ABSTRACT
A surprisingly large number of questions arise under the heading “the philosophy of punishment.” Here, in what roughly conforms to the intellectual order in which these questions might be addressed, although not necessarily in their order of importance, are some of them:
• What is punishment? Is it punishment to put someone in prison who prefers this to life outside? Is it punishment to put someone to death who wants to die? From whose point of view should these questions be decided? (Reiff 2005: 77-98, 116-141)
• Whom may we properly punish? Can we punish the mentally incompetent, or children? How do we tell whether someone has the capacity to control their actions or the actions of other people to a sufficient extent to be subject to punishment for them? (Hart 2008)
• What is the relationship between punishment and responsibility, in both the causal and moral sense? Can we impose punishment without fault? Is there such a thing as collective responsibility? As collective punishment? (Duff 1990, 2005, 2008; Feinberg 1970; Hart 2008; Hart and Honoré 1985; Reiff 2008)
• What may we punish people for? Only for criminal wrongs, or can we punish people for civil wrongs too? What considerations should be taken into account here? The offender’s intent? The harm caused? The degree to which the harm caused can be compensated, if at all? (Duff 1996; Feinberg 1984; Hart 1963; Husak 2008; Reiff 2005)
• How can punishment be morally justified? Does the justification for the institution of punishment differ from the justification for a particular act of punishment? Does the justification for the threat of punishment differ from the justification for its actual imposition? Is punishment not only morally permitted, but (at least in some cases) morally required? (Acton 1969; Cottingham 1979; Duff 1986, 2001; Feinberg 1970; Rawls 1955; Simmons et al. 1995; von Hirsch 1993; Walker 1991, 1999)
• How do we determine what kind and amount of punishment is due? Are attempts to be punished as severely as completed crimes? Are there moral limits on the form and extent of punishment we may impose? Is capital punishment permissible? Torture? What is the role of forgiveness and mercy? (Davis 1986; Kramer 2011; Murphy and Hampton 1998; Reiff 2005; Shue 1978; Sussman 2005)
• What defenses should be available to someone charged with a punishable offense? What is the difference between a justification and an excuse? (Duff 2004)
• Who has the right to impose punishment? Is this the exclusive province of the state, or can punishment be imposed by private citizens as well? (Husak 1992; Locke 1988; Murphy 1985; Shafer-Landau 1996; Simmons 1992)
• Who decides whether the accused is guilty and if so, how they should be punished? By what process are these decisions to be made? What restrictions might apply to whatever decision-making process we employ? (Duff et al. 2004, 2006, 2007)
• What is the role of punishment in international law? Are the issues different here, or only the extent of the crimes? Are nations to be punished just like individuals, or is it wrong to impose hardships on people for the actions of their leaders? (May 2005, 2007, 2008)
• What is the role of punishment in transitional justice? Are actual prosecutions necessary, or are truth and reconciliation commissions sufficient? (Elster 2004)
Of course, many of these questions are intertwined in various ways, some could be derived from and therefore subsumed by others, and some have necessarily been left out. This list is not exhaustive, nor has it been reduced to only its most fundamental elements. Finally, the answer to some of these questions, especially to the question of justification, may heavily influence if not actually determine the answer to many of the others. Nevertheless, it is helpful to see the range of issues that can arise here before we begin to examine some of them in greater depth.
