Responsibility and Punishment b Purpose b Knowledge b Recklessness b Negligence b Strict Liability

Criminal punishment problematic b The harm it imposes on those who are punished – physical/psychological, jobs, family. b Costs that the punishment of criminals imposes on their family and friends. b Costs that punishment institution impose on other innocent parties – those wrongly convicted, financial costs of maintaining the criminal justice system

Purpose The agent had the conscious object of producing the effect in question -- its realization formed some part of a plan successfully executed by the agent.The agent had the conscious object of producing the effect in question -- its realization formed some part of a plan successfully executed by the agent.

Knowledge The agent was aware that it was practically certain that the result in question would be a result of his action.The agent was aware that it was practically certain that the result in question would be a result of his action.

Recklessness The agent consciously disregarded a substantial and unjustifiable risk that the effect in question would result from his action.The agent consciously disregarded a substantial and unjustifiable risk that the effect in question would result from his action.

Negligence b b The agent would have been aware that there was a substantial and unjustifiable risk that the effect in question would result from his action, if he acted as a reasonable person would. b b Two difficult questions: When are risks “unjustifiable”? What would a “reasonable person” do in the relevant circumstances?

Strict Liability The agent caused the effect in question, with or without knowledge, or even possible knowledge.The agent caused the effect in question, with or without knowledge, or even possible knowledge.

Punishment b “The imposition of hardship or suffering on a supposed offender for a supposed crime, by a person or body who claims the authority to do so.” McKinnon, pg.122 b Question for the chapter: What can justify the infliction of this sort of suffering? Instrumental – suffering is bad but the good it will produce.Instrumental – suffering is bad but the good it will produce. Denying that suffering is bad in itself – based on character/meaning/was it deservedDenying that suffering is bad in itself – based on character/meaning/was it deserved

b Consequentialist Considerations The actual consequences of the statute or rule, including its effects on behavior. The Moral theory according to which the rightness or wrongness of a given conduct, practice, or rule depends only on its consequences (or the consequences that it is likely to produce). vs. b b Retributivist Considerations Wrongdoers deserve to suffer in proportion to the gravity of the wrong they have committed. (Negative – who deserve it- necessary condition; Positive – get what they deserve – sufficient punishment)

Consequentialist Justifications of Punishment Incapacitating criminals by depriving them, at least temporarily, of the capacity to commit crimes.Incapacitating criminals by depriving them, at least temporarily, of the capacity to commit crimes. Deterring criminals (and potential criminals) by providing them with prudential reasons not to commit crimes.Deterring criminals (and potential criminals) by providing them with prudential reasons not to commit crimes. Reforming criminals by persuading them that they should obey the law and refrain from committing crimes. McKinnon, pg. 124Reforming criminals by persuading them that they should obey the law and refrain from committing crimes. McKinnon, pg. 124

Consequentialist case against strict liability b The law cannot deter unintentional infractions by threat of punishment. b The recklessness standard would deter as much, with fewer prosecutions, less punishment. b The negligence standard would deter all unreasonable risk-taking. What more could we want?

Consequentialist case for strict liability b It is difficult to prove the mental state of the perpetrator. b Strict liability induces an even higher level of care than does negligence liability. b Strict liability discourages the kinds of activity that can produce the effect.

Crime and Condemnation b Is there an indissoluble link between criminal punishment and societal condemnation? b Is it ever OK to punish (even severely) someone who did nothing morally wrong?

Purposes and Alternatives b What are the purposes of criminal punishment? What ends does it serve? b Why punish at all? b What are some possible alternatives? b When and why is punishment preferable?

Consequentialism b Consequentialism is the thesis that only consequential considerations should be relevant. b The best known version of consequentialism is utilitarianism (the best law is the one that maximizes total happiness).

Punishing the innocent b There are obvious consequentialist reasons for not (in general) punishing the innocent. b However, many critics of consequentialism have argued that in some cases, it would justify doing so: the anti-lynching thought experiment.

Publicity and Transparency b The standard consequentialist response to this objection is to fall back to “rule consequentialism” (rule utilitarianism). b The rule of utility applies only to public, transparent practices & institutions, not individual actions or decisions.

Two Remaining Problems b Consistency: If consequences are all that matter, how can the utilitarian justify sticking to a rule in cases where utility is not served? b Failure of generality: In some cases (strict liability, punishing the insane), utilitarianism may justify public practices that punish the innocent.

Malum in se vs. Malum prohibitum b Some acts of lawbreaking involve doing something inherently evil -- malum in se. b Others are evil only because they involve breaking the law. b Examples of malum prohibitum?

Malum Prohibitum & Strict Liability b If we object to strict liability on the grounds of fairness, would the same objection apply with equal force to rejecting the ignorance- of-the-law excuse in the case of malum prohibitum offenses? b Is the mental element equally innocent in both cases?

