UNIVERSITY OF GHANA COLLEGE OF HUMANITIES A …

UNIVERSITY OF GHANA

COLLEGE OF HUMANITIES

A ROUSSEAUEAN JUSTIFICATION OF PUNISHMENT

BY:

HILLARY AGBENOSI

(10213696)

THIS THESIS IS SUBMITTED TO THE UNIVERSITY OF GHANA,

LEGON IN PARTIAL FULFILLMENT OF THE REQUIREMENT

FOR THE AWARD OF MPHIL PHILOSOPHY DEGREE

AUGUST, 2019

University of Ghana http://ugspace.ug.edu.ghUniversity of Ghana http://ugspace.ug.edu.gh

i

DECLARATION OF ORIGINALITY

I hereby declare that this research is my original work produced under supervision, and

has not been produced in part or in full elsewhere.

……………………………. …………………………….

HILLARY AGBENOSI DATE


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CERTIFICATION

Hillary Agbenosi, a student of the Department of Philosophy and Classics, School of

Arts, College of Humanities, University of Ghana, Legon, has satisfactorily completed

the programme of study for the degree of Master of Philosophy in Philosophy.

………………………………………. ……7th

August, 2019…………

PROF. HENRIETTA MENSA-BONSU DATE

(Principal Supervisor)

DR. RICHMOND KWESI ……7th

August, 2019……………

(Co-Supervisor) DATE


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DEDICATION

I would like to dedicate this thesis to Almighty God, for giving me the strength to

persevere through my Master‟s Degree programme.

To Archbishop Charles Gabriel Palmer-Buckle for the opportunity to further my studies.

Finally, to my supervisors, my family, friends, and loved ones who have been of

immense help throughout my studies

This is dedicated to you all.


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ACKNOWLEDGEMENTS

In undertaking this study, I received a lot of assistance from various individuals to whom

I express my sincerest gratitude and would like to take this opportunity to thank everyone

that played a role in completing this dissertation.

I want to acknowledge the numerous help from my Supervisors, Prof. Henrietta Mensa-

Bonsu and Dr. Richmond for their intellectual assistance, support, valuable inputs in my

work and for being patient and understanding.

I am indebted to God for His Grace which kept me going always, Most Rev. Gabriel

Charles Palmer-Buckle for giving me this opportunity to further my education. I cannot

forget to appreciate the contribution of Rev Frs. Francis Arthur, Joseph Okine-Quartey,

Ebenezer Akesseh, Emmanuel Nartey, John Doe, Paul Agbodza, Francis Lemaire, Fr.

Wisdom Larweh, Emmanuel Obeng Cudjoe, Emmanuel Salifu, Aaron Agbeshie-Agorsor,

Edmund Donkor-Baine and Derrick Dowuona-Hammond for their encouragement and

support in various ways in my quest to climb the educational ladder.

I wish to also express my profound gratitude to Mr. and Mrs. Narh who introduced to me

a book that inspired this thesis and Angela Dadson, Anna Lisa Osei-Baidoo and Vincent

Sackitey for helping with proofreading at various times.

Finally, I say thank you and God bless you to all who in direct or indirect ways helped

me make this thesis a reality.


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TABLE OF CONTENTS

DECLARATION OF ORIGINALITY ................................................................................. i

CERTIFICATION ............................................................................................................... ii

DEDICATION ................................................................................................................... iii

ACKNOWLEDGEMENTS ................................................................................................ iv

TABLE OF CONTENTS ..................................................................................................... v

LISTS OF ABBREVIATIONS.......................................................................................... vii

ABSTRACT ..................................................................................................................... viii

Introduction .......................................................................................................................... 1

Chapter One ......................................................................................................................... 7

Literature review of some attempted solutions to the problem of the justification of

punishment ........................................................................................................................... 7

1.1 The Consequentialist Solutions ........................................................................... 7

1.2 Retributivist Solutions ....................................................................................... 12

1.2.1 Desert-Based Retributivism ........................................................................ 13

1.2.2 Forfeiture-Based Retributivism .................................................................. 16

1.2.3 Fairness-Based Retributivism .................................................................... 18

1.2.4 Debt-Based Retributivism ........................................................................... 18

1.2.5 Revenge-Based Retributivism ..................................................................... 19

1.3 Hybrid Solutions to the Justification of Punishment ......................................... 20

1.4. Other Non-Traditional Solutions ....................................................................... 25

1.4.1 The Consent Solution.................................................................................. 25

1.4.2 The Reprobative Solution .............................................................................. 27

1.4.3 Punishment as Education ................................................................................... 27

CHAPTER 2 ...................................................................................................................... 31


vi

FREEDOM AS BASIS FOR THE JUSTIFICATION OF PUNISHMENT ..................... 31

2.1 Freedom: Essential to Human Nature ................................................................ 31

2.1.1 What is Freedom? ....................................................................................... 32

2.1.2 Freedom and the Notion of the Individual ................................................ 34

2.1.3 Freedom and the General Will ................................................................... 36

2.1.4 Rousseau’s Freedom and the Concept of Dependence ............................. 37

2.2 How the Law Establishes Freedom .................................................................... 41

2.3 Freedom and Reason .......................................................................................... 43

CHAPTER 3 ...................................................................................................................... 46

