a net gain in social welfare.

John Rawls, H.L.A. Hart, and other philosophers arrived at an answer to this objection, seemingly simultaneously, in the 1950s. (4) Justifying the overall practice of legal punishment with a consequentialist argument does not imply that one could, would, or should justify punishment in individual cases with that same consequentialist argument. Consequentialism morally justifies the system of legal punishments, but justification in the individual case is never more than a legal justification within the terms of that legal system. Furthermore, at the level of the punishment system, consequentialist moral theory would not sanction the regular opportunistic punishment of scapegoats because the uncertainty and insecurity engendered by such a practice would outweigh any isolated gains in social welfare. Thus, the inference that consequentialism justifies the punishment of scapegoats is a category error: it states a purported moral justification where only a legal justification is possible.

This solution, focusing on the punishment system instead of the individual case of punishment, has its own weaknesses, (5) and better defenses of consequentialism exist. (6) For present purposes, however, the interesting aspect of this argument from a half-century ago is its assumption that any theory of punishment that authorizes scapegoating must be incorrect. After all, anyone willing to accept the danger of scapegoating for the sake of increased social welfare would be unmoved by the objection. Its force rests entirely on the notion that to punish the innocent is wrong, no matter how great the compensating gains in welfare might be. That is, the scapegoating objection appeals to non-consequential values such as desert and human dignity.

A similar appeal lies at the center of another mid-century argument. Lady Barbara Wootton famously argued that the notions of crime and punishment ought to be abjured generally in favor of a medical approach to anti-social conduct. (7) Sanford Kadish denounced this proposal as incompatible with human dignity (8). In Herbert Morris's terms, the criminal has a right to be punished, because to do anything else would be to treat him as something less than an autonomous, responsible moral agent. …

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