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29 Am. J. Juris. 29 (1984)
Is There a Rationale for Punishment

handle is hein.journals/ajj29 and id is 33 raw text is: IS THERE A RATIONALE FOR PUNISHMENT?* JAMES P. STERBA IT IS A COMMONPLACE IN moral philosophy that circumstances can change the morality of an act. Thus, a rationale for paying one's taxes under certain circumstances (e.g., when taxes are being used for the public good) may not be a rationale for paying one's taxes under other cir- cumstances (e.g., when taxes are being used for grossly immoral pur- poses). Unfortunately, philosophers have not taken this commonplace sufficiently to heart when reflecting upon a rationale for punishment. For in evaluating various rationales for punishment, philosophers have rarely noted that a rationale for punishing for a broad range of criminal activity under ideal circumstances in which justice prevails may not be a rationale for punishing for the same range of criminal activity under non-ideal circumstances in which basic injustices obtain.1 In- deed, failure to note the importance of ideal and non-ideal circumstances to the task of providing a rationale for punishment has led many philosophers to overstate what rationale there is for punishment in the relatively non-ideal societies in which we live and work. In what follows, I hope to go some way toward rectifying this deficiency in previous philosophical accounts of punishment by first presenting what I take to be a morally defensible rationale for punishment under ideal cir- cumstances and then presenting what I take to be a morally defensible rationale for punishment under the relatively non-ideal circumstances in which we live and work. * An earlier version of this paper was presented at the Western Division Meeting of the American Philosophical Association in Milwaukee. I wish to thank Hugo Bedau, Alan Dershowitz, Carl Wellman and George Schedler for their comments on this ver- sion of the paper. 1. One philosopher who has noted the difference between ideal and non-ideal circumstances is Jeffrie Murphy in his Marxism and Retributivism, Philosophy and Public Affairs (1973), pp. 217-243. Murphy, however, contents himself with arguing that a Kantian social contract theory of punishment in which the criminal wills his own punishment is formally correct (i.e., coherent or true for some possible world) but materially incorrect (i.e., inapplicable to the actual world in which we live). Thus, Murphy neither specifies the requirements of such a Kantian social contract theory of punishment nor discusses to what degree such a theory would be inapplicable in the relatively non-ideal societies in which we live and work, as I propose to do in this paper.

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