M.

Rodgers McClure
Punishment: The Very Idea

PUNISHMENT: THE VERY IDEA

Miriam Rodgers McClure
The University of Oxford
tel: 415-471-5151
email: miriam.rodgers@law.ox.ac.uk

I. INTRODUCTION
The morality punishment has always been a fraught issue. But in the mid-20th century, as
debates about punishment reached a fever pitch, H.L.A. Hart doubted these discussions had ever
been more confused.1 In his famous essay, Prolegomenon to the Principles of Punishment, Hart
diagnosed this confusion as a symptom of our general tendency to over-simplify matters and warned
us that until we learned to appreciate punishments complexity, we would remain unfit to assess our
institutions of punishment.2 But fifty years later, debates about punishments justification are no less
fraught. And this paper sets out to discover why.
Hart believed that the key to resolving the mounting confusion surrounding punishments
justification lay in recognizing that punishment presents multiple questions calling for separate
explanation.3 For example, there are questions about punishments definition, questions about its
justification, and questions about its distribution. Hart thought that the beginning of wisdom
(though by no means the end of it) is to distinguish similar questions and confront them separately
-- which he did in the Prolegomenon.4 But Hart answered questions of punishments definition too
quickly, listing five elements of the so-called standard case without asking whether any of those
features are [part of] the very idea of punishment.5 And in neglecting this question of definition, Hart
overlooked something important: punishment has a distinctive logic that requires distribution on
certain grounds. So the very idea of punishment does not allow for wholly separate treatment of
questions of its distribution and justification. Hart failed to realized that justifying punishment
necessarily involves justifying its distinctive distributive logic.
Harts error is symptomatic of a larger problem. We are not clear about the criteria for a
successful justification of punishment. The solution, it seems to me, is an adequate philosophical

H.L.A. Hart, Prolegomenon to the Principles of Punishment in Punishment and Responsibility: Essays in the
Philosophy of Law (Oxford and New York: Oxford University Press, 2008): pp. 1-27, pp. 1-3.
2
Hart, p. 3.
3
Ibid., p. 4.
4
Ibid. (emphasis added).
5
Ibid., pp. 4-5.
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definition of the concept of punishment that draws out the logically necessary features of
punishment, focusing our attention on those features calling for justification and illuminating the
interrelationship between punishments defining features. This paper revives Harts central project:
its main object is to provide a framework for discussing the complexities surrounding punishment.6
But while Harts approach was to distinguish different questions about punishment and confront
separately, this paper aims to show how a more complete answer to the question of punishments
definition informs our answers to the other questions of punishment and helps explain why
punishment's justification is so fraught.

II. DEFINITION
In the Prolegomenon, Hart defined what he considered to be the standard case of
punishment in terms of the following five elements:
1.

It must involve pain or other consequences normally considered unpleasant.

2.

It must be for an offense against legal rules.

3.

It must be of an actual or supposed offender for his offense.

4.

It must be intentionally administered by human beings other than the offender.

5.

It must be imposed and administered by an authority constituted by a legal system against which the
offense is committed.7

This definition of the standard case draws heavily from influential proposals by Anthony Flew and
S.I. Benn.8 Hart offered little elaboration, but he did add examples of sub-standard cases (including
punishments in families and schools, vicarious and collective punishments, and punishments of
persons known to be innocent) to prevent what he described as the definitional stop in
discussions of punishment.9 And his concerns about the definitional stop argument may also have
encouraged him to forgo any attempt to identify logically necessary features of punishment. Some
prominent early 20th-century theorists came to believe that punishment entails guilt and that this
insight was the key to overcoming the charge that justifying punishment by reference to its good
consequences encourages or permits punishment of the innocent as well as punishment of the
guilty.10 The basic idea was this: If punishment entails guilt, so-called punishment of the innocent is
6

Ibid, p. 1.
Ibid., pp. 4-5.
8
See Anthony Flew, The Justification of Punishment, Philosophy 29(111) (1954): pp. 291-307; S.I. Benn, An
Approach to the Problems of Punishment, Philosophy 33(127) (1958): pp. 325-41.
9
Hart (2008), p. 5.
10
The locus classicus for this view is Anthony M. Quinton, On Punishment, Analysis 14(133) (1954): pp.
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something other than punishment. Therefore, as a matter of logic, good consequences cannot justify
punishment of the innocent because that (i.e., punishment of the innocent) is oxymoronic. As Hart
recognized, this is an abuse of definition.11 For even if punishment did entail guilt (and he did not
think that it did), the question of whether (or when) the punishment of an innocent person is
justified is a genuine moral dilemma that cannot simply be defined out of existence.12 And the lesson
here is that one cannot resolve genuine concerns about punishments morality by building
normative features into punishments definition. That does not mean, however, that punishment
cannot, or should not, be defined by reference to its logically necessary features.13
Hart might also have been wary of attempts to define punishment because, like Flew, he
recognized that the term punishment is used in so many ways and applied in so many
circumstances that the ordinary meaning of the word cannot be explained by a list of necessary and
sufficient criteria.14 A philosophical definition of a concept like punishment, however, is not an
explanation of the ordinary meaning of that term.15 Instead, it identifies and explains the features
that distinguish punishment from other related phenomenon and calls out for special attention
those features calling for justification. Admittedly, talk of punishment is often loose, and to punish
sometimes just means to treat harshly. But these looser uses of punishment are parasitic of a
tighter, more analytically robust concept that identifies actions and institutions with certain
distinctive features. We use language to carve up the world in certain ways, and the job of the
analytic philosopher is to identify how we have carved up parts of world so that when we assess or
defend a phenomenon like punishment, we can ensure that we are assessing or defending that
phenomenon. We need a firm grasp on what the concept of punishment entails so that we see
clearly the problems posed by that phenomenon and so that we do not mistake the problem of
punishment for a more general problem (like how do we justify harming others?). Put another
way, we need an adequate philosophical definition of punishment to focus our justificatory efforts.
This paper will develop just such a definition, taking as its starting point Harts definition of the
standard case of punishment.