PUNISHMENT AS “BEING FORCED TO BE FREE” ................................................... 46

3.1 The Possibility of not Willing the General Will ................................................ 47

3. 2 The Law ............................................................................................................. 50

3.3 Punishment ......................................................................................................... 53

CHAPTER 4 ...................................................................................................................... 58

A COMPARATIVE ANALYSIS OF ROUSSEAU‟S THEORY AND OTHER MAJOR

THEORIES OF JUSTIFICATION FOR PUNISHMENT ................................................ 58

4.1 Rousseau‟s and the Retributivist Theories ......................................................... 58

4.2 Rousseau‟s and the Utilitarian Theories ............................................................ 61

4.3 Rousseau‟s and the Hybrid Theories ................................................................. 63

CHAPTER 5 ...................................................................................................................... 67

CONCLUSION .................................................................................................................. 67

References .......................................................................................................................... 73


vii

LISTS OF ABBREVIATIONS

SC – Social Contract

DI – Discourse on Inequality


viii

ABSTRACT

This thesis is an attempt to arrive at a more suitable justification for the institution of

punishment. The problem arises because punishment discriminates between those who are

considered offenders (one who has broken the law) and those considered non-offenders.

Punishment also goes beyond distinguishing between the offender and the non-offender to inflict

some pain or deprive some right to the one considered as an offender. Both the discrimination

and the pain inflicted or right deprived to the offender require a justification to be acceptable.

This is what has engaged many theorists in penology. There are various positions on the matter.

One of the traditional positions like the desert-based retributivists, a variant of the Retributivists

justification for punishment says the offender deserves to be punished because he or she has

committed a crime and deserves a punishment that inflicts a pain which is equal to the crime that

has been committed. The other traditional position is the utilitarian position which suggests that

it is justifiable to punish the offender because such a punishment will preserve the society by

maintaining social control. This thesis proposes a rational contractarian approach based on the

ideas of the contractarian Jean Jacques Rousseau. This thesis suggests that a more plausible

justification for punishment could be based on freedom as an essential characteristic of the

human being. When a person is deprived of his or her freedom the person loses their humanity.

The thesis further suggests that when a person lives according to rational nature, they will live

according to the general will, which is always good and makes him free. However, a person who

lives according to the will of another or according to one‟s passions, will live in subjugation to

another person‟s will or passions against the general will and by so doing is not free. The actual

will of a person rises against the general will (the person‟s real will), and this results in a split

will. Such a split will is one which makes a person commit a crime and become an offender and


ix

unfree. This thesis proposes that punishment remedies this situation when the laws which are

based on the general will are applied. The rational will of the person discerns the general will

and from that makes the laws. When a person is punished based on the law, then, one punishes

oneself and is thus subject neither to another nor to one‟s passions and so is free; there is no

distinction between the sovereign who makes the law and the offender who has broken the law.

Punishment is thus applied to make a person free since by going against the general will one has

made oneself unfree. This thesis seeks to pick some positive attributes of the traditional

positions, while avoiding some of their major criticisms and adding its own unique features like

concentrating on human freedom as an essential basis to give a more suitable justification for

punishment.


1

INTRODUCTION

My motivation for this thesis arises from how some people have a negative conception of

punishment and fear, disapprove of, or even sometimes, hate those who inflict them. Some also

use their influence to elude the grasp of the law and thus escape the punishment they deserve for

such crimes. I see in the ideas of Rousseau a shift towards a positive conception of punishment

not only for the society but the individual who is at the receiving end of the punishment.

Punishment, first, discriminates between some people considered as offenders and others

considered as non-offenders, which without moral justification is unacceptable. If all persons by

nature are equal, then they must be treated equally, if they are to be treated differently, a very

good reason must account for that. Again, punishment inflicts some forms of pain on some

people which cannot be tolerated without moral justification. It is morally unacceptable to act in

such a way that will harm another person. The ethical principle non-maleficence for instance

enjoins us to do no harm to another, at least not intentionally (primum non nocere). If

punishment is therefore an intentional harm that is meted out to another person, then punishment

would be ethically unacceptable. Providing moral justification for this problem of discrimination

and infliction of harm is the preoccupation of many theorists in penology.1

The desire to satisfy a demand for justification of punishment has given rise to two major schools

of justification for punishments among others; the utilitarian and retributive theories of

justification for punishment.2 According to the Retributivists, every offence must be punished in

proportion to the offence committed. It seems when asked why an offender should be punished,

such theorists will only say that justice demands it, which by itself will not suffice because one

1Cf., Boonin David,The Problem of Punishment, Cambridge University Press, New York, 2008, p 28-29.

