Zentrum für interdisziplinäre Forschung
Punishment Beyond Bentham and Kant
On the Plurality of Punishment Motives and their Relevance for Theories of Punishment in Criminal Law
Criminal punishment is the state’s intentional infliction of harm on its citizens for alleged criminal wrongdoing. How can such harm be justified – and does it matter how laypeople think about what the criminal law ought to achieve by punishing citizens?
In June scholars from various disciplines such as philosophy, law, social and developmental psychology, economics and sociology came together to discuss what motivates laypeople to punish wrongdoers, and how these motives matter for theories that try to justify criminal punishment.
10-20 years ago, empirical research suggested that laypeople are largely driven by retributive concerns when it comes to the punishment of criminal offenders. Retributivism entails that offenders ought to be punished in proportion to the severity of their wrongdoing because they deserve it. Desert is intrinsically valuable independent of any consequences the punishment might have, such as deterrence or rehabilitation (both often summarized within the theory utilitarianism), which are the major rivals to retributive approaches to punishment.
Participants of the workshop, photo: Universität Bielefeld/ZiF
The normative work on punishment theory largely also followed the theoretical distinction between retributive and utilitarian theories of punishment. Retributive theories, as mentioned, argue that punishment is justified simply because it is deserved. Utilitarian theories claim that punishment is justified by the consequences that the punishment has. These could be deterring the offender, deterring the broader public, rehabilitating or incapacitating the offender, or strengthening the norm-compliance of the broader public.
The aim of this workshop was to critically re-examine both the literature on the psychology of punishment and the theoretical discussion of how to justify criminal punishment.
In contrast to previous research in the field of empirical and normative investigation into the topic of punishment, the presentations at the conference pointed out that what motivates laypeople to punish is largely to communicate a message of condemnation to offenders about the wrongness of their actions, and an interest to receive acknowledge for that message from the offender.
Philosophically, the communicative framework can be used to justify the imposition of legal punishment, with its aim of communicating censure to the offender via punishment and to offer offenders ways of accepting blame in the form of legal punishment. Such a framework combines both retributive and utilitarian aspects of punishment theory while offering a new framework of thinking about theories in criminal law.
Another core aspect of the workshop was the interests of victims and their relevance in criminal law theory. Some researchers suggest that the rights of the victims can be used to offer a compelling normative justification for state punishment. When we accept that the rights and interests of victims matter normatively, this argument can be used to support restorative justice procedures as there are empirical studies suggesting that restorative justice serves many interests of victims after victimization very well.
A common theme that spans all the presentations was the question and challenge for researchers in these different disciplines of how they can make their own research speak to the work of other disciplines. In criminal law theory, this issue is especially pressing with many of the central concepts such as “justice”, which are conceptualized differently in psychology, law or sociology. But to get into a dialogue, a common concept is needed. Or, at least, knowledge regarding the different concepts can be used to prevent miscommunication. The workshop participants discussed ways of aligning work in different fields and how research in criminal law can make progress over the coming years.