Eckhoff and the Purpose of Punishment in Criminal Law

Michael Travis BA/LLB (Hons)
June 2001, University of Auckland Law School

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Torstein Eckhoff’s essay “Justifications of Punishment” [1] makes it clear that he believes punishment (for criminal offending) should only be employed where the results are both just, and useful. Therefore, by contrast, he asserts that there should be no punishment if the results are lacking in any way – for example, where the use of punishment is:

i)                    neither just or useful,

ii)                  just, but without use, or

iii)                useful, but unjust.

There are of course various proponents of conflicting theories on this matter. Kant, for example, asserts justice as the only relevant factor when deciding whether or not to inflict punishment, while the utilitarians (obviously) assert utility as being the major relevant factor.

To more clearly understand the scope of this argument, and to help define my own opinion on the matter, I will attempt to give an account of the origins and purposes of punishment, and then weigh up the balance between justice and utility.

Origins of law and punishment.

Historically, punishment was meted out as a ‘self-help’ remedy to a criminal offence. In classical Rome this was called lex talionis (retributive justice). Many offences such as assault or theft were delicta privatis (private offences), and only treason, murder, and destruction of public property were crimina publica (state offences).

Similarly, early Anglo Saxons enforced the criminal law through private blood feuds (which could spark an endless chain of feuding), banishments, tariffs and so on. This feudal system evolved into a scheme whereby victims would be monetarily compensated by the offender in the case of murder, assault, and so on.

Eventually, as in Ancient Rome, the criminal law was secularised, and in the 12^th Century a common law emerged. Under the common law, punishment moved again from the financial to the physical as the state assumed the role of punisher. Convicted offenders could now be executed, imprisoned or branded. Consequently, a wrongdoer could no longer be ‘saved’ by private settlement.

The purpose of the criminal law (a modern analysis).

Law operates as a mechanism for social control and the regulation of conduct, and should attempt to reflect “the fundamental social values” of society (realistically, these are determined by the majority). [2] Consequently, punishment is often thought to be the method by which these values should be reinforced, and by which we can secure compliance with the law.

This requires the identification of ‘criminalised’ conduct, as well as an evaluation of who should be punished, and to what extent. This is the area in which opinions seem to differ. Clarkson gives the example of penalising traffic offences with life imprisonment - if prevention is the sole aim of a legal system, then this punishment will probably secure total compliance with the law, because it is so excessive.

However, if justice (or just deserts, as defined by proportionality) is also an aim, this penalty should be considered too severe for the crime. Punishing illegal parking with life imprisonment would therefore be unjust. As classical theory describes it, “punishments must be proportional to the interests violated by the crime.” [3]

So what are the reasons behind punishment? A penal system may try to incorporate any number of the following goals:

i)                    denunciation: a ‘marking’ of the fact that a law has been transgressed as a way of showing disapproval,

ii)                  education: to teach an offender that they have transgressed, and how to prevent future offending,

iii)                retribution: punishment as a reciprocal action, i.e. just deserts,

iv)                reform: to rehabilitate an offender so that they will not re-offend (similar to education),

v)                  incapacitation: to prevent recidivism by killing, or physically and spatially restraining the offender,

vi)                deterrence: by preventing crime through the fear of its penalties (supposedly more effective when would-be criminals can see others being punished),

vii)              prevention: a combination of previous factors in the hope of preventing new or re-offending, and

viii)            justice?

Justice and/or Utility.

Eckhoff:

“The justification of punishment has usually been based either on utilitarian considerations or on principles of retributive justice. Through history, the pendulum has moved back and forth between these two approaches.”

Both useful and just.

If punishment is both useful, and just, what could possibly be presented as an objection? First we must determine what we mean by ‘useful’. Obviously punishment is ‘useful’ if it meets any of the goals delineated above. But the influences of these goals differ from society to society – so which goals must be satisfied before we can justify using punishment? Ultimately they all point towards prevention – either by would-be offenders, or by previously convicted offenders. This implies that any degree of prevention is enough to meet the definition of ‘useful’. This, in fact, is the hurdle that liberalists ask us to account for – as per John Stuart Mill (1859):

“The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others.” 

This, though, requires us to now ask what defines ‘harm’. Is it ‘the violation of the interests of others’ [4], or is harm against the common morality too broad a definition?  Feinberg (1984) offers the ‘thwarting, setting back, or defeating of an interest’ as a consequence of a wrongful action. But what is ‘wrongful’? This discussion can quickly become tautological.

When we look closer at this discussion of ‘harm’, we can begin to see a connection with Eckhoff’s method of authorising punishment. Clarkson describes ‘harm’ (or deep offence) as a minimal condition - one must also “establish that use of the criminal law is necessary and profitable.” Necessity thus requires an exhaustion of other solutions – where harms might be prevented without requiring recourse to punishment. For example, combating the smoking of cigarettes with education and advertisement, rather than prohibition. [5]

What should be considered is that, where punishment may well be just and useful, there is the possibility of other avenues of response. As per Clarkson:

“The criminal law should never be invoked unless there is no other way of dealing with the problem.”

This merits a strong case for the concept of restorative justice, which sacrifices the state monopoly on retribution, and allows the parties to determine their own ‘justice’ (as was historically possible). This also allows for a form of rehabilitative justice, as both facing up to a victim, and avoiding incarceration (and criminal association) may ‘restore’ the offender as well as the victim. Eckhoff, unfortunately, categorically denies the possible effectiveness of this scheme:

“[I]t is not reasonable to expect anything different and better given the extended trial that rehabilitation has had … Rehabilitative theories have lost their credibility.”