2 Cf., Michael Lessnoff, “Two Justifications of Punishment” in The Philosophical Quarterly (1950-), Vol 21, No.

83, Oxford University Press, 1971, accessed from www.jstor.org on 12-01-2018, p 141.


http://www.jstor.org/

2

would ask why justice demands it. This will most likely require some further justifications. On

the other hand, Utilitarians justify punishment from the angle of its consequences on the society.

In their view, punishment deters the criminal and discourages others from committing same or

similar offences; thus, punishment acts as a deterrent; it may be specific deterrence or general

deterrence.3 Punishment is seen as justified because it brings about the greatest happiness for the

greatest number. This will certainly be disastrous if pushed to the extreme.

Henrietta Mensa-Bonsu defines punishment as “a phenomenon that entails the infliction of

suffering or some other unpleasant consequence by an agency in a position of authority on an

offender for an offence, i.e. the doing of a prohibited act”.4 David Boonin also defines

punishment as an “authorized reprobate retributive intentional harm”.5 From these definitions,

few characteristics of punishment may be discerned. Punishment is first a harm that is

deliberately inflicted. Secondly, punishment is meted out only to one who has broken the law or

done some wrong. Thirdly, punishment is to be exacted by an authority within a certain legal

framework, and is meted out by an authority that legally possesses that responsibility.

Both authors also talk about some form of harm or suffering which is done deliberately. While

Boonin refers to “intentional harm” as an essential element in the idea of punishment, Mensa-

Bonsu talks about the “infliction of suffering or some other unpleasant consequence”. This is

important to make clear the point that it is not something to be enjoyed, but rather intended to be

unpleasant. It is also supposed to be deliberate so that we do not end up absorbing all kinds of

3Specific deterrence occurs when the offender after the punishment resolves not to and does not commit the offence

again while General deterrence occurs when others who are potential offenders upon seeing the punishment meted

out on the offender resolve not to and do not commit the offence.

4 Henrietta J. A. N. Mensa- Bonsu, Criminal Law Series; the General Part of Criminal Law- A Ghanaian Casebook,

Vol 1, Black Mask Ltd, Accra, 2001, P 89.S 5 Boonin David, Op. Cit., p 23.


3

harm into the punishment domain. When this characteristic of punishment is upheld the pain that

the dentist causes for instance will not be considered a punishment because, while it is

unpleasant it is not carried out with the intention of causing pain to the patient. The kind of

uncomfortable, unpleasant, harmful treatment must be intended and carried out purposely to

cause some harm or pain. A pleasant consequence cannot pass for punishment because, once it is

enjoyed it may most likely not bring about the desired effect of specific or general deterrence, or

even the expressive function of unequivocally making a clear statement to the offender that his

or her actions are unacceptable.

Both authors talk about punishment as inflicted on one who has offended or broken a law or

done what is judged to be wrong, especially by a legal adjudicating body. This is what Boonin

calls the retributive requirement; it must be meted out to one who has in the past done some acts

that are prohibited. Boonin, however, mentions “reprobative”, which means that the punishment

must serve as an unequivocal statement disapproving the act. Mensa-Bonsu says that such

treatment is meted out to “an offender for…the doing of a prohibited act”. This affirms the fact

that punishment discriminates between those who do wrong and those who do not, and the harm

that is meted out is supposedly to express disapproval of the action. Joel Feinberg refers to this

expression of the disapproval of an action through punishment as the “expressive function of

punishment”.6

Both definitions of Mensa-Bonsu and Boonin also suggest the presence of an authority. This is to

avert any form of anarchy that may result in people taking the law into their own hands and

exacting their own measure of vengeance or violence on others.

6 Feinberg Joel, “The Expressive Function of Punishment” in Philosophy of Law (9

th Edition), Wadsworth, Boston,

2014, 789-799.


4

It is important to talk about the idea of freedom because it is essential to understanding

Rousseau‟s contractualism and crucial to the thesis proposed for the Rousseauean theory of

punishment. Isaiah Berlin defines freedom in two ways; negative and positive freedom. In

defining negative freedom, Berlin says “By being free in this sense I mean not being interfered

with by others.”7 He also talks about positive freedom which is also called autonomy: desire of

the individual to be his own master. He wishes to be moved by his reason, by his own conscious

purpose not by some causes which affect him.For Rousseau, freedom is being free from the

constraints of another person‟s will and or your own passions, and obeying laws that one has

made for oneself. It is this conception of freedom from Rousseau which will undergird the

justification for punishment that will be espoused by this thesis.

