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Subject Area: Political Theory

Is Legal Punishment Good? - Leonard P. Liggio, Literature of Liberty, January/March 1979, vol. 2, No. 1 [1979]

Edition used:

Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.

Part of: Literature of Liberty: A Review of Contemporary Liberal Thought, 20 vols. 19781-982

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Is Legal Punishment Good?

Vernon J. Bourke

  • St. Louis University

“The Ethical Justification of Legal Punishment.” American Journal of Jurisprudence 22 (1977): 1–19.

Just what is the problem involved in justifying legal punishment, and how do we evaluate the various proposed solutions to this problem?

First we must define crucial terms, the most central being “punishment” which:

Must be unpleasant, inflicted on an offender because of an offense he committed, deliberately imposed by an agent authorized by the system of rules that has been offended.

Historically, two major traditions have justified punishment. The first, the consequentialist or utilitarian tradition, asks whether a punishment maximizes the general welfare. The weakness of the utilitarian view is the obscurity of the standard (“the greatest good of the greatest number”). In addition utilitarianism permits the punishment of innocent men if it would yield a net social benefit.

Retributivism is the second major tradition justifying punishment. A retributive theory of justice punishes simply because the criminal deserves punishment and must “pay” for his crime. Pure retributivism is found in the Old Testament and in the writings of German idealists such as Kant. Most modern ethicists, however, find retributivism distasteful, even if it is not logically as weak as consequentialism.

Legal punishment requires first a workable practical psychology and secondly an understanding of the kind of good a well-ordered community requires.

The Anglo-American tradition fails as an adequate psychology because it attempts to explain mental activity in mechanistic terms. A sound philosophy of law requires a model of the mind which can grasp universal meanings. A proper theory of practical psychology must also give an account of willing. “Willing” commits oneself to an action because it participates in some universal good.

The second element of a sound legal punishment theory is a clearer understanding of the good of the community and not just the good of individuals. Consequently, the “primary reason for state laws is to promote the community good of the state.” Thus, to justify legal punishments we focus not primarily on the criminal's good or that of other individuals, but rather on maintaining good order in a civil society. Consequently, rehabilitation, reformation, education, or expiation can't be the basic rationales for punishment. Rather, just punishment aims at maintaining good order in society and may contain both retributivist and consequentialist elements.