133-42.
11

Hart, pp. 5-6.

John Kleinig, Punishment and Desert (The Hague: Martinus Nijhoff, 1973), p. 13.
13
See Leo Zaibert, Punishment and Retribution (Aldershot: Ashgate, 2006), pp. 22-28.
14
Flew, p. 292; see also, e.g., H.L.A. Hart, The Concept of Law, Third Edition (Oxford: Oxford University Press,
2012), p. 73 (Very often the ordinary or even the technical, usage of a term is quite open in that it does not forbid the
extension of the term to cases where only some of the normally concomitant characteristics are present.).
15
Joseph Raz, The Morality of Freedom (Oxford and New York: Oxford University Press, 1988), p. 165.
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Harts definition of the standard case usefully suggests that punishment has at least five
features.16 Although here, I will state them in a different order than Hart to bring out the
interrelationship between these features. The features Hart identified are:
1. Punishment is an intentional action. (E.g., It must be intentionally administered by
human beings other than the offender.)
2. Punishment is carried out with a certain negative intention. (E.g., It involves the
intentional administration of pain or other consequences normally considered
unpleasant.)
3. Punishment is imposed on certain grounds. (E.g., It must be for an offense against
legal rules.)
4. There is someone on whom punishment is imposed. (E.g., It must be of an actual or
supposed offender for his offense.)
5. Punishment involves the exercise of authority. (E.g., It must be imposed and
administered by an authority constituted by a legal system against which the offense
is committed.)
I will not spend time here discussing the fifth feature because I do not agree with it.17 But I will
explore each of other features identified by Hart in turn, elaborating upon the features that
distinguish punishment from related phenomenon and focusing our attention on those that call for
justification.

1. The Intentional Action

The first feature of punishment Hart identified to which I would like to draw your attention is
that it is intentionally administered.18 Now, I take it that punishment involves doing something
intentionally (an intentional action) that causes the person punished to suffer some harmful result
like harm or deprivation.19 But the same is often true of compensation: some P intentionally imposes
16

Hart (2008), pp. 4-5.

There does not seem to me to be any relationship between punishment and authority that gives authority a
special place in an account of punishment. For one might punish a disloyal friend, an inconsiderate spouse, or even a
rude stranger without having or claiming any moral, legal or political authority over the person punishment. Some
theorists are skeptical about the idea that these are genuine instances of punishment, but I will not engage them here.
For a more developed defense of the view that authority is not necessary for punishment, see Zaibert, p. 21.
18
Hart (2008), p. 5.
19
In this section, I will use harm or harmful as shorthand for whatever unwelcome consequences the
punisher intends for the person punished. The next section is devoted to this negative intention.
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liability on some D to pay compensation some V, and in paying compensation to V, D suffers a

foreseeable loss. What distinguishes punishment is that the harmful result is, in Harts parlance,
intentionally administered. And this formulation rightly suggests that punishment is distinctive
because it involves more than just an intentional action causing a harmful result. Punishment also
involves intending and having a kind of control over that result. Admittedly, intentionally
administered is rather archaic, but it reflects a valuable insight that, at least in cases of direct
punishment, is more aptly captured by intentionally inflicted. So let us pause for as moment to
consider the notion of infliction in greater detail.
First, infliction is an intentional action. And while all genuine actions (as opposed to mere
happenings) are in some sense intentional, the relationship between intention and action is
complex. Causal theories of action like Donald Davidsons posit that the link between our intentions
(e.g., what we want) and what we do (i.e., our actions) is causal.20 The idea is that the things we do
(i.e., actions) are distinguished from the things that happen to us because actions are caused by the
agents intentions. But an agents intentions can cause the agent to make an unintended movement,
and this would not count as genuine action even if the unintended movement causes an intended
result. To illustrate, imagine that Jones intends to spill his drink near the window at a cocktail party
as a sign to his co-conspirators that the coast is clear for them to burgle his hosts art collection.21
Unfortunately for Jones and his cohorts, Joness ill intentions make him nervous, and his nerves
cause him to spill his drink before the coast clears. His intention to signal his associates by spilling his
drink caused him to give that signal in spilling his drink, but it does not follow that spilling his drink
was a genuine action in the intended sense. And so, as this counterexample shows, causation is not
sufficient for action. Nor is it necessary, provided that the agent can make adjustments to
compensate for the effect of consequences that would otherwise interfere with his intended course
of action.22 We might think of an agent as like a driver whose car is coasting down a hill.23 The driver
is entirely satisfied with the cars speed and direction, and so does not adjust its movements in any
way. But this does not mean that the cars movement is not under the drivers control. What counts
is that he is ready, willing, and able to intervene if necessary. Likewise, if you are lying in the
savasana (or corpse) pose at the end of a vigorous yoga class and do not adjust your body in any
way because you are entirely satisfied with your current position, your (lack of) movement does not
show that remaining in the pose is not an intentional action. What counts is that you feel in control
20

