The role of the justification of punishment in arguments for the rule of law

Notice that a part of the Realist's moral justification of law so far is parasitic on punishment.  We have argued that people, in virtue of being creatures capable of planning their projects and lives and applying rules in that planning, deserve a certain system of government.  Government may cause other harms, but punishment is the one that is most deliberate and focused on individuals. A government should allow them to exercise this planning and rule following capacity in a way that enables them to avoid punishment.  To have the rule of law is to have a requirement that people be punished only if they violate laws with clearly predictable interpretations to particular situations.  Austin tied law conceptually to punishment and the realists would say that we determine what the law is by seeing when people are actually punished  or released. 

This brings us back to Confucius' argument from the first week of class. Does justifying the rule of law require us to justify punishment?  If punishment is morally wrong, then shouldn't we bring order to society via education and strengthening families and moral attitudes rather than punishing and rewarding people for bad and good behavior?  If punishment is not justified, then what role does punishment play in justifying the rule of law? Punishment is inherent in the conception of rule by law—are we blurring the two conceptions?

The justification of punishment is an extremely well worn path in moral philosophy.  Almost everyone knows the outlines of the issues.  There are essentially two broad candidates for a justification: Utilitarian and Kantian (Teleological or result oriented and Deontological or duty based).  We sometimes call a Kantian justification a retributive justification. A retributive (deserves it!) justification looks to the past.  A utilitarian justification looks to the future.  One reason the issue is still unsettled is that both theories are exceptionally good at criticizing the alternative--considerably better than at justifying punishment themselves.

Kantian argument is characterized mainly by rejecting utility as a consideration--rejecting the possibility that we can justify punishing anyone by citing the results of that punishment.  Kant characterized this a using a person as a means to some government policy and rejected it. The only justification for punishment is that the people being punished deserves to be punished because they did something (morally or legally) wrong without a valid excuse.  Punishment must be only in answer to crime, proportionate to the badness (harm) of the crime and the degree or responsibility.  (P = RxH).

The utilitarian justifications are much more varied. They include deterrence, reform, specific deterrence, steam outlet, public education, expression of social horror at certain acts and so forth.  The idea is that punishment is supposed to accomplish one of these goods and thus the harm caused to the person being punished is outweighed by the benefit to society as a whole.  Two problems plague the utilitarian justification.  One is that it seems to allow punishing innocent people if that will benefit society.  The other is that the empirical data undermines most attempts to show that punishment actually decreases crime.  In this regard, Confucius (whose attitudes seem to be utilitarian) turns out to have been close to correct. 

Retributive justifications may seem to be better off, but utilitarians can push them into an equally uncomfortable position.  Why, they ask, is it right to punish someone who deserves it?  This question exposes the weakness of the desert justification--it presupposes a system of punishment, does not justify it.  Of course, given that system, we should punish only for crimes, but it gives no answer to Confucius' question: Why have a system of defining and punishing crimes in the first place?  Retributivists usually are at a loss to give a non-circular answer without appealing to intuition.  Since the intuition might be a product of the practice of punishing, this may be circular too. In addition the retributivist now has to rely on an intuitive approach to morality, which has its own meta-ethical problems.