I remember we had a good discussion a while back on the nature and purposes of punishment. I argued that defense against the criminal is the fundamental (and often only) purpose of punishment, and others pointed to the importance of retribution. I thought it would be useful here to reference the thought of Elizabeth Anscombe, as laid out in her insightful essay from 1978, “On the Source of the Authority of the State” (published in G.E.M. Anscombe, 1981, Ethics, Religion, and Politics: Collected Philosophical Papers Volume III, Basil Blackwell, Oxford.
Anscombe begins by asking a question that seems almost too simple: how can the state, with its monopoly on violence, be justified? She shows that a lot of the functions of the state in this regard are common to civil society and voluntary organizations. If you start from the premise that any person may justly intervene with violence “to resist violence committed without right”, then you are forced to admit that the state goes far beyond this, by investigating past actions, trying and punishing people, and forcing rules on them. Clearly, a voluntary society that used armed guards for such purposes would not be legitimate. What, then, makes the state legitimate? She dismisses the Hobbesian solution immediately, by arguing against the notion that civil authority arises from the transfer of rights already possessed by people without a state. For there is no private right of punishment in a state of nature. As she puts it” “civil society is the bearer of rights of coercion not possibly existent among men without government”. This has obvious implications in the domain of punishment.
To start, Anscombe asks if those subject to punishment are wronged by it. She answers this question in two senses. In the first sense, they are not wronged if they are truly guilty, as they are not “getting what they don’t deserve”. But in a second sense, they may be wronged, by “getting one’s deserts at the hands of someone who has no right so to inflict them”. Legitimacy is essential.
Anscombe concludes that punishment must be based on need, not on prescription. In other words, “the justification of the institutions of law, charge, trial, and sentence can only be the protection of people”. The other purposes of punishment flow from this concept, and do not exist independently of it. On the crucial issue of retribution, Anscombe is crystal clear:
“A retributive theory of punishment is merely a punishment theory of punishment; therefore correct, in that it declares that nothing can be properly called punishment if it is not offered as affliction deserved by ill-doing; but incorrect, in that it says that punishment of wrongdoing is eo ipso justified and needs no further reason.”
This is crucial. In her interpretation, “retribution” is simply another word for punishment. Retribution is not something added to punishment. When punishment is not strictly based on the need to protect people, then it becomes an abuse of state power. When the state abuses power, force becomes violence, and violence is sinful. (I wonder is Scalia understands this?). She goes on:
“For even if (which one may doubt) there is something intrinsically good about an evil-doer’s suffering, what is one man or some set of men that they should bring this about? Are they so good themselves? And are they in charge of the order of things, to see to it that such a good is brought about? It is obvious nonsense.”
Ancombe goes through a similar exercise to show that the other purported purposes of punishment– deterrence and reformation — also cannot stand in isolation from its primary purpose. As for deterrence, it is simply “putting affliction on people for something they have done, and therefore, if it is to be just at all, the something must be a known offense and the punishment deserved.” If that is the case, the deterrent theory is correct. But in isolation, it becomes an abuse.
As for the reformatory idea, Anscombe likens it to assimilating the state to a parent, which she dubs a “monstrous impertinence”. Why is it that some people simply because they exercise civil power should be able “dispose of others in this way against their wills for their own good”?. Even if the aim is noble, Anscombe denies that such a right exists. No, for the key question of legitimacy, necessity is key. All other purposes of punishment flow from this, and are distinctly secondary considerations.
Ad-Free & Subscriber Log-In