See Donald Davidson, Essays on Actions and Events (Oxford and New York: Oxford University Press, 1980).
Harry G. Frankfurt, The Problem of Action, American Philosophical Quarterly 15(2) (1978): 157-62, p. 157.
22
See Frankfurt.
23
Ibid, pp. 159-60.
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so that your movements are under your guidance and their course is guaranteed.24 Thus, as Harry
Frankfurt taught us, the most salient distinctive feature of actions is not their causal connection to
intentions, but rather the agents guidance or control over the course of action.25 To bring the point
back to intentions, one has control over the course of action in the relevant sense when the course
of action is moved and guided by ones intentions.
Second, infliction is a special sort of intentional action that cannot exist in the absence of
certain attitudinal conditions, namely the intention to cause a certain negative result.26 The next
section of this paper will explore this intention in greater detail, but for present purposes, it is
sufficient to say that punishment involves the infliction of harm (broadly construed). And the
infliction of harm cannot exist without the desire that the person on whom harm is inflicted in fact
suffers harm.
Third, the negative intention guiding the infliction of harm does more than directs the course
of action constituting the infliction; it also guides its intended concomitant result. Thus, the role of
intention in infliction can be characterized as follows:
a. An agents intentions guide the course of an intentional action and its intended
result.
And the role of intention in an action of type (a) can be contrasted with the role of intention in other
sorts of actions where, for example:
b. An agents intentions guide an intentional action that has an unintended result. (E.g.,
P is running down the stairs holding her phone and trips, accidentally breaking the
phone on the tile floor.)
c. An agents intentions guide an intentional action that causes an intended result in an
unintended way. (E.g., P points and shoots her gun at D intending to kill him, but her
weapon misfires into a nest of hornets that sting D to death.27)
d. An agents intentions guide an intentional action that causes an expected (but
perhaps unintended) result in an expected way. (E.g., P imposes liability on D to
compensate V, resulting in a loss to D.)

24

Ibid, p. 160.
Ibid.
26
See Frankfurt, p. 161; cf. David Pears, Two Problems about Reasons for Actions, in R.W. Binkley et. al.
(eds.), Agent, Action, and Reason (Toronto: University of Toronto Press, 1971): pp. 128-53, pp. 136-37, 139.
27
George Wilson and Samuel Schpall, Action, in Edward N. Zalta (ed.), The Stanford Encyclopedia of
Philosophy (Summer 2012 edition), available at <http://plato.stanford.edu/archives/sum2012/entries/action/>.
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e. An agents intentions guide an intentional action that causes the intended result in
the intended way, but the agent has no control over the result. (E.g., P places a large
bet on a horse, intending to make her fortune, and luckily wins.28)
Now, we can more clearly see how the role of intention explains the distinction between
punishment on the one hand and compensation on the other. The imposition of liability is an action
type (d): P performs an intentional action (i.e., imposing liability on D to compensate V) that has an
expected harmful result (i.e., harm or deprivation to D), but the result is not necessarily intended.29
That is, it might be all the same to P if D pays V himself or if D has insurance that will pay V. (And
even if P does want D to suffer harm, once she imposes liability on D, she has no further say in the
matter.) By contrast, if P punishes D, she intends for D to suffer harm. And more than that, her
intention guides the infliction so that she is in a position to control what and how much harm is done
to D. In other words, compensation involves an intentional action and an expected (if unintended)
harmful result over which the agent has no control. But punishment involves an intentional action,
an intended harmful result, and some sort of control over that result. And to say that punishment
involves infliction (an action of type (a)) captures these defining features.
But control is a matter of degree. In the simplest case, P inflicts harm on D directly. And if P
gives D forty lashes or locks him up in a cell herself and keeps the only key, P has complete control
over the harm done to D. This is clearly an action of type (a) for which the description the infliction
of harm is entirely appropriate. And assuming all of the other logically necessary features of
punishment are present, this would equally clearly count as an instance of punishment. Near the
other end of the spectrum is an action of type (c), where P intends to cause D harm and succeeds,
but has no control over the harm done to D. So if all P wanted was to kill D and her misfired bullet
hits a nest of hornets that sting D to death instead, she will have succeeded (luckily). But if she
wanted to kill D as punishment, she will have failed.
Then, in between (a) and (c) are actions of type (d), which seem closer to punishment but
still falls short due to the lack of control over the result. Here is an example: In one of TinTins
adventures, Prisoners of the Sun, the Incas have declared that Tintin and his friend Captain Haddock
will be put to death on a pyre set alight by the Sun god himself as the Suns energy is focused
through a lens.30 Luckily for the prisoners, the Inca prince allows Tintin to choose the hour of their
demise. He chooses the date and time of a known solar eclipse. And so at the appointed time, the
28

Joseph Raz, Being in the World, Ratio 23(4) (2010): pp. 433-452, p. 441.
In the case of compensation, the expected result is unintended, but not unintentional we reserve that
term for accidental outcomes.
30
Herg, Prisoners of the Sun (Leslie Lonsdale-Cooper and Michael Turner (trans.)) (London: Mammoth, 1990).
29

