Comparative studies in justifying punishment

Abstract

(Uncorrected OCR) 11

Abstract of thesis entitled Comparative Studies in Justifying Punishment

submitted by QianWang

for the degree of Master of Philosophy at the University of Hong Kong

in August 2002

This thesis presents and examines three different approaches to justifying punishment-namely, goal-based, duty-based and rights-based approaches. My purpose is to explore whether we can justify punishment, and if we can, in what sense. My focus is on the particular goals, duties and rights a theory might invoke in justifying punishment. In particular, my discussion stresses the relationship between punishment as an institutional practice and individual rights (liberty).

My study adopts a comparative approach. I map Confucius's argument against punishment as an objection to IohnRawls's goal-based justification and as a challenge to Immanuel Kant's duty-based justification. Confucius's idea also motivates my exploration of an essential difference between punishment and coercion and my attempt to set a proper boundary for moral values in a political sphere.

My discussion throws doubt on the claim that punishment, by virtue of its deterrent effect, can maintain long-term public order. I argue that the duty of fair play can not place members of a society under an obligation to punish. I question whether one's right to self-protection by itself can subject others to the threat of punishment without violating their rights.

I propose that we conceive of punishment as a permissible socio-political arrangement under some conditions. Its acceptability, I contend, is not determined by a utilitarian cost-benefit calculation. I appeal to the right to equal concern and respect in the design and administration of basic political institutions (Ronald Dworkin 1984). Following Ronald Dworkin, I interpret this right as an independent normative ground for evaluating political decisions such as whether we should have a coercive social arrangement to sustain public safety, and if we do, how we should design it. I

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emphasise the function of individual rights as a trump over utilitarian goals justified by reference to overwhelming collective welfare interests, and as a veto on specific social arrangements that violate fundamental individual rights.

I conclude that punishment is a permissible institution to administrate and inflict coercive state power on individuals. It is acceptable in the sense that:

1) Compared with a merely coercive situation, the rule of law regulates the institution of punishment. The rule of law sets non-negligible constraints on the part of government and permits individuals to plan their lives with reasonable confidence.

2) Compared with other coercive methods of social control, such as telishment and therapeutic treatment, the institution of punishment operates with reasonable respect for individual dignity.