Essential to human nature is the freedom of man. Once this freedom is taken away, he is treated

like a brute or any other thing except human. The problem is that, punishment inflicts some harsh

treatments on an individual or prevents him or her from enjoying some rights, that way, it

curtails his freedom and thus seems to be opposed to the liberty of the individual. This will mean

that punishment makes or treats a person like an animal. Such a treatment of persons cannot be

allowed without a good justification for it. Would it then be justified to punish people if it will

rob them of their freedom and thus their nature as humans? Especially considering that many

human rights organizations stress that the rights of the prisoner or the criminal should be

respected, a basic right like one‟s freedom should be maintained. Fortunately, while there have

been many good attempts at justifying punishment, most attempts at justifying punishment do

not focus on the freedom of the individual offender as grounds for such justification. While the

Restorative and the Rehabilitative theories at least focus on the individual who has committed

7 Berlin Isaiah, “Two Concepts of Liberty” in Liberty: Incorporating Four Essays on liberty, edited by Henry

Hardy, Oxford university press, Oxford, [1958] 2002, p 170.


5

the crime, they do not do so by considering one‟s freedom or liberty which is essential to him or

her as human.

I wish in this thesis to propose a justification of punishment which is focused on the nature of

human as free. I will also suggest that punishment in fact promotes such freedom, and thus rather

than dehumanizing a person, it rather makes a person truly human, and truly free.

This thesis will seek to answer the questions:

1. Is freedom essential to being human?

2. Does punishment deprive a person of his or her humanity?

The study aims at attempting to eradicate the altogether negative assessment of punishment by

presenting the positive side of it; both the penal system and the schools will focus more on the

offender and the individual‟s freedom and bringing one back to conformity with the general will,

rather than inflicting mere suffering on the individual. This positive side flows from the very

nature of man or woman as free and how punishment helps to foster such freedom by forcing a

man or woman who does not wish to be free (human) tobe free (human). As one obeys the laws,

he or she has set for himself or herself, an individual obeys no one else but himself or herself and

is thus free and truly human.

This thesis will use the argument analysis method. It will analyze the arguments that have

already been proffered in defense of punishment. It will then analyze what J. J. Rousseau puts

forth as a good argument in defense of punishments, and analyze the arguments of those who

have commented on the work of Rousseau. It will also do a conceptual analysis of key concepts

such as “punishment and freedom”. This study will be concerned with what punishment is, and

the justification of the penal system under criminal law.


6

The first chapter will critically assess the various perspectives that have attempted a justification

of punishment. In this chapter it will be suggested that, most, if not all, do not adequately provide

a justification for punishment. Chapter two will begin to lay out the crux of this thesis by looking

at the concept of freedom especially from the point of view of Rousseau as a basis for the

argument to be put forward, which is “contractarian” and specifically Rousseauean in nature.

Chapter three will put forward the argument that punishment promotes freedom instead of

curtailing it. Chapter four will compare the Rousseauean Justification of punishment with other

justifications for punishment and suggest that the Rousseauean justification is a more viable

option. The fifth chapter will offer a conclusion and suggest possible areas of further study.


7

CHAPTER ONE

LITERATURE REVIEW OF SOME ATTEMPTED SOLUTIONS TO THE

PROBLEM OF THE JUSTIFICATION OF PUNISHMENT

This chapter will take a critical look at the various traditional approaches to the justification of

punishment. First, it will look at the Consequentialists Solution which is mostly utilitarian in

nature. Secondly, it will consider the Retributivist justification for punishment. Thirdly, the

hybrid theories for justifying punishment will be touched on. Finally, other non-traditional

solutions to the problem of justification for punishment will be looked at.

1.1 The Consequentialist Solutions

There are two ways of putting up a defence for punishment with this solution. It is possible to

approach the justification of punishment in the broader context of the consequentialist ethical

theory, in which case any behaviour is considered acceptable, if it does not have alternatives to it

that can bring about a better consequence than the behaviour under consideration. The second is

a defence that posits that punishment is one of those actions morally acceptable because it brings

about positive consequences.8

The first variant of the consequentialist solutions is the Act Utilitarian version of

consequentialism. It is the kind of utilitarianism that posits that individual human action should

rightly attract moral evaluation, and the moral evaluation should be made in the light of how

such an action promotes happiness for the greatest number. This theory submits that punishment

is justified because it promotes the greatest happiness for the greatest number. For instance, a

murderer‟s incarceration will significantly reduce his ability to commit further crimes while in

8Cf., Boonin David, Op. Cit., p 37.