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Punishment: The Very Idea

moon eclipses the sun, blocking the rays that would have set fire to the prye. The terrified Incas,
believing that Tintin has control over the Sun god, insist that they were only sacrificing and not
punishing the foreigners. This might have been a ruse on the part of the Incas to avoid the wrath
of the Sun god (and of Tintin himself), but their response is nonetheless perfectly intelligible. The
Incas intended to cause Tintins death, and had there been no eclipse, the Incas would have
succeeded. But insofar as they attribute agency to the Sun, they nonetheless would have believed
that they had no control over whether Tintin lives or dies. From that perspective, the Incas were
merely offering Tintin and Haddock up to the Sun god who would decide their fate(s).
So what if P sets an impeccably trained attack dog on D, who attacks in an expected way and
will stop immediately upon Ps command? This case seems closer to an action of type (a) than of
type (c). For although Ps control over the harm done to D is indirect, it is present and (near)
complete. And if P set out to punish D, I think she will have succeeded (provided the other logically
necessary features of punishment are present). Though if the dog was less well trained, it will seem
less appropriate to call that an instance of punishment. The upshot is that punishment is distinctive
because, unlike other related phenomenon involving intentional actions that bring about foreseen
negative results like compensation and even sacrifice, punishment also necessarily involves an
intention to bring about that negative result and it requires a certain amount of control over that
result for its successful performance.

2. The Negative Intention

Up to this point, I have used the term harm loosely to capture the intended negative result
for the person punished in paradigmatic cases. But the question of whether any specific negative
intention is part of the very idea of punishment is open. And we will turn to it now. Hart suggested
that the punisher intends to inflict pain or other consequences normally considered unpleasant.31
And in doing so, he makes a slight but significant departure from Anthony Flews earlier proposal
that the standard case of punishment is an evil, an unpleasantness, to the victim[.]32 The difference
is important because while Flew suggests that the punisher intends for the punishment to be

31

Hart (2008), p. 5. Note that although we are discussing the aims and intentions of the punisher, we are not
concerned with what aims tend to justify punishment. For we must identify the defining aim of punishment before we
can assess its supposed justifying aims. Cf. John Finnis, Retribution: Punishments Formative Aim, The American
Journal of Jurisprudence 44 (1999): pp. 91-103 (objecting to the characterization of punishment as essentially involving
the infliction of pain and arguing that its formative aim is suppress the will which took for itself too much.).
32
Flew, p. 293.
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experienced as an evil or unpleasantness, Hart seemed to deemphasize the experiential element

by allowing for punishments that are merely normally considered unpleasant.33
Words like punishment and coercion are success words that are also frequently (and
legitimately) used to name failed attempts, and Hart might have used the phrase circumstances
normally considered unpleasant to leave room for such linguistic flexibility. For example, one might
speak of a coercive threat when there was only the unsuccessful threat and no actual coercion.
(Imagine that Abe threatens to shoot Bea if she does not hand over his purse immediately, but Bea
ignores the threat, giving Abe a swift kick in the groin and running off). Likewise, one might speak of
inflicting a punishment when there is only a failed attempt. To see one way in which an attempted
punishment can fail, imagine the following conversation between Smith and Evans. Evans sees Smith
pummeling their mutual enemy Jones and asks Smith what he is doing. Smith looks up, furrows his
brow, and says, Cant you see Im punishing Jones? As it turns out, Jones is a bit of a masochist.
Evans knows this and exclaims, Smith, man! Cant you see that Jones is loving it! Now, perhaps
Smith is nonplussed. He might admit that he is doing a rather poor job punishing Jones, but insist
that he is punishing Jones all the same. So Evans is using punishment to mean success, while Smith
is using the term to cover both a failed attempt as well. Both uses of the term punishment are
perfectly legitimate. But in the interest of conceptual clarity, Smith (and Hart) would be better off
admitting that Smiths attempt at punishing Jones has failed rather spectacularly because while
Smith intended to make Jones suffer, he only succeeded in giving Jones pleasure.34
But successful punishments lie along a continuum. And at one end are punishments that
succeed only in the sense that the subject of punishment is aware that he is being subjected to
punishment. But what makes punishment a more complete success in the eyes of the paradigmatic

