The Urgings of Conscience

The Urgings of Conscience: A Theory of Punishment

Copyright Date: 1991
Published by: Temple University Press
Pages: 316
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  • Book Info
    The Urgings of Conscience
    Book Description:

    While most philosophers who write about punishment ask, "Why may we punish the guilty?" Jacob Adler asks, "To what extent does a guilty person have a duty to submit to punishment?" He maintains that if we are to justify any system of punishment by the state, we must explain why persons guilty of an offense are morally bound to submit to punitive treatment, or to undertake it on their own. Using Rawls's theory of social contract as a framework, the author presents what he calls the rectification theory of punishment.

    After examining punishment from two points of view-that of the punisher and that of the offender who is to be punished-Adler proposes the Paradigm of the Conscientious Punishee: a repentant wrongdoer who views punishment as not necessarily unpleasant, but as something it is morally incumbent upon one to undertake. The author argues that this paradigm must play a central role in the theory of punishment. Citing community service projects and penances for sin (as required by some religions), Adler argues that punishment need not involve pain or any other disvalue. Instead he defines it in terms of its justificatiory connection with wrongdoing: punishment is that which is justified by the prior commission of an offense and generally not justified without the prior commission of an offense.

    The rectification theory applies particularly to offenses involving basic liberties. It is based on the assumption that each person is guaranteed the right to an inviolable sphere of liberty. Someone who commits an offense has expanded his or her sphere by arrogating excess liberties. In order to maintain the equality on which this theory rests, an equivalent body of liberties must be given up. In discussing applications of the theory, Adler demonstrates that active service (as punishment) is more effective in safeguarding important rights and interests and maintaining the social contract than is afflictive punishment.

    eISBN: 978-1-4399-0607-1
    Subjects: Philosophy

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
    (pp. vii-xii)
    (pp. 1-8)

    MOST PHILOSOPHERS who write about punishment ask, “Why may we punish the guilty?” I want to ask, “Why should the guilty put up with it?” or, more specifically, “To what extent does a guilty person have a duty to submit to punishment?”

    This question forms the topic of the present work.

    I devote most of this introduction to an overview of what is to follow, turning from this task toward the end to explain two features of my approach to the topics at hand and some special terms.

    The book is divided into two parts, of four chapters each. The...

  5. PART ONE: A Metatheory of Punishment

    • CHAPTER 1 Why Submit to Punishment?
      (pp. 11-44)

      MANY have asked, “What gives us the right to punish the guilty?” But I want to ask, “Why should the guilty put up with it?” Or, to frame the question more precisely, “Why should a person guilty of an offense submit to an appropriate punishment?” Let us call this thequestion of submission. The purpose of this chapter is not to answer the question of submission, but to argue for its importance and discuss its significance.

      Before anything else, we must be clear about the meaning of the key phrase of this chapter. Bysubmitting to punishmentI refer to...

    • CHAPTER 2 Two Paradigms of Punishment
      (pp. 45-79)

      CHAPTER 1 has established that in a legitimate state a person being punished has a moral duty to submit to the proposed punishment. The punishee, of course, may or may not take this duty seriously. Corresponding to these two possibilities, there are two paradigms of punishment. In one paradigm the punisher is active and the punishee passive, or even resistant; in the other the punishee, recognizing her duty to submit, is the active party. I will refer to these, respectively, as theParadigm of Legal Punishmentand theParadigm of the Conscientious Punishee, or, for short, the legal paradigm and...

    • CHAPTER 3 It Doesn’t Have to Hurt: Punishment, Suffering, and Other Evils
      (pp. 80-108)

      PHILOSOPHERS who write about punishment often disagree, but there is one thing on which they are nearly unanimous: Punishment has to hurt. If something is to count as a punishment, it must involve pain, suffering, deprivation, or other unwanted or unpleasant consequences to the punishee; or (to subsume these under one head) these philosophers say thatdisvalue¹ to the punishee is an essential characteristic of punishment. This view is so widespread that I will refer to it as theStandard View.

      This view is wrong; or, at any rate, so I argue in this chapter. I claim, in fact, that...

    • CHAPTER 4 What Is Punishment?
      (pp. 109-118)

      IF PUNISHMENT has no intimate connection with pain or suffering, then what do I mean bypunishment? If I not only break the connection to pain or suffering but bring in the full conscientious paradigm, it may seem that the concept of punishment, like a thick black cloud, has not been illuminated by the sunlight of inquiry but has been dissipated altogether. This is almost so, as I will explain momentarily. But now, pending that explanation, all sorts of strange thoughts may arise.

      Suppose Rickard has committed a terrible crime. He is wracked with guilt. He therefore uses the money...

  6. PART TWO: A Theory of Punishment

    • CHAPTER 5 The Rectification Theory of Punishment
      (pp. 121-156)

      WE NOW turn to the actual task of justification. In this chapter and the next I offer a theory of punishment as rectification. The essentials of this theory can be stated quite briefly: Suppose there is in some country a system of equal basic rights, guaranteeing to all citizens a body of equal liberties. By doing certain forbidden things, a person can exceed the bounds of his or her liberties. The offender thus arrogates to himself or herself excess liberties; the scheme of equal rights is upset. In order to restore it, the person’s basic rights must be restricted in...

    • CHAPTER 6 The Rectification Theory: Application and Evaluation
      (pp. 157-188)

      NOW THAT the basic features of the rectification theory have been set forth, I turn to some of its applications. After these, I briefly evaluate the theory by the standards set in Chapters 1 and 2. I begin with a general discussion of the kinds of offenses that fall in the domain of the theory (section 1). Having done that, I consider attempts and victimless offenses (section 2), the punishment of recidivists (section 3), community service as a penalty (section 4), the penalty of imprisonment (section 5), and penance for sins (section 6). Section 7, finally, contains the evaluation.


    • CHAPTER 7 Punishment and Contract
      (pp. 189-247)

      A CONTRACT theory of punishment, as we have seen (Chapter 2, section 5), is among the theories that can account for punishment under the conscientious paradigm. It would be a happy result, then, if we could incorporate the theory of punishment into a more general social contract theory. This is the task of the present chapter. Specifically, I find a place for punishment in Rawls’s theory of Justice as Fairness. I proceed by taking the contract very seriouslyas a contract. Rawls’s two principles of justice, as the text of a contract, are thus subject to the complications, reinterpretations, limitations,...

    • CHAPTER 8 Punishment, Contract, and Fraternity
      (pp. 248-270)

      IN THIS final chapter I touch briefly on some interconnections between punishment, the social contract, and the political ideal of fraternity. I am concerned here with the rectification theory of punishment viewed in the context of social contract theory; I will call this thecontract-rectificationtheory.

      What I suggest is this: Liberalism sees society as a collection of individuals, not a community. Each person is free to choose and act on her own plan of life, which may leave her completely indifferent to the others. So long as she does them no harm or injustice, she is in the right....

  7. APPENDIX Rights-Claims and Acting as if One Had a Right
    (pp. 271-272)
  8. NOTES
    (pp. 273-302)
  9. INDEX
    (pp. 303-316)