This strikes me as being a very blasé statement. Eckhoff doesn’t really wish to deal with rehabilitative justice so dismisses it out of hand, despite his own recognition that “supporters of rehabilitation will perhaps say that it has never been given a proper chance.” This is exactly the argument advanced by proponents of rehabilitative justice. Subsequently, the idea has been gathering support in many Western countries, and New Zealand has recently adopted a pilot scheme (which, by all accounts is proving both popular and successful). [6]

Just, but without use.

Where there appear to be no practical or physical benefits to be derived from punishment, it has been argued that justice alone provides reason enough. This argument places its emphasis on retribution. Eckhoff believes there to be two approaches, that of:

i)                    strong retribution: evil must be repaid by evil (a restoration of moral balance), or

ii)                  weak retribution: evil may be repaid by evil (includes a consideration of utility).

Immanuel Kant was a strong proponent of the former:

“[W]hoever has committed murder, must die. There is … no juridical substitute or surrogate, that can be given or taken for the satisfaction of justice.” [7]

           

Kant is also quite willing to punish in the absence of any practical utility, as evidenced by this example:

“Even if a civil society resolved to dissolve itself … the last murderer lying in the prison ought to be executed before the resolution was carried out ... in order that every one may realize the desert of his deeds, and that blood-guiltiness may not remain upon the people; for otherwise they might all be regarded as participators in the murder as a public violation of justice.”

Eckhoff simply denounces this idea as “one-sided and brutal”, and notes that it “does not appeal to [his] sense of justice.” Nicola Lacey provides a more independent, and thus relevant, criticism in her response paper [8]. Kant, she says, is “mystifyingly metaphorical”, but that theories of retribution are strengthened by being placed in “the context of a broader political theory” – for example, social contract theory.[

Nonetheless, using retribution as a sole determinant for punishment will appeal to many people - and the high support rates for the death penalty in the United States seems to bear this out. This is Biblical justice, ‘an eye for an eye’. [9] 

Useful, but unjust.

Arguments can be made on utilitarian grounds to favour the use of punishment where the outcome may not be just, but serves a useful purpose. To understand this we need to understand how utilitarianism works – it is a system where any action is defined as “right if it produces as much or more of an increase in happiness of all affected by it than any alternative action, and wrong if it does not.” [10] It is a consequentialist theory of ethics, concerned with goals.

Jeremy Bentham (1789), a leading proponent of the theory, describes “all punishment [as] mischief, all punishment is in itself evil.” He is discussing the evils of restricted liberty (for those who obey the law), and the evil of fearing or suffering punishment (by those who do not obey the law). Nonetheless, he recognised that the law could produce an artificial harmony between the general and individual interest – where the punishment is strong enough to outweigh the potential benefits of a crime the balance is misery, and thus constrains a person from offending.

The theory has been criticised by its own logic, though. Because ‘justice’ isn’t necessarily a relevant factor, utilitarianism might uphold severe punishments for minor offences where the excessive sentencing would create an overall deterrence. Nils Christie gives this example:

“[Norway has] passed a law making it compulsory to wear seatbelts … Here are noble tasks for deterrence. Just a few five-year sentences, and we would have done it.”

This is plainly unjust, but potentially very useful. Some evaluations of utilitarianism have countered this example by reference to the theory’s scale of penalties – the need to show that some wrongs are more serious than others, otherwise there is “a risk of either confusing common morality or flouting it and bringing the law into contempt.” [11] This is another part of utilitarianism’s ‘weighing’ process – if the overall respect for law is diminished then this is large evil to be considered against the good of ensuring compliance.

Conclusion: a smorgasbord?

While there is an obvious, common-sense appeal to Eckhoff’s primary assertion that punishment should only be employed when “we find it both useful and just,” we should recognise that his supporting arguments are based largely on moral intuitions. Lacey complains that Eckhoff doesn’t follow his moral assertions with “any rigorous argument either for the content of that sense of justice or for the consequent rejection” of other theories.

When we look at other justifications of punishment – useful/unjust, just/useless – we see various validations that Eckhoff failed to clearly address. He concludes that “it is thus the combined impact of utilitarian and retributivist considerations which makes for acceptance in this and many other cases of punishment.” Yet this seems an unusual acceptance in the wake of his attacks on both utilitarian and retributive theories.

I agree that there is a need to approach the problem with a “more critical opinion,” but I think this critical opinion can be applied to Eckhoff’s own arguments. There may in fact be scope to inflict punishments outside of Eckhoff’s area of limitation, but there is an even more important need to question the use of punishment at all.

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[1] Duff & Simmonds Philosophy and the Criminal Law (1984).

[2] C.M.V. Clarkson Understanding Criminal Law.

[3] Taylor.

[4] Gross (1979).

[5] Profitability is less important for this discussion, but briefly is the weighing up of gains against ‘associated losses’.

[6] From a discussion with Warren Brookbanks.

[7] Immanuel Kant The Science of Right (1790).

[8] Lacey Punishment, Justice and Consequentialism: A Reply to Professor Eckhoff.

[9] There are even those (in the minority) who defend revenge itself as a justification, for example: In Defense of Revenge, from Medieval Crime and Social Control.

[10] Peter Singer, Practical Ethics.

[11] H.L.A. Hart Punishment and Responsibility (1968).