33

Two notes. First, I take it that Hart and Flew use unpleasantness in conjunction with pain or evil to
broadly cover both physical and mental suffering, as well as deprivation. But as we will see, neither formulation hits
quite the right note. Second, Flew likely used the term evil in the sense of doing or tending to do harm rather than
in the sense of being morally bad. But, as J.D. Mabbott points out, the term evil always carries with it this latter
connotation. J.D. Mabbott, Professor Flew on Punishment, Philosophy 30(114) (1955): 256-65, p. 257. And this may
tempt us to define away the debate about whether the pain or deprivation suffered as deserved punishment is, in fact,
morally bad. Pain does not have the same moral connotation.
34
Actually, Smiths attempt at punishing Jones will not have failed completely provided that Jones is at least aware
that Smith is trying to punish him. Smiths failure would be even more complete in the following circumstances:
Imagine that Smith attempts to punish Jones by secretly destroying the azalea bush in Joness garden. But unbeknownst
to Smith, Jones hated those fuschia azaleas and only refrained from destroying them himself to avoid his wifes wrath.
Here, Smiths attempt ones has failed so completely we might hesitate to apply the term punishment in the
circumstances. For Smith has not only done Jones a service, but Jones has no idea that Smith has even attempted to
punish him. The point is that, at the very least, a person subjected to punishment must be aware of that fact. And so
punishment necessarily involves a minimal experiential element (i.e., awareness on the part of the person punishment).
But this has little justificatory importance.
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punisher (or spectator)? Is the key to successful punishment a negative sensory experience, as Flew
suggested? Other theorists have argued that while a painful experience may once have been the
mark of successful punishment, in modern civilized society, the fact of deprivation of something
good even (or especially) when it is not painful makes punishment a success.35 And still others
argue (rather opaquely) that thinking about punishment as essentially experiential is a mistake
because its essence is subtraction on the level of the will (i.e., successful punishment is
something contrary to their wills.).36 Each of these views is incomplete, but adds something the
other lack. First, successful punishment might involve pain or some other negative sensory
experience. But punishment involving pain fails insofar as the subject enjoys it. Second, successful
punishment might involve deprivation. But punishment involving deprivation fails insofar as the
subject does not care about the thing of which he is deprived, and so does not have some sort of
negative experience. Third, while successful punishment must involve something that the subject
does not want to be subjected to, that something is not just a subtraction on the level of the
will. For that subtraction will take the form an unwelcome sensory experience (e.g., physical pain
or mental suffering), the deprivation of something good, or both.37
Perhaps this is a more precise formulation of the success criteria for punishment: Successful
punishment of D hurts or hinders D in the sense that it injures, damages or disadvantages him. This
covers successful punishments involving physical pain, mental suffering, deprivation, and
something contrary to their wills.38 But as hurts or hinders is slightly anachronistic, I will to use
harm as shorthand. In any case, the upshot is the same: punishment loses its point if it is not
meant to hurt or hinder or harm. And this defining aim distinguishes punishment from many other
actions that are harmful and are known to be harmful, but are nonetheless not done to be harmful.39
For example, we might incarcerate a mentally ill person because she poses a danger to herself or
others, but if we could adequately address this concern through less painful means (e.g., therapy
and medication), we would prefer to do so.40 On the other hand, successful punishment harms,
injures, damages or disadvantages the subject. And because attempts aim at success, punishers aim
to cause some harm.
35

The locus classicus for this view is J.D. Mabbotts 1955 paper, Professor Flew on Punishment.
Finnis, p. 98.
37
Punishments justifying aim might be a subtraction on the level of the will that removes from the unfair
advantage the wrongdoer gained in exercising too much freedom or autonomy. See ibid. But defining punishment as
the suppression of the will rather than as the infliction of harm ignores an element of our shared conception of
punishment and so fails to capture the phenomenon whose justification is at issue.
38
This formulation also avoids the overly moral connotations of evil.
39
J.R. Lucas, On Justice (Oxford: Clarendon Press, 1980), p. 125.
40
[Protective custody per Lucas?]
36

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3. An Objection and Additional Feature

At this point, I will pause to consider an objection to the idea that punishment necessarily
involves an intentional action and an intended result. That is, punishment allows for a certain
division of labor that complicates matters. For in the paradigmatic criminal case, there is a clear
division of labor such that a judge determines and imposes Ds punishment, which is carried out by a
jailor. In this case, the judge develops the intention to harm D as punishment and determines the
amount of harm to be imposed, but his control over the nature and extent of harm done to D is
indirect. The jailor, on the other hand, has direct control over the harm done to D, but might not
fully share the judges intention. And this raises a cluster of questions about keeping intention alive
in a bureaucratic setting. But the challenge can be met. In the easiest case, both judge and jailor
share the intention to harm D as punishment although that is not necessary. Intentional collective
action does not require that an intention be shared by every individual involved in carrying out the
intended activity (e.g., punishment), so long as the actors are obligated to the others to do their
part.41 And this can explain the the role of intention in punishment even in a highly bureaucratic
setting like the modern Anglo-American criminal justice systems.42
Whats more, institutions like the state are moral agents that can and do act intentionally. As
Robert Goodin taught us, the state is capable of embodying goals, values, and ends; [and] it, too, is
capable (through its legislative and executive organs) of deliberative action in pursuit of them.43 To
illustrate this point, imagine that the state levies a mileage tax on car owners to cover the cost of
road repairs. Some drivers think that this is a punitive tax that punishes them for driving, and some
legislators might even agree. This is a perfectly intelligible claim, even if it is mistaken (say, because
the mileage tax replaces a gasoline tax that failed to cover the cost of road repairs as drivers started
choosing more fuel-efficient vehicles). The legislature is an agent with an internal decision-making
mechanism constituted by the rule-based processes under which it operates.44 And for present
purposes, this perfectly mimics the internal decision-making process that defines moral agency in

