Paper by Ronald J. Rychlak
When society uses its muscle to regulate conduct—to make certain actions criminal—it does so by punishing or threatening to punish wrongdoers. By what authority or for what reason can society bring its weight to bear on an individual who has violated that society's rules? For centuries, philosophers have sought to identify society's moral right to fine, incarcerate, or even execute a convicted criminal. Punishment requires that we do evil to a person, and evil in any form is difficult to justify. Yet, few serious scholars would advocate stopping all punishment. They instead seek rationales or justifications for the imposition of punishment.
The commonly identified theories of punishment are either utilitarian, in that punishment is justified because it leads to a better society by reducing crime, or they are retributive, in that punishment is justified because the convicted criminal is morally deserving of punishment. The utilitarian looks at the way punishment affects the potential lawbreakers. If punishment lessens crime, and less crime means a better, safer society, then punishment is appropriate. The retributivist looks at the person who has done the bad act and justifies punishment by focusing on moral culpability. While each of these schools of thought presents arguments as to why punishment may be desirable or even necessary, neither presents a completely compelling argument for society's right to inflict punishment on a specific individual. If society does have such a right, however, it should be possible to identify the source of that right.
One of the reasons for the failing of these two doctrines is that while they may recognize crime's impact on law-abiding society, they do not even attempt to deal with punishment's effect on law-abiding society. Just as punishment may impact on potential lawbreakers, it may also impact on those who abide by the law. To fully understand society's right to inflict punishment, one must recognize punishment's full impact on all segments of society, not just the potential lawbreakers. Only the denunciation theory of punishment considers punishment's impact on law-abiding society.
The denunciation theory of punishment holds that punishment is justified when the offender has violated the rules that society has used to define itself. The wrongdoer is deserving of punishment because he or she has harmed society and because he or she was aware of that harm when the wrongful act was undertaken. Society is the proper entity to inflict the punishment because it was the victim of the crime. Punishment leads to good social consequences by discouraging future acts of crime and by reinforcing societal values. Punishment thus serves to strengthen the ties that bind people together in a society and to satisfy the obligations that society (as an entity) owes to its members. As such, where other theories of punishment fail, the denunciation theory of punishment identifies the source of society's right to inflict punishment on a specific individual.
About the Author
Ronald J. Rychlak. Professor of Law, The University of Mississippi.
Citation
65 Tul. L. Rev. 299 (1990)