Liberalism and Punishment
Punishment has been a practice since the early existence of civilizations; it is usually incorporated with the concept of retribution and has been believed to justify offenses in different domains. However, the evolution of culture and the advent of numerous theories regarding human behavior challenged the principles of punishment as far as efficiency and credibility are concerned. Likewise, punishment in its simplest context poses a threat on ideologies encompassing human welfare, such as Liberalism.
Punishment, in a traditional perspective, is viewed as society’s retaliation over moral offenders, with the austerity of the sanctions being equal to that of the violation committed. Punishment, as tradition suggests, has a vast nature which makes its effects on liberalism subjective, a large part of this is because the ideologies from where varying methods of punishments are grounded also come from varying frameworks and philosophies. The modern perception of punishment is regarded with retributive implications, regardless as to what extent retribution can justify punishment.
Punishment imposed by the law to an offender or violator for instance is brought about by the offense committed by the certain individual. Such form of punishment is not to be confused with the metaphorical sense of the word which implies substantial amounts of pain. A philosophical perspective of punishment, on the other hand, does not consider the literal and/or metaphorical sense of the practice. The diverse definitions are also from how punishment is to be justified; the justification of punishment per se is different from justification of the specific punishment executed on individuals (Bedau). .
Liberalism meanwhile is a diverse political position with basic concept concerning liberty an underlying emphasis on the free will, at least to the extent of pursuit over one’s perceived best interest (Matravers 39). The main liberalist thought constant in various works suggests that individuals have their own goals to achieve and purposes to serve, and since humans are given supreme mental capabilities, the purposes and goals of each individual are different. The root idea, liberty, encompasses several factors such as individual rights, freedom, toleration and the rule of law (Matravers 39).
It is notable that Liberalism does not highlight the importance and the role of social jurisdiction over a particular individual. Likewise, an individual is only subordinate to the rule of law up to a particular extent, yet the law’s reason for executing punishment is for the vindication of the people which immediately counters liberalist central advocacy. It is also to be argued that every individual has rights, and such rights cannot be taken away or sold to the highest bidder.
Freedom of speech, freedom of expression and freedom from arbitrary arrest may be cliché statements, but its is considerably humane for a person to practice such rights as long as no one is on the receiving end of any negative impact such rights may bring. These distinct rights to people, may not be disrupted, hindered, nor manipulated by social intervention because liberalists argue that the only role of society is only limited to preventing harm from coming an individual’s way (Matravers, qtd. in Mill 39).
Liberalism, despite its vast concepts, has some common and recurring elements, one of which is the concept of justification (Matravers 40). It may incite action totally out of tune with its ideology. However, action and motive go hand in hand with each other, in this sense, immoral actions are reasonably justified and must be proven vital in order for it to give honor to the human capacity of free will.
In the subject matter of punishment, a liberalist only intends to find justification to the questions; does punishment contribute to a person’s individual quest for the ultimate good? If so, then how does punishment contribute to achieving such goal? Conversely, punishment or a particular system of bringing peace and order cannot determine all the conceptions of what is good.
The philosophy of punishment is broad; however it has certain characteristics that will help determine its threats to liberalism. A good way to start is to analyze the context from which it is based, this way, it will be easier to contextualize what area of liberalism is being threatened or affected. The consequentialist approach to punishment prevalent during the post war period, for instance, has underlying principles that pose a threat for liberalism.
Based on the implications of its ideology, the nature of consequentialist sanctioned punishments is based on the consequences of a particular crime which is subject to the law’s deliberation. It is notable that one of the intents of consequentialist punishment was for crime prevention (Duff 57), but an individual is not given the opportunity to choose what would best contribute for him to achieve the ultimate good as it is left to the discretion of prosecutors and the deciding body. Therefore, it is a simple cause and effect logic which tend to violate certain articulations of liberalism in its simplest rationale.
R. Antony Duff’s argument manifests support for the idea as he suggests that there are certain angles wherein punishment could be understood, beyond the platonic justification of crime prevention (Duff, 57). He uses the moral flaws infesting the consequentialist method as a means to justify that punishment has a diversity of implications. Duff simply states that one of the elements affecting liberalism is the expressive manner of the consequentialist punishment and punishment’s distinction from penalties (Duff, 60).
Consequentialist punishment as a form of expression primarily raises three vital questions: what is being expressed; why is it being expressed; and to whom is it being expressed (Duff 60). A reason behind this is attributed to the fact that expression is an act that does not have a specific recipient; a particular sentiment is being expressed regardless if it is within an individual’s plain of comprehension or not (Duff 61).