8

prison. It is also likely that such an act of punishing the murderer would also serve as a deterrent

for the murderer in question or those contemplating committing the same crime.9

This position is not without some objections, the first being that since the end seems to justify the

means here, the means to acquiring the desired consequence of deterring an offender and other

potential offenders may be achieved by any means possible, including punishing an innocent

person. For instance, if punishing an innocent person (widely regarded as guilty or not) would

prevent rioting in a community, this position would consent to it. In response to this accusation,

the Utilitarian argues that any kind of suffering meted out on a person who is innocent of the

guilt for which he is punished is anything but punishment, since punishment suggests guilt for

some wrongdoing. This response suggests that the “punishing the innocent” critique against the

Utilitarian theory then is based on a mistaken conception of what punishment is.10

Another

attempt to rescue this position from the objection of punishing the innocent is that it is too

expensive to keep this a secret if it were so; there is the chance that people would discover the

truth and it would end up in dire consequence and so is unacceptable on utilitarian grounds.

Against this response, however, two further arguments can be made. One is to the effect that

there are many instances where it was discovered that people were wrongly convicted and yet

this did not in any way reduce the efficacy of the law. The second refers to how vicarious

punishments11

will be acceptable on utilitarian grounds and does not require that it be hidden. In

9Cf., Boonin David, Ibid., p 39.

10Cf.Cf. Benn S. I., “An approach to the problems of punishment” in Philosophy, Vol 33, No. 127, Cambridge

University Press, 1958, accessed from www.jstor.org on 12-01-2018, p331-332. 11

Vicarious punishment refers to the kind of punishment meted out on a beneficiary of an action though the

beneficiary did not commit the action that he benefits from. For instance, a student is punished alongside his/her

father when it is discovered that his/her father purchased exam papers for him/her, before an exam was written, so to

have an advantage over others. It is suggested that if the parent alone is punished many parents will still do this since

they are ready to suffer for their child‟s sake. However, if the Child was punished with the parent, then many parents

will be unwilling to bring such hardship on their children and so will desist from such an action. Such an action

obviously punishes the innocent child and does so publicly and would also be a good deterrence to parents. This

would be acceptable to the utilitarian and would mean punishing the innocent person (child).



9

fact, vicarious punishments are more effective, considered with a utilitarian eye, and bring about

the desired consequence when they are public. If the “punishing the innocent objection” is

accepted by the Act Utilitarian position, however, the implications are that it does not draw a line

between the innocent and the guilty, which is morally unacceptable and counter intuitive since

punishment is supposed to be for those who are guilty.

Not punishing the innocent, which is the other side of the coin, could also be an argument against

the Act Utilitarian version. There may arise cases in which not punishing the guilty may bring

about a greater utility than punishing them. In such cases a utilitarian position, to be consistent,

will have to tolerate allowing the guilty to go free, but that is also counter intuitive knowing that

a justification for punishment would not just propose punishment as an option, but impose it as

an obligation to be meted out on the offender.12

The other objection to the Act Utilitarian

justification is that this theory will accept unacceptably severe punishments in some cases and

unacceptably slight punishment in other cases once it will produce a great degree of utility. Some

critics, especially sympathetic to the retributivist‟s solution, accuse the utilitarian of throwing out

of the window, the principle of proportionality in which the punishment is proportional to the

crime committed. Again, there are many factors that should be considered when judgment is to

be placed on the action of a person. Whether the action was voluntary or not, and whether there

are extenuating circumstances that push a person to commit some wrong doing should be

considered. When it comes to this position, because it is forward looking, it does not take into

consideration the circumstances surrounding the act that is committed and how the offender

could possibly not be held responsible to a certain degree.

12

Cf., Boonin David, Ibid., p. 53


10

A further argument against such a utilitarian position is that it uses the offender to an end, which

is morally unacceptable because it does not treat him with dignity as a person. In his Metaphysics

of Morals, Immanuel Kant makes similar claim that makes all this clearer:

Punishment by a court (poenaforensis) ... can never be inflicted merely to promote some other

good for the criminal himself or for civil society. It must always be inflicted upon him only

because he has committed a crime."13

For Kant, some future good should not be our motivation for punishment. When we punish, the

human being should not be used as a means. He should be an end in himself and we should

consider only the wrong he has committed, for which he has brought upon himself the

punishment accruing from the action he carried out.

On the pertinent issue of not making a human being a means to an end to serve the good of

another, Kant insists that,

. . . If Justice and Righteousness perish, human life would no longer have any value in the world. –

What, then, is to be said of such a proposal as to keep a Criminal alive who has been condemned

to death, on his being given to understand that if he agreed to certain dangerous experiments being

performed on him, he would be allowed to survive if he came happily through them? . . . a Court

of Justice would repudiate with scorn any proposal of this kind if made to it by the Medical

Faculty: for Justice would cease to be Justice if it were bartered away for any consideration

whatever.14

Kant proposes that there is no substitute for justice; meting out to one what he deserves and, in

this case, what his committing of a crime has obliged that we hand to him by way of punishment.

Whatever good an alternative cause of action would bring to the society is not a priority and

must not replace the infliction of pain or deprivation of good which a criminal, by his free action,

has come to deserve.