Broad and narrow positivism b Broad positivism (= moral/legal conventionalism). There is only the positive law: there are no objective, universal facts about morality, about what the law ought to be like. b Narrow (legal) positivism: in addition to the positive law, objective moral facts may exist. Legal validity is independent of moral justifiability.

b Utilitarian positivism: there are no natural human rights, nothing like a natural law. The only moral standard is one of the desirability of the consequences of the law. [Bentham] b Non-utilitarian narrow positivism. There is something like natural law (universal human rights, universal moral principles). Two kinds of (narrow) legal positivism

An Introduction to the Principles of Morals and Legislation Jeremy Bentham

Utility Conditions b To attach clear and precise ideas to the word utility, exactly the same with all who employ it. b To establish the unity and the sovereignty of this principle, by rigorously excluding every other. It is nothing to subscribe to it in general; it must be admitted without exception. b To find the processes of a moral arithmetic by which uniform results may be arrived at.

Utilitarianism b Utility is an abstract term b Contains three elements: Hedonistic theory of well-being: pleasure is good and pain is badHedonistic theory of well-being: pleasure is good and pain is bad Sum-totaling of well-being: pleasure and pain can be aggregated.Sum-totaling of well-being: pleasure and pain can be aggregated. Maximization of well-being: only that action that produces the greatest balance of pleasure over pain is the morally correct actionMaximization of well-being: only that action that produces the greatest balance of pleasure over pain is the morally correct action

The principle of utility b When Bentham talks of the principle of utility, he means the principle which prefers the greatest balance of pleasure over pain. b Bentham contends that as a matter of fact, people only (at bottom) pursue pleasure. This is a descriptive theory of hedonism. b Bentham also contends that what is good for people is just pleasure and the absence of pain. This is a normative theory of hedonism.

Principles adverse to utility b Bentham claims that a principle may be different from the principle of utility in two ways: It could be opposed to it: like asceticism, the view that pleasure is bad and pain is goodIt could be opposed to it: like asceticism, the view that pleasure is bad and pain is good It could be no principle at all: like the “principles” of sympathy and antipathy, where what is good or bad is just what strikes each person as good or bad.It could be no principle at all: like the “principles” of sympathy and antipathy, where what is good or bad is just what strikes each person as good or bad.

Asceticism b Bentham contends that asceticism is the result of a mistake: in observing that many pleasures, when overindulged, cause more pain than pleasure, ascetics conclude that all pleasure is bad b Bentham contends that if only a tenth of being on earth really subscribed to asceticism even for a day, they would turn Earth into a hell.

Sympathy/Antipathy b Bentham accuses politicians and popular figures of subscribing to this principle (my, how times change) rather than any consistent set of values. b Consists in approving or blaming by sentiment, without giving any other reason for the decision except the decision itself. b Sympathy/Antipathy are simply arbitrary, and are no good basis for morals or legislation.

Of the sources of pleasure and pain: When good things happen for a reason, they are rewards, when bad things happen for a reason, they are punishments. When things happen for no determinate reason, it is called a calamity if bad, or fortune if good. What follows are four sources of reward or punishment.

The sources: Pain/Pleasure attached to law is called it’s sanction. Cahn, pg. 627 b Physical When a punishment or reward is caused by one’s own actionsWhen a punishment or reward is caused by one’s own actions b Political When punishment or reward is caused by the lawWhen punishment or reward is caused by the law b Moral When punishment or reward is socially inflicted (by other people)When punishment or reward is socially inflicted (by other people) b Religious When punishment or reward is caused by GodWhen punishment or reward is caused by God

Utility as a source of morals and legislation In outlining the previous, Bentham has a particular goal: to demonstrate that utility is the best principle to base morality and the law off of. In outlining the previous, Bentham has a particular goal: to demonstrate that utility is the best principle to base morality and the law off of. It is better than asceticism or sympathy/antipathy, and can influence all human behavior through the sources of reward/punishment. It is better than asceticism or sympathy/antipathy, and can influence all human behavior through the sources of reward/punishment. What remains to be explained is how to apply the principle of utility. Bentham calls this the Hedonic Calculus. What remains to be explained is how to apply the principle of utility. Bentham calls this the Hedonic Calculus.

Hedonic calculus: Total Pleasure/Pain can be calculated using the following parameters: ① Intensity: How intense is the pleasure/pain? ② Duration: How long does it last? ③ Certainty: How probable is it to occur? ④ Proximity: Its nearness in time ⑤ Productiveness: How likely is it to generate more of the same? ⑥ Purity: How much pure pleasure, pure pain, or a mix of the two is it? ⑦ Extent: How many people are affected?

In Summary, Bentham thought that, b People are motivated by pleasure and pain-avoidance b The amount of pleasure in the world should be increased b Laws should increase the amount of pleasure in the community and not increase the amount of pain b Punishment should only be used when it was absolutely necessary and should be proportional to the offense; he did not believe in groundless, needless, ineffectual, or expensive punishment

Conclusion b Bentham and Mill’s Utilitarianism stated that people should act in a way that was the most beneficial for their community, country, etc. b Laws should also benefit most of society b “It is the greatest happiness of the greatest number that is the measure of right and wrong”

Thursday, 11/19 b Bentham’s view on utility/legislation b Finish Chapter 6 – Mixed approaches: The Hartian modelThe Hartian model The communicative modelThe communicative model The duty viewThe duty view Next week begin chapters 7 and 8Next week begin chapters 7 and 8