Academic

Brooks on the Moral Sentiments & Justifcation of Punishment

By Lawrence Solum

Thom Brooks (Newcastle University - Newcastle Law School) has posted Moral Sentiments and the Justification of Punishment on SSRN. Here is the abstract:

What is the relationship between our moral sentiments and the justification of punishment? One position is that our moral sentiments provide for punishment?s justification. My focus will be on Adam Smith?s theory of punishment and the role that moral sentiments play in this theory. First, I will argue that interpreters are mistaken to view Smith?s position as essentially retributivist. In fact, he defends a unified theory where punishment serves retributivist, deterrent, and rehabilitative goals. Secondly, I will argue that his view that punishment is warranted in cases where we should feel resentment fails to account for much of what we would want included in our criminal law. I conclude that while Smith?s account is problematic, it nevertheless may point us toward a more moderate position. Moral sentiments may be relevant to criminal law, although they should not serve as the sole determinant of what should be criminalized and how crimes should be punished.

And from the paper:

If resentment was central to the justification of punishment, then the criminal law in virtually every state is fundamentally in error. The problem, for Smith, is twofold. The first problem is that his theory of punishment appears to narrow. For example, it might exclude actions that are self-regarding harms, such as drug offences, or lacking in harmful consequences, such as found with many traffic offences. A second problem is that resentment cannot serve as the justification of criminal law. It is not any feeling of resentment that dictates our response to many legal considerations, but rather prudential considerations.

If resentment alone cannot justify all crimes we believe should be part of our criminal law, then how might moral sentiments figure into our thinking about the criminal law? Let me offer a few suggestions. Smith recognizes that law is necessary to maintain society.37 The law offers a means by which we may resolve disagreement and address wrongdoing. We should not find actions punishable solely on the grounds that they are wicked not least because our object is the just punishment of crimes and not immorality per se.38 It may be that our grave concern over immoral acts may lead us to criminalize them, but we may also choose to criminalize on non-moral grounds as well, such as prudential considerations.39 Moral sentiments may serve the purpose of helping us identify acts for criminalization without serving as the exclusive ground by which we determine what should be criminalized.

I had previously neglected Smith's theory of punishment, which is very interesting.  Highly recommended.

Full post as published by Legal Theory Blog on August 27, 2009 (boomark / email).