Another utilitarian version is called Motive Utilitarianism. This suggests that the appropriate

object of moral appraisal is the motive with which people perform their actions. Thus, the motive

13

Immanuel Kant, Metaphysics of Morals, Rojer J. Sullivan (Translator), Mary Gregor (ed.), Cambridge University

Press, (1797) 1996, 105 (6: 331) 14

Immanuel Kant, Ibid., 105 (6:332)


11

that produces the best overall utility is what is good and should motivate our actions.15

They

assess motives because actions themselves are not enough for imputing culpability. The

intentions behind the actions will reveal more about the action and help in determining whether

culpability can be imputed or not. For instance, the one who kills another in self-defence, and the

man who kills another to successfully rob him, would have committed the same act if it was

down to just the fact that they both killed a person. However, a consideration of the

circumstances behind the killings will help us treat them as two different outcomes, the former as

“self-defence” which is not a crime, and the latter as “murder”, which is a crime. The same can

be applied to punishment which is an action, and thus should be assessed based on the motive(s)

for which punishment is meted out. The motive utilitarian suggests that having the motive to

punish those who have committed crimes will result in the best total utility as an outcome

compared to any other motive. Thus, punishment is justified because the motive behind

punishing a person, which is the well-being of humanity, compared to any other motive results in

more overall utility.

A few arguments are made against this position, also. The first questions how successful we

would be with determining the true motives of people‟s actions, considering that motives are

usually internal to the self and known to others only when expressed. Not many people after

doing wrong would admit that they harboured the motive from the beginning, knowing admitting

such would result in some form of punishment. Again, a permanent motive of not punishing the

innocent would conflict with the basic principle of utilitarianism, when punishing the innocent is

in fact what could bring about the greatest utility.

15

Cf., Boonin David, Op. Cit., p. 77-79


12

There are also some consequentialist views that are not utilitarian. One such reasoning suggests

that it is justified to punish people because it will check those who want to exact the judgment

themselves. This claim is that, when the state assumes the responsibility of punishment,

individual victims will desist from the passionate desire to exact their own revenge on the

offender. This consequentialist position is also subject to the objection that the innocent may be

punished or that disproportionate punishment may be meted out once the consequences thereof is

considered as ultimately good for the society.

1.2 Retributivist Solutions

The retributive justification for legal punishment is said to be backward looking; as it always

goes back to the crime committed. Ted Honderich identifies Immanuel Kant, the eighteenth-

century German philosopher as a famous retributivist.16

In Kant‟s Philosophy of Law he says

. . . Punishment can never be administered merely as a means for promoting another Good, either

with regard to the Criminal himself or to Civil Society, but must in all cases be imposed only

because the individual on whom it is inflicted has committed a Crime. For one man ought never to

be dealt with merely as a means subservient to the purpose of another… Against such treatment

his Inborn Personality has a Right to protect him, even though he may be condemned to lose his

Civil Personality. He must first be found guilty and punishable, before there can be any thought of

drawing from his punishment any benefit for himself or his fellow citizens.17

What Kant rejects is exactly what Utilitarianism subscribes to; looking forward to what impact

the punishment would make on the offender or on the society. He clearly states that the only

thing to be considered is the crime committed in the distant or not too distant past, which makes

the Retributivists theory backward-looking. In no way, Kant suggests, should a man be treated

(used) to serve the good of another because this would be treating a man not as an end but to

achieve an end. This debases man, and makes him only some instrument.

16

Cf., Ted Honderich,Punishment, Pluto Press, 2006, accessed from www.jstor.org, on 21/04/2018, p 17. 17

Immanuel Kant, Metaphysics of Morals, Rojer J. Sullivan (Translator), Mary Gregor (ed.), Cambridge University

Press, (1797) 1996, 105 (6: 331)



13

1.2.1 Desert-Based Retributivism

The Retributivists theory of Justification holds that those who have committed an offense must

suffer as their victim suffered. A more refined version puts it that, punishment must fit the crime

committed. As a Retributivist, Kant suggests that those who have committed acts that are

morally wrong have “earned” for themselves a form of punishment that is commensurate with

the moral culpability of the act they committed.18

This kind of retributivism is referred to as the

desert-based retributivism, and Michael S. Moore and Stephen Kershner are strong proponents of

this position.19

These desert-based retributivists do not only hold that we have a right to punish,

they also contend that we, in fact, have a duty to do so. They make recourse to the usual human

reaction to war crimes and serious atrocities that are committed against humanity. Primoratz20

,

for instance, argues that if in such cases, virtually everyone has the intuition that punishment is

deserved, and it should be same in crimes that may even be considered less serious. For many,

this does not suffice as a justification but merely as a reminder of the problem itself. That people

believe in some cases intuitively that punishment is deserved, is in fact the reason why we have a

problem on our hands because that still begs the question, what moral justification makes it right

to mete it out on those who are believed to have merited it? Another point is that this will be

acceptable as the basis for justifying punishment if we could take for granted that every intuitive

inclination is morally justifiable. Unfortunately, we do not have such confidence in our intuitions

and there are many such inclinations that are unacceptable.21

A good case may be made for

intuition that is based on the norms of a people like in the case of GLAH AND ANOTHER v

