Abstract
Boonin (The problem of punishment, Cambridge University Press, New York, 2008) examines more than a dozen theories of punishment and offers perhaps the most systematic argument that the legal practice of punishment is probably unjustified. This provocative claim comes at a time when US prisons face unsustainable population growth and high recidivism rates. In place of punishment, Boonin offers an account of ‘compulsory victim restitution’. Responses to Boonin (The problem of punishment, Cambridge University Press, New York, 2008) have focused on the merits of his theory of restitution or have defended a single particular theory of punishment from his objections. The present paper offers a more comprehensive response, which finds a critical fault in the crux of Boonin’s argument: the ‘entailment test’. If the practice of punishment is unjustified, it is not for the reasons Boonin gives.
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Notes
Boonin actually identifies two tests that a theory of punishment must pass: the entailment test, which I discuss, and the foundational test, which I do not. Boonin himself acknowledges that the foundational test is significantly weaker and less convincing than the entailment test, and therefore rests the success of his argument on the latter rather than the former (see pp. 34–36).
Roughly: A defeasible justification of X carries sufficient weight to justify X, but can be either overridden or undercut by countervailing considerations. A conclusive justification of X is not subject to revision, because a conclusive justification is either all-things-considered or absolute.
This example is borrowed from Boonin, and can be found throughout his book (e.g. pp. 94 and 129).
To speak more precisely: Boonin actually briefly considers conjunctive hybrids where neither conjunct is independently sufficient to justify punishment, but one of his objections to that sort of hybrid—an objection I did not rehearse above—is that it is not clear to him how two independently insufficient considerations could be joined to form a jointly sufficient consideration for justifying principle (p. 210).
Different authors use different language when discussing these concepts. I intend my subsequent explication of these terms to settle the substantive matter at hand, regardless of terminological differences that exist in the literature.
Consider a theory of punishment which grants the state a merely pro tanto permission to punish any human being whatsoever, but which allows that permission to be defeated in every case where the human in question has not somewhat recently caused interpersonal harm or property damage. This very weak defeasible principle might be grounded in the Christian notion of original sin or some view regarding the default power of the state. Permitting such theories is important for keeping as much of the logical space open with respect to the problem of punishment, and disallowing them imports a substantive, rather than content-neutral, element to the entailment test that Boonin most likely does not intend.
I use ‘partner’ as a neutral term to refer to non-marital partnerships.
It does not matter how we cash out the public/private distinction. We might appeal to social contracting, some objective threshold of significance, or some complex set of principled or contingent facts regarding a reasonable right to privacy and freedom from intrusion possessed by individuals against each other and their government. Additionally, the same point can be restated in terms of lack of lawbreaking, instead of in terms of privacy, where the moral significance of lawbreaking will also be cashed out in terms of whatever one’s preferred theory of justice says regarding which sorts of actions may be legislated against and which may not.
By contrast, beating one’s partner has historically been wrongly considered to be a private and not a public matter.
Imagine a tornado unexpectedly pops up in some place that has never had tornados, lifts a woman up, and drops her on her neighbor. The woman survives the fall, but the neighbor dies. We do not consider the woman who was lifted up by the tornado to have broken the law against killing other people.
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Howe, A. Regaining Traction on the Problem of Punishment: A Critique of David Boonin’s Use of the Entailment Test. Res Publica 25, 261–272 (2019). https://doi.org/10.1007/s11158-017-9384-z
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DOI: https://doi.org/10.1007/s11158-017-9384-z