41

See Margaret Gilbert, Sociality and Responsibility: New Essays in Plural Subject Theory (Lanham, MD:
Rowman & Littlefield, 2000), p. 494-5.
42
Admittedly, intentionally administered more clearly covers cases where the punishers control over the
course of harm is present but indirect. But in suggesting such a division of labor, Harts formulation fails to capture the
essence of punishment in direct, non-institutional cases. And if we construe intentionally inflicted broadly as a
complex, instrumental action, we can use this formulation to cover both the direct and indirect cases.
43
Robert E. Goodin, The State as a Moral Agent, in Alan Hamilton and Philip Pettit (eds.), The Good Polity:
Normative Analysis of the State (Oxford: Basil Blackwell, 1989): pp. 123-39, p. 129.
44
Ibid., p. 129-30.
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individuals. (We even have evidence of both the deliberative process and the legislatures intention
in enacting the mileage tax in the form of the legislative record.)
But the internal decision-making process of institutions like the legislature is not exactly like
that of individuals because individuals can make spontaneous decisions. Legislative action, however,
cannot be taken without formal consideration and so must be deliberate. And this feature of
legislative action points us to an additional feature of punishment. Namely, punishment is also a
deliberate action. And it might be distinguished from related phenomenon like provocation because
provocation involves spontaneous action. Punishment and provocation both have a punitive spirit,
and this provides the conceptual link between the two phenomena. But while a provoked person
sees red and spontaneously strikes back, a punisher is supposed to see clearly and apply a
measured strike (even if the measure is incorrect). And measured implies an element of care and
control in the special sense that a measured action is moved and guided by undefeated reasons as
one sees them upon consideration.45 That is, it is not enough for a would-be punisher to intentionally
inflict harm on D. She must have considered the matter, including reasons for and against punishing
D and, if she decides to punish D, the amount of harm to be inflicted. So provocation is not
punishment because its spontaneity precludes such measurement. And thus, it is not punishments
deliberateness that makes it distinctive. Punishment must be deliberate, but it must be deliberate
because it must be measured. We might say in summary that punishment does not require a judge,
but it does require a judgement.

4. The Grounds for Punishment

The next feature of punishment up for discussion concerns the grounds of punishment
i.e., what it is that punishment is for. The first thing to note, although it might go without saying, is
punishment must be for something. For means on the grounds of or by reason of, and so if
Smith says that Jones is being punished, Smith must be prepared to answer the question For
what?46 So while Smith might not know the reason for Joness punishment, he gives up the right to
use the idiom of punishment if he denies that there is any such reason.47 Second, punishment cannot
be for just anything. One must have the right sort of reason for harming someone if that is going to
count as punishment. For example, it would be absurd to say that Smith is punishing Evans because

45

Joseph Raz makes the broader point that, in general, we control actions by guiding them in light of what we
take to be reasons for those actions. Raz (2010), p. 435.
46
Joel Feinberg, Doing and Deserving: Essays in the Theory of Responsibility (Princeton: Princeton University
Press, 1970), p. 58.
47
Ibid.
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the sun is shining -- both because the suns shining is (normally) a good thing and because Evans (nor
anyone else) had anything to do with it. If Smith is punishing Evans by giving him a beating, the
beating must be for something that someone has done. But it would be absurd to say that Smith is
punishing Evans for doing something that is unqualifiedly good (e.g., doing him a favor while
stringently observing all applicable rules and regulations). So, then, punishment must be for
something someone did, and that something must be on the wrong side of being right and good.
What more can we say about the grounds for punishment? Hart suggested that punishment
is for an offense against legal rules (i.e., a crime) in the paradigmatic legal case, but he also
admitted that it could be for breaches of non-legal rules or orders (punishments in a family or
school) because he recognized that more rudimentary rule-regulated practices within groups such
as a family, or a school, or in customary societies whose customs may lack some of the standard or
salient features of law (eg, legislation, organized sanctions, courts).48 But what Hart does not
recognize, at least not explicitly, is punishment exists outside of institutions and other
rule-regulated practices. Why? I think the answer is that Hart seemed to think of punishment as
essentially a matter of applying secondary rules specifying what officials (or others) may or must do
when an applicable standard-setting primary rule has been broken.49 Secondary rules (e.g., If D
violates the rule forbidding x, imprison him for 5 years) only apply once a primary rule (e.g., X-ing
is forbidden or Do not x) has been violated. And insofar as punishment involves the application of
secondary rules, it must also involve an offense against a primary rule because the very logic of
secondary rules requires that the violation of a primary rule is among the grounds for their
application. Whats more, Hart had a special interest in the institution of criminal punishment, and
punishments within a rule-based practice or institution (like criminal punishment) are
paradigmatically for the violation of some primary rule declaring that certain actions are not to be
done.50 Thus, an offense against primary rules declaring that certain actions are not to be done must
be among the reasons for applying punishment within a rule-based practice in standard cases of
institutional punishment.
But legal and institutional punishments are not paradigmatic cases for the purposes of
focusing our justifying efforts. In defining punishment, we should pay special attention to cases that
have the essential features that distinguish punishment from related phenomenon and draw our

48

Hart (2008), p. 5.
Harts discussion of the preliminary question of why certain actions are forbidden by laws and so are
made crimes or offenses supports this view. See Hart (2008), p. 6-8.
50
Even within a rule-based system, retrospective punishments for actions prohibited after the fact are
perfectly possible. But these are sub-standard cases of institutional or legal punishment.
49

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attention to those features calling for justification. Forms of punishment with additional, optional
features can be distracting especially when those extra features also call for justification. And
legal punishment is a particularly complicated phenomenon that raises pressing questions about the
rights and responsibilities of the state in relation to its citizens, including: What burdens may the
state justifiably impose on its citizens? What justifies the imposition of such burdens? and When is
the impositions of such burdens obligatory? These questions only increase the complexity
surrounding punishments justification and draws our attention away from the distinctive problems
that make the justification of punishment so tricky. And so we are better off thinking about what
punishment must be for without muddying the waters with talk of laws, crimes, and institutions.
Still, Harts formulation of this feature of punishment (that it must be for an offense)
points us in the right direction. As Hart taught us, laws (or other positive rules) that forbid certain
actions create offenses or legal wrongs for which punishment may be applied.51 And punishment
may be applied for such legal wrongdoing. But punishment can equally be applied for actual or
supposed wrongdoing (broadly construed) that is not prohibited by any positive rule.52 The common
thread is punishments retributive logic: punishment involves responding in kind, giving ill (i.e.,
harm) for ill (i.e., wrongdoing). And this retributive element is a feature of punishments logic
always, and not only in standard cases that distinguishes punishment from related
phenomenon involving the intentional infliction of harm, like general deterrence and self-defense.