18

Cf. Immanuel Kant, Philosophy of Law, Translated by W. Hastie, Clark, Edinburg, 1887, p 195-198. 19

See Moore Michael S., “The Moral Worth of Retribution” in Murphy, ed., Punishment and rehabilitation, (3rd

Edition), 1987, p 94-130. and Kershner Stephen, “A defence of retributivism” in International Journal of Applied

Philosophy, Vol. 14, No. 1, p 97-111. 20

Primoratz Igor, Justifying Legal Punishment, Atlantic Highlands, New Jersey, 1989 and “Punishment as

language”, Philosophy, Vol. 64., p 187- 205. 21

Cf., Boonin David, Op. Cit., p 87-93


14

THE REPUBLIC [1992] 2 GLR 15-18; The first appellant had an affair with his sister-in-law

and mother-in-law and had two children with each of them. He had lived peacefully with the

three women in the same house for over seventeen years. They were warned by the community

to desist from what they term immoral association to which they paid no heed. The appellants

were therefore charged with engaging in offensive conduct conducive to a breach of the peace.

The prosecution‟s case was that if restraint was not exercised the appellant‟s conduct could result

in serious a breach of the peace. He was convicted and appealed. Held, allowing the appeal, that

the offence of conduct conducive to the breach of the peace could only be committed at a public

meeting or in a public place. Since the appellants acts complained of were committed away from

the public‟s eye and on the evidence, they have lived together peacefully for over seventeen

years, the people who find this offensive should be the ones restrained from conducting

themselves in a way to cause a breach of the peace. The objection is however raised that even in

such similar cases, not every such intuition based on the norms of some people would be

acceptable.

Some retributivists even admit that while punishment is an evil, the wicked cannot be allowed to

contravene the law and by so doing, prosper at the expense of those who are law-abiding. This

view seems to claim that punishments are necessary because crime cannot go unpunished. If

people were not held accountable for their actions, there would be no motivation for many to be

virtuous.22

There is a further claim that Moore and Kershnar in their desert-based retributivism

suggest that the world would be a better place if those who did wrong were punished, unlike in

the case where those who do wrong can go scot free. Some contest this position on the premise

that such justification seems to consider consequence, especially of making the world a better

22

Cf. Benn S. I., “An approach to the problems of punishment” in Philosophy, Vol 33, No. 127, Cambridge

University Press, 1958, accessed from www.jstor.org on 12-01-2018, P 327-328.



15

place, and that may be veering from a more retributive stance and collapse into a utilitarian

stance. Moore says the emphasis is not on the consequence the punishment produces, but that

punishing those who contravene the law has an intrinsic good to offer to the society, and that it

only further makes the world better.

There are several arguments against the desert-based punishment, the first suggests that there are

people who break a just and reasonable law, and yet do not deserve to be punished. An example

would be the case where a person drives a man with a medical emergency to the hospital in a car

that has not been deemed roadworthy. Is this good deed to be punished because he has deserved

it by driving a car that is not roadworthy although he did it to save a life? That clearly seems to

be unacceptable. Such an act, though unlawful, is inspired by an honourable motive and its

motive should count for something. Some argue that it counts for something and vindicates the

law when sentence is reduced because motive is considered.

The other side to the coin though points to the fact that the roadworthy law is to prevent

endangering many other road users and should be an overriding factor in determining whether

such an offence should be unpunished. In this case the man who saves a life by driving a car that

is not road worthy will be punished or at least given a suspended sentence23

. Our intuition, so

relied on by the desert-based retributive position, certainly would not even support such a

position and as many would consider the act as noble and would praise the bravery and good will

of such a person. If this is so, then the guilty will end up not being punished and that is an

important function of punishment; to clearly distinguish between the guilty and the not guilty,

and to punish the guilty.24

The other side of the coin is that there are those who do not commit

23

Suspended sentence refers to a judicial punishment which is usually not enforced unless a further crime is

committed during a specified period. 24



16

any infractions against the law and yet, per our intuition, we feel they deserve to suffer as in the

case of a man who continually cheats on his wife. Such a person is legally innocent, but we

would have some feeling or intuition that such a person deserves to suffer no matter how intense

or not the feeling may be. Since such desert is the basis for justifying punishment, the non-

offender could also be punished.

There are those who also make a persuasive argument with the dichotomy between what is

deserved and what is morally acceptable. The point is that when we claim a person deserves

something, and the world would be a better place if he gets what he deserves, it is not necessarily

a guarantee that it is morally permissible to impose such a treatment.

