Punishment Moralism

• Published date: 01 September 2024
• Author: Shervin MirzaeiGhazi
• Date: 01 September 2024
• DOI: http://doi.org/10.1111/raju.12416

Ratio Juris. Vol. 37 No. 3 September (230–247)

This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution

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© 2024 The Author(s). Ratio Juris published by University of Bologna and John Wiley & Sons Ltd.

Punishment Moralism

SHERVIN MIRZAEIGHAZI*

Abstract. In this paper, I try to reconcile the vulgar (normative) definition of punishment with

the positivistic (purely descriptive) definition that separates the ethics of punishment from its

definition—punishment positivism. I will argue that although the vulgar definition has critical

issues, this does not mean that we should stop using normative concepts in the definition of

punishment. I will attempt this reconciliation by considering one of the prime arguments in

favour of punishment positivism—namely, definitional stop—and show why it doesn’t work.

I will proceed by presenting a functional argument in favour of what I call punishment moral-

ism: the idea that punishment should be considered as a response to perceived wrongdoing. This

definition, while using normative concepts, still remains descriptive. In this way, I hope to be

able to solve the problem of both views by combining their insights.

1. Introduction

According to what we may call the “vulgar view,” to use F. H. Bradley’s words,1 pun-

ishment can only be a response to moral wrongdoing. Not every infliction of harm in

response to norm violation can be considered punishment. As Bradley puts it:

If there is any opinion to which the man of uncultivated morals is attached, it is the belief in

the necessary connection of punishment and guilt. Punishment is punishment, only where it is

deserved. We pay the penalty, because we owe it, and for no other reason; and if punishment

is inflicted for any other reason whatever, than because it is merited by wrong, it is a gross im-

morality, a crying injustice, an abominable crime, and not what it pretends to be. We may have

regard for whatever considerations we please—our own convenience, the good of society, the

benefit of the offender; we are fools, and worse, if we fail to do so. (Bradley[1876] 2012, 24–5)

On this view, we cannot punish an innocent person or punish purely based on utili-

tarian considerations. When we inflict harm on an innocent person, the nature of our

action differs from when we do it to a guilty one.

In contrast, there is the positivistic view on which no normative or moral con-

sideration needs to be involved in the definition of punishment. This view can be

1 By this, I am not implying that Bradley himself adhered to this view.

* The author is grateful to Paul Russell, Matthew Kramer, András Szigeti, Wlodek Rabinowicz,

Björn Petersson, and two anonymous reviewers for Ratio Juris for providing helpful comments

on previous versions of the paper.

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Ratio Juris, Vol. 37, No. 3 © 2024 The Author(s). Ratio Juris published by University of Bologna and John Wiley & Sons Ltd.

Punishment Moralism

considered as a variation of legal positivism. Legal positivism, very briefly, is a

comprehensive thesis about the law’s content, nature, source, and validity, and its

relationship with morality.2 According to legal positivism, for example, the exis-

tence of a law depends not on its merits but on the existence of a system of gover-

nance. In other words, the existence of law is bound to the recognition of the

authoritative power of a ruling body, not to its role in bringing about moral ideals.

Ethical considerations, although closely connected to law, do not determine

whether the law exists or not. Therefore, the famous saying that “an unjust law

seems to be no law at all” is wrong if taken at face value. In our characterisation of

law, legal positivists claim, we should preserve the possibility of an unjust law.

There has been a long debate between critics and supporters of legal positivism,3

and I am not going to engage with the general thesis. In this paper, I focus on the

implications of legal positivism for debates on punishment. Therefore, my argu-

ments against punishment positivism should not be considered as arguments

against legal positivism in general.

To be a positivist in the case of punishment means that we should draw a dis-

tinction between questions about the nature and ethics—moral justification—of

punishment (Feinberg 1970, 95; Hart[1968] 2008, 4).4 Positivists usually state two

reasons for distancing from the vulgar view in this way: (1) to avoid confusion and

(2) to avoid presupposing the justifiability of punishment. For example, Hart be-

lieves that punishment—like property—is a complex concept. When we are deal-

ing with such a concept, we must differentiate between explanatory and

justificatory questions to avoid confusion. In this way, he distinguishes four

questions:

(1) The nature of punishment: What is punishment?

(2) The nature of the offence: Why are some actions forbidden and made offences?

(3) The general justifying aim: What justifies the institution of punishment?

(4) Distribution: Who and to what extent should be punished?

The first two questions consider the nature of punishment (and of crime),5 and the

other two are related to its ethics. According to Hart, philosophers try to answer

2 For an adequate summation of legal positivism see Kramer2018, 149–64.

3 Critics include Dworkin (1978; 1986); Finnis ([1980] 2011, 266–73); and Fuller (1958).

Supporters include Hart ([1958] 2017; [1961] 2012); Kramer ([1999] 2003; 2018); and Raz ([1975]

1999; 1995).

4 In a similar way, philosophers have differentiated between the nature and ethics of blame—in

other words, between the descriptive question What is blame? and the normative question

When/How should we blame? It is generally assumed that we can present a comprehensive

account of the nature of blame without considering whether or in what circumstances it is per-

missible, and then—once we have got clear on the nature of blame—go on to suggest a norma-

tive framework that answers those questions. So there might be some instances or kinds of

blame that are morally justifiable and others that are not. Moreover, it might be the case that we

need to alter our blaming practice to make it morally permissible.

5 The second question is somewhat ambiguous. It can be read as a moral question about the

moral justifications for criminalising certain modes of conduct, or it can alternatively be con-

strued as a jurisprudential question about the conditions constitutive of the criminalising of

modes of conduct. I owe this point to Matthew Kramer.