5. The Person Punished

The final feature of punishment I will discuss here flows from, but is not itself a part of, the
idea of punishment. That is, it is natural to think that punishment for a wrong done will be of the
wrongdoer. And indeed, in paradigmatic cases, punishment is imposed on an (actual or supposed)
wrongdoer for his (actual or supposed) wrongdoing.53 When someone undertakes punishment
(which is, of logical necessity, for some wrongdoing), we look to the person who did that wrong and
expect that punishment will fall on him. And the expectation that punishment will be of a wrongdoer
for his wrongdoing is part of the idea of punishment. So imagine that Smith says, Jones wrongfully
struck Evans, and weve got Evans here. Weve got to punish somebody for this! So who do you think
it should be? We would conclude that Smith is more than a little confused about what

51

Hart (2008), p. 6.
The question of what makes the action wrong in the first place is beside the point. Gardner on Hart xvi.
53
If we replace offender and offense with the broader notions of wrongdoer and wrongdoing, Harts
formulation (i.e., that in the standard case, punishment is of an actual or supposed [wrongdoer] for his [wrongdoing])
hits just the right note. Hart (2008), p. 5.
52

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punishment means. Now, Smith might be mistaken about who (if anyone) has struck Evans, about
whether striking Evans was wrongful, or both.54 But if he believes that a wrong has been done by
Jones and that such wrongdoing is a reason for imposing punishment on someone, he will believe he
has a reason for punishing Jones in particular.
That is not to say that punishment is only punishment if it is imposed on a wrongdoer.55 For
we can, without absurdity, punish someone for something he has not done. For example, we might
punish a person known to be innocent in the place of the wrongdoer (vicarious punishment) or
punish a group of people for some wrong done by just one of its members (collective punishment).
But these are sub-standard cases of punishment that require additional justificatory maneuvers. If a
wrong done is a reason for inflicting harm on someone in particular, that person must have (or have
had) some relationship to that past wrongdoing that explains why harm should be inflicted on him.
And any plausible account of that relationship will begin with the doing of the wrong done.56 So
although the idea of punishment does not specify on whom punishment may imposed, its retributive
logic focuses our attention on the wrongdoer. And we only look away and start thinking about
punishing someone else if we cannot find the wrongdoer, or else find that he is somehow immune to
punishment.

III. CONCLUSION
To recap, I have argued that punishment has at least five features:
1. Punishment involves intentionally harming D.
2. Punishment involves intending to harm D and having a certain sort of control over
the nature and extent of that harm.
3. Punishment is measured and deliberate.
4. Punishment is imposed for (i.e., on grounds of) past wrongdoing.
5. And in paradigmatic cases, punishment is imposed on a wrongdoer for his
wrongdoing.

54

Note that Harts formulation accommodates punishment by mistake (i.e., punishment of a supposed, but
not actual, wrongdoer) as it should. Ibid.
55
Cf. Quinton.
56
The term guilt designates the sort of relationship that a wrongdoer has (or had) to a wrong he has already
committed. John Gardner, Introduction, in H.L.A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law
(Oxford and New York: Oxford University Press, 2008): pp. i-liii, p. xxvii. But any further discussion of guilt is outside the
scope of this paper.
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And although punishment shares many of these features with other related phenomenon (including
tort liability, provocation, general deterrence, self-defense, and blame and apology), the
combination of the first four logically necessary features makes punishment a distinctive
phenomenon. For example, punishment and provocation share features (1), (2) and (4), but
provocation lacks feature (3) because it is done spontaneously (and without measurement). And this
third feature of punishment is important because it raises questions about the extent (as well as the
existence) of harm inflicted as punishments and the reasons for its infliction.57
But what makes the problem of punishment so tricky is the combination of features (2) and
(4). That is, punishment is not just a matter of taking some action on grounds of past wrongdoing.
For unlike related phenomenon like blame and apology that involve an intentional action taken on
grounds of past wrongdoing, punishment involves the intentional infliction of harm. Blaming
someone involves doing something (e.g. adopting a certain attitude) in response to something
negative about a person or his behavior (e.g., past wrongdoing), and that response might be hurtful.
But blame does not even have to be expressed, so it only shares feature (4) with punishment. The
imposition of punishment is also distinguished from the imposition of liability because although the
latter action typically involves intentionally causing some D to suffer a measured amount of harm
(often on grounds of past wrongdoing), the harm done to D is often an expected but unintended
side-effect. So the imposition of liability has features (1), (3), and often (4), but lacks feature (2). On
the other hand, punishment loses its point if it is not meant to hurt. The intention to harm is
essential to the very idea of punishment. So in order to adequately defend punishment, one must
justify not only the intentional harming involved in punishment, but also the intention to harm.
Moreover, punishment is not just a matter of intentionally inflicting of harm, but of
deliberately inflicting a certain measure of intended harm on grounds of past wrongdoing. And this
feature distinguishes punishment from related phenomenon like general deterrence and
self-defense. For example, self-defense involves intentionally inflicting harm on some D, but the
harm is inflicted to protect from future wrongdoing and not on the grounds that a wrong has already
been done. Likewise, we might deter future wrongdoing by intentionally inflicting some measure of
harm on some D. But that infliction of harm does not count as punishment if the only reason for
harming D is the expected deterrent effect even if D is a guilty wrongdoer. Even if deterrence
shares features (1), (2), (3), and even (5) with punishment, it is not punishment without also sharing

