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1 of 1 people found the following review helpful
5.0 out of 5 stars Paying for crime, 25 Nov 2010
Hande Z (Singapore) - See all my reviews
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This review is from: The Problem of Punishment: A Critical Introduction (Paperback)
Since punishment is universally endorsed one wonders why anyone would bother to question the moral justification for it. David Boonin did so fearlessly, rationally, and persuasively in "The Problem of Punishment". In order to advance his thesis that it is morally wrong for the state to punish anyone, he began with a lucid study of the definition of punishment. This alone was a worthy philosophical exercise whether one agrees with his thesis or not. In this regard, he constantly contrasted the concept of punishment with established moral principles. The problem of punishment lies in drawing a line between two groups of citizens (and residents) - offenders and non-offenders. Setting people apart in this way, the state goes about not only harming one group, but intentionally doing so. The issue thus, is how does one find the moral justification to harm a group when it would clearly be morally wrong were it to do the same to the other group.

It may be easy to see that the idea of intentionally harming someone is wrong and many would simply shrug off incipient objections by holding that it is a necessary evil. That is a superficial response to the problem and indeed, proves the point Boonin wished to make, that punishment is an evil. The closest philosophical defence to this idea of "necessary evil" is the defence based on consequentialist arguments. Boonin addressed both Act and rule utilitarianism and meticulously built his arguments as to why he thought they were unjustifiable. He addresses some of the major objections to utilitarianism and explained his support for them; one such objection is that the application of utilitarianism insofar as it exempts the wrong if the consequence is that a greater good is achieved. That leads to the justification of punishing innocent people if the punishment of the innocent produces a greater good. He also reminded us of the distinction between "all murderers should be killed" and "all murderers should be killed because they are guilty of murder". It is the latter that must be justified in order to justify capital punishment.

Another justification closely analyzed is the principle of retributivism, often recognized by the principal principle of desert as justification. Boonin also discussed other forms of retributivism such as forfeiture based retributivism. This form essentially takes the position that if one kills, then he too may be killed. Boonin says that in the legal context, this is justified only if it is against the law to kill. He argued that if retributivism is a corrrect principle, then the state can punish a person for an immoral act. The problem is, not every immoral act is an illegal act. This destroys the very basis of desert based justification because by that, we are to avoid punishing an innocent person, and that is why we do not punish a person who is legally innocent.

Running through the set-up and then the flaws of the major justification for punishment, Boonin then examined other established solutions to the problem of punishment (for example, the solution based on `consent'); and finally, he explored and then dismissed the suggestion of a hybrid solution - when we find ourselves confronted with irremediable flaws in each of the main solutions, the tendency to ask if a combination might be the answer. Boonin explained why that can't be so, and he used the hybrid of consequentialism-retributivism model in illustration.

Boonin then summed up the big problem in the simple question, assuming that his arguments against the solutions were right, "What should we do?" It was a rhetorical question given the clear and meticulous arguments he made. Either we continue to punish and hope for the answer to emerge eventually, or we stop punishing people for breaking the law. He found the first morally reprehensible, but he acknowledged that most people would find the latter unacceptable. His provided two alternative answers. First, he theorized the principle of necessity as an excuse rather than a moral justification. This seemed somewhat dubious given his objection to punishment without a moral foundation. Hence this idea was given scarcely a couple of pages. His main alternative theory against punishment was based on an enhanced "victim-restitution" model. Instead of punishing the offender, should concentrate on repairing the harm to the victim of crime. Boonin argued that this is an attractive alternative. Restitution can erase the harm although it cannot erase the wrong. He reminded us that "punishment can no more erase a wrong than restitution." He was prepared to accept punishment as morally justifiable if it could erase the wrong.

This was a well thought through and argued book even if we might not agree with the author on every point, we might not likely find an answer to the jurisprudential problem of punishment ourselves. If this book interests you, I would also recommend H L A Hart's "Punishment and Responsibility" (1968), and C L Ten's "Crime, Guilt, and Punishment (1987), the latter, sadly, is out of print.
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The Problem of Punishment: A Critical Introduction
The Problem of Punishment: A Critical Introduction by David Boonin (Paperback - 14 April 2008)
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