¹ Manser, A. R. (‘It Serves You Right’, Philosophy 1962)Google Scholar has provided us with several examples from the work of writers who are retributivists in my sense. To this list one could probably add the Moore of Principia Ethica and the Broad of Five Types. Mabbot veers perilously close to retributivism in my sense when he defends what he calls the retributive theory by saying that the world is not necessarily a worse place if someone is deprived of freedom (‘Mr. Flew on Punishment’, Philosophy 1955, p. 258Google Scholar). Even in the context of his rule-utilitarianism, the doctrine that punishment which does not benefit anyone may yet make ‘the world’ no worse (and perhaps better) can lead to retributivism. But the rest of his work indicates that Mabbot does not think that desert alone ever justifies harming a man. Rather, he belongs with those who think a theory of excuses along the lines of utilitarianism inadequate (see section IX of this paper). So does Mundle, another self-styled retributivist.

² What I say should be acceptable to a good many philosophers, and throughout the paper I employ a terminology which I intend to be neutral among a certain range of moral systems. However, I write with a particular moral system in mind: that expounded by Bernard Gert in his forthcoming book, The Moral Rules: Their Nature and Justification. The view of punishment on which I rely is not derivable from Gert's system but is compatible with it.

³ In saying that certain breaches of morality warrant inflicting significant harm on individuals, I am not covertly employing the notion of desert. In precisely the same sense, depriving a man of freedom by putting him in quarantine is warranted in order to prevent an epidemic. Here there is no question of the man's deserving the harm of deprivation of freedom. In both cases, the aim is to minimise harm, and to say that preventing one harm warrants inflicting another is to judge that the first is greater.

⁴ Where making an act criminal results in general insecurity, I regard that as part of the harm resulting from punishment and part of the harm men do each other. This may be stretching language a bit for the sake of briefer formulations. General insecurity is important for the excuses, for these concern conditions which are impossible or very difficult to avoid.

⁵ Hereafter, for brevity, I ignore in my formulations partial excuses, whether moral or legal.

⁶ Brandt, Richard, ‘A Utilitarian Theory of Excuses’, Philosophical Review, 07 1969, p. 351.Google Scholar

⁷ Hart raises an objection to a utilitarian view of legal excuses, which applies to my view also. He argues that when strict-liability laws are enacted for utilitarian reasons, we have a snese that an important principle is being sacrificed; thus a wholly utilitarian rationale for the excuses is inadequate (‘Prolegomenon to the Principles of Punishment’, Philosophy, Politics, and Society, ed. Laslett, P. and Runciman, W. G., Basil Blackwell, 1962; p. 175).Google Scholar I agree that something important is being sacrificed. The ideal aim of the criminal law, to give the accused the legal punishment (or acquittal) he deserves, is being sacrificed. The situation is one in which it has little chance of being achieved. It is being sacrificed in this case to minimize harm done. When it is pursued, it is pursued for the same reason. The justification in both cases is, roughly-speaking, utilitarian.

⁸ It is perhaps misleading to say that that part of the justification of the actions of the judge and the jury is that the man got the punishment he deserved. For one might suppose that ill desert always goes some way toward justifying inflicting harm. This I deny (see section VIII).

⁹ Or at least so I think. I accept Bentham's view that the scale of penalties must be such as to give a criminal some incentive to commit the lesser crime; and Durkheim's view that the system of penalties is one of the determinants of the relative weights which persons assign to the values of their society. (The difference is that Bentham regards the criminal as a rational egoist calculating his utility expectation; Durkheim regards him as a man the structure of whose conscience may be influenced by the system of penalties; moreover, Durkheim thinks the population at large is influenced in its non-criminal behavior by the system of penalties. For an application of the Durkheimian view to a practical question, see section VIII).

¹⁰ Some resolve the hesitation in favour of setting criminal penalties. Consider Article 107 of the Criminal Code of the Russian Socialist Federated Soviet Republic: Incitement to suicide. Inciting a person economically or otherwise dependent on the guilty person to commit suicide or to attempt suicide, by cruel treatment of the victim or systematic lowering of his personal dignity, shall be punished by deprivation of freedom for a term not exceeding five years.

The Russian Criminal Code is re-printed in Soviet Criminal Law and Procedure: The R.S.F.S.R. Codes: introduction and analysis, Berman, Harold J.; trans. Berman, Harold J. and Spindler, James W. (Cambridge, Massachusetts: Harvard University Press, 1966).Google Scholar The present reference is to p. 193.

¹¹ I have already dealt with Hart's view that the excuses have a non-utilitarian justification which can be over-ridden by utilitarian considerations (see note 7). As for the view that there are excuses which should be given legal recognition even if they involve a loss of utility, the reader can judge some cases for himself. Mabbot says that we punish ringleaders more severely than their underlings; people under strong temptation less severely than those who are not; people who knew their brakes were faulty more severely than those who didn't but should have known; moreover, these policies do not derive from utilitarian considerations (op. cit., 260–261). Mundle says that we punish calculated action more severely than impulsive action and that this is not utilitarian (Philosophical Quarterly, 1954, p. 228).Google Scholar