57

Thus, as Adam Kobler points out, [w]e must justify not only whether or not a person is punishment but also
the amount of punishment we impose. Adam J. Kobler, The Comparative Nature of Punishment, Boston University
Law Review 89 (2009): pp. 1565-1608, p. 1568.
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feature (4). Now that is not to say that deterrence cannot be among the justifying aims of
punishment -- only that it cannot be its only aim. Punishment is distinctive because past wrongdoing
must, at a minimum, be among the positive reasons for its imposition. Thus, to justify punishment
rather than deterrence or self-defense, one must justify the infliction of harm for wrongdoing, and
that requires accounting for an element of retribution in punishments distribution.
One may object that the question How do you justify punishment? is a red herring, and
that the real question is Why do we incarcerate convicted criminals? But this may just be evidence
of a philosophical difference: the actions we perform can be criticized or justified in many ways, and
some people are interested in acts as we perform them (including the reasons for (and against)
performing such acts), while other people are interested in the way we think about the acts we
perform and the reasons we think we have for (and against) performing them. Hart may be among
those who are interested in whether the actions we perform under the practice we happen to call
punishment are morally permissible. But here, I am interested in what lies behind our actions, and
for the category of actions that actors (or spectators) take to be instances of punishment, whether
we have the reasons we take ourselves to have for engaging in that phenomenon. And I am
especially interested in the question of why accounting for that phenomenon the phenomenon of
punishment is so fraught. Here is my answer: the problem of punishment is fraught, not because it
raises separate questions that call for separate treatment, but because the combination of its
logically necessary features brings together two vexing philosophical problems: (A) justifying
intended harming and (B) explaining why and when past wrongdoing counts as a reason for future
action. And although I will only diagnose the problem with Harts approach to punishment here, it
seems to me that much of the confusion surrounding punishment can be attributed to our tendency
to overemphasize one of these problems at the expense of the other.
Hart seemed to appreciate the significance of the features of punishments that give rise to
problem (A), but he failed to appreciate that punishment has a distinctive retributive logic that
[necessarily] gives rise to problem (B). And so he mistook the problem of punishment for a more
general problem and asked us to explain the rational and moral status of our preference for a
system of punishment under which measures painful to individuals are to be taken against them only
when they have committed an offense.58 But that is not punishment it is merely a kind of general
deterrence resembling punishment because it involves harm that, by virtue of an independent
principle of distribution, is inflicted only on wrongdoers.59 And this practice can be justified without
58
59

Hart (2008), p. 6 (emphasis added).

Hart erroneously characterizes this principle of distribution as retributive. Ibid., p. 9. But it is not even
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reference to retribution precisely because it lacks one of the logically necessary features of
punishment. The challenge for the would-be defender of punishment is to explain the rational and
moral status of our preference for a system of punishment under which measures intended to be
painful to individuals are to be taken against them on grounds of past wrongdoing.60 And Harts
different questions approach evades this challenge, prematurely removing the fraughtness from
punishments justification so that he ultimately ends up advocating the replacement of punishment
with another practice.61
In closing, I want to note that although a logically adequate defense of punishment must
account for its retributive logic, it does not follow that a would-be defender of punishment must
accept the retributivist proposition that there is some intrinsic value in the suffering of guilty
wrongdoers.62 That is, of course, one way of accounting for the element of retribution in
punishments distribution. And although the vulgar retributivist view that punishment was justified
by the intrinsic value in deserved suffering was anathema to Hart, some recent strands of
retributivist thinking might have appealed to him. For example, the view that the infliction of harm
on the guilty has some intrinsic value because it expresses deserved blame or condemnation is
compatible with the possibility that punishment is only justified if it also produces sufficiently good
consequences.63 But this requires abandoning the Benthamite conviction that suffering is always and
solely intrinsically bad, and a defender of punishment sympathetic to Hart need not give up that
conviction. For instance, he might follow the line of thinking put forward by John Rawls in his essay
Two Concepts of Rules and argue that a distributive rule that is genuinely retributive in its
application can be wholly justified by its good consequences. Or he might argue that, in certain
circumstances, wrongdoing is a reason to make a guilty wrongdoer suffer because the suffering of
the guilty is less intrinsically bad than the suffering of the innocent, though in no way intrinsically
good. In my view, the third line of argument is most promising, but I will leave the task of mounting a
morally and logically adequate defense of punishment for another day or for another author.

slightly retributive because the principle merely limits the distribution of punishment to persons guilty of wrongdoing,
and wrongdoing does not count as a positive reason for punishment. Ibid.; see also Gardner, p. xxv.
60
Hart (2008), p. 6.
61
As John Gardner points out, the practice Hart ends up advocating resembles the practice of punishment in
maintaining the distinction between the guilty and the innocent in the distribution of suffering, but [it] is quite unlike
the practice of punishment in not treating the (actual or supposed) wrongdoing of the wrongdoer, even in cases of
guilt, as a positive reason why the suffering should be inflicted. Gardner, p. xxvi.
62
See, e.g., Lawrence H. Davis, They Deserve to Suffer, Analysis 32(4) (1972): pp. 136-40.
63
Gardner, p. xxix.
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