In the concept behind consequentialist punishment, Duff (60) connotes that the ideology expresses disapproval or condemnation brought about by violations and crimes: “Punishment is a conventional device for the expression of attitudes of resentment and indignation, and of judgments of disapproval and reprobation, on the part either of the punishing authority himself or of those ‘in whose name’ the punishment is inflicted” (qtd. in Feinberg 98). This therefore creates an impact on liberalism for it either single-handedly or collectively expresses a dictatorial abhorrence while disregarding a criminal’s free will.
Duff primarily entails that the modern context of punishment is incorporated with morality or violations of social norms that lead to punishment. He then suggests that a retributivist approach done in a communicative fashion will more likely eliminate punishment’s threat on liberalism (Duff 57). Moreover, since the element of punishment is encompassed on the idea of paying social debts, a moral approach may aid in reviving the offenders morality.
A retributivist approach would mean that the focus of punishment to a certain violator is not just limited to the boundaries of its effects. The communicative approach encompasses the use of retributivist method of implementing a process in order to eventually constitute change in conduct (Duff 61). Considering that communication is a two way process between two agents, the communication of punishment then should highlight the offender, as a direct recipient of the punishment and not a mere example of why punishment should be done.
Making punishment a form of communication prompts a lawbreaker to repent for his transgressions and gradually bring him back the sense of morality (Duff 63). As such, executing punishment in a communicative manner will therefore bring the purpose of punishment to the offender’s domain of understanding (Duff 61), and it will not simply bring conduct change against his or her will.
Given a communicative treatment, liberalism then is consistent, though not entirely, with the principles of retributivist punishment, since free will and liberty per se is not deprived. The approach will provide an opportunity for a wrongdoer to asses his or her action thereby serving as a path to his or her self atonement. That way free will is exercised through moral repentance (Duff 67), and the communication disseminated by the punishment simply guides the individual in making the next move.
As previously mentioned, both punishment and liberalism are based on varying frameworks; they are also driven by varying reasons. A goal of liberalism for instance concerns the achievement of the greatest good, and since people have different perceptions of what is good, there is a slim chance that punishment may co-exist with liberalism. Since punishment has tendencies to suppress liberty in its purest form, the problem lies in the fact that passing down sanctions is done in a systematized manner, which cannot satisfy the various notions of good.
As mentioned, punishment attempts to rouse change, even if it is against free will. This also means an exercise of a certain power over an individual; and such employment would need justification far deeper than its supposed purpose. Andrew Von Hirsch primarily argues that the liberal state should not intervene with affairs that should be left to the individual’s own assertion. Von Hirsch simply defends the particular individual rights which are one of the tenets of liberalism being threatened by the institution and practice of punishment.
But in light of the arguments brought about by its supposed true essentials, punishment as a form of defense mechanism (Matravers 79 qtd in Farrell) does not affect the advocacies of liberalism in the strictest sense. Whether the form of punishment is on the extreme ends of being too brutal or humane, is not the main emphasis here, the importance should be on the question of how and why the need for it to be done. .
The diversity in context between punishment and liberalism may also be used to justify that the goals of the two principles are mutually exclusive. A primary suggestion is that if it is deemed in a different perspective. If such a thing is considered, this means that its principles would be in coherence with the liberalist call for individual pursuit of the ultimate good.
As Derek Matravers discusses, an individual who constantly inflicts harm to another will likely stop, once he or she is threatened by pain: “inasmuch as it is the aggressor who has (knowingly and willingly) bought it about that the victim must make the relevant choice, justice entitles the victim to choose that the aggressor, rather than the victim, will
Suffer the harm that, by hypothesis, one or the other of them must suffer (qtd. in Farrell 79).”
At first, morality may not appear as a key element in the argument that punishment has effects on liberalism, but Derek Matravers indicates that Duff’s implication notes that punishment would rouse a sense of repentance, which will then constitute the use of free will. This is because punishment should ideally constitute a penance which, though initially imposed by others on the criminal, he should ideally come to accept and will for himself (qtd. in Duff 523-54).
Liberalism is as diverse as its core concept; it has certain principles that are being threatened by the theories and motivations of punishment. Punishment meanwhile is just as broad with the term being used in a variety of aspects. Regardless of the theoretical framework being used, whether the principles of punishment threaten the very core of liberalism remains to be subjective. In both aspects, numerous factors should be put in to consideration and each factor determines the effect or the threat on both ends simply determines whether it is a threat or not.
Duff, R. Antony, Penal Communications: Recent Works in the Philosophy of Punishment. In Crime and Justice: A Review of Research. Chicago: Chicago University Press, 1996.
Matraverse, Derek. Issues in Contemporary Social and Political Philosophy. Buckinghamshire: The Open University, 2005.
Bedau, Hugo Adam. “Punishment.”. 8 July 2005. The Stanford Encyclopedia of Philosophy. 11 July 2008. ; http://plato.stanford.edu/entries/punishment/;.