1.2.2 Forfeiture-Based Retributivism

One version of the forfeiture-based retributivism refers in general to a theory about rights and

agrees that punishment violates rights, but this is possible because by committing a crime, a

person has forfeited his rights. Such retributivists argue that one‟s right includes one‟s duty to

respect the rights of others. Therefore, disrespecting the rights of others also means one has

forfeited one‟s own rights, suggesting that the rights he loses are the ones he has violated and

none other than that. It is difficult to understand how this is workable.25

So simply respect the

rights of others and enjoy yours, or violate the right of others and lose yours. The argument

against this position however is that people have some rights because of some essential feature of

their nature (rationality or humanity) and so it is difficult to see how one will lose his rights just

by breaking the law if he has for instance not lost his rationality and humanity.26

25

Cf. Ted Honderich,Op. Cit., p 31-32 26



17

A further argument made against the forfeiture-based retributivism asks which rights the person

forfeits; whether it is same one he has violated or some other? If it is the same one he has

violated, then this position subscribes to lex talionis, also known as “same-actions retributivists”

suggesting that what a criminal has done is exactly what must be done to him. For instance, a

murderer will have to be executed. Will this mean that the rapist must be raped, and the robber

robbed?27

This is an unacceptable conclusion. If, however, like others have suggested, we should

rather say that the offender has forfeited equivalent rights, which means not the same right, we

still have a problem. Because if the so called right “A” is equivalent to the violated right “B” and

it is unacceptable to deprive a person of right “B‟, it should be unacceptable to deprive the

person of right “A” also if they are truly equivalent. If, however, it is admitted that they are not

equivalent, then it will either result in “over-punishing” or “under-punishing” an offender which

will not be just.28

The possibility of allowing people to personally exact their own pound of flesh

is encouraged by the forfeiture-based retributivism. If people lose their rights just by violating

another person‟s rights, then in the absence of that right the one harmed can retaliate.

There is another argument that what we forfeit is usually what we have no right to hold on to,

and while this may cause some harm, the harm is not intended and thus cannot be called a

punishment. If “X” goes for a loan from Zena Bank and uses his house as collateral for the loan,

if he defaults on the loan, “X” forfeits the house. Even though the forfeiture will cause “X” some

pain, the pain is only foreseen, and not intentional or not the main purpose for taking the house,

as the concept of punishment would require it, so that it is no punishment if punishment is pain

intended.

27

Cf. Ted Honderich, Op. Cit., p 29-30 28



18

1.2.3 Fairness-Based Retributivism

This principle is based on fairness. It is a position that is strongly put forth by Herbert Morris29

but previously espoused by Kant and Hegel. It posits that it is unfair not to punish the offender

because he enjoys some unfair advantage over the non-offender. Finnis30

, for instance, talks

about how unfair it is to allow the guilty to go unpunished.

Against this theory is the argument that we will then not have to punish one who has done wrong

that is equal to a wrong he suffered himself. If Kofi‟s television is stolen, he has not been treated

fairly and has lost the “level” he used to be, therefore when he also steals the same kind of

television from another person, we should concede that he is back to the level he used to be. If

Kofi is punished for stealing, it would rather create an imbalance. On the other hand, if Kofi is

not punished because the balance is already restored, it lets an offender to go scot free.31

A

counter argument from the fairness based retributivist however is that, what Kofi has done by

stealing a television ( whether his or not from another) is not to have restored himself to his

“original level”; he would have added moral and legal guilt to his original loss, as well as

inflicting unjustifiable loss on a third party.

1.2.4 Debt-Based Retributivism

Debt-based retributivism suggests that when an offender violates the rights of another, the victim

suffers two kinds of losses; the material loss – which can usually be quantified – and the moral

loss – which cannot easily be quantified. However, the offender owes both to the victim and

must be made to pay both back. The problem however is the question of whether moral debts can

be paid or not. There is even a more germane problem when it comes to paying moral debts in

29

Morris Herbert, “Persons and Punishment” in The Monist, Vol. 52, 1968, p 475-501 30

Finnis John, “The restoration of Retribution”, in Analysis, Vol. 32, No. 4, 1972, p 135. 31

Cf., Boonin David, Op.Cit., p 119-143


19

the case of murder, to the one who is dead. This is a great dilemma in transitional justice. It

suffices to say however that, in most cases of murder, the next of kin or family left behind are

beneficiaries of what may not necessarily be owed them. This certainly makes considering

punishment as a repayment of debt to the victim a problem.32

1.2.5 Revenge-Based Retributivism

Essential to solving the problem of punishment is the concept of revenge. It suggests that if the

state does not punish the offender, someone else would. Some retributivists have argued that this

is the best way of misunderstanding retributivism while for some this is the most primal way of

understanding retributivism. Revenge here is said to be the yearning to have the wrongdoer

suffer for what he has done. Since it is the offender who has incited the feeling of revenge in the

victim, he owes it to the victim to satisfy the desire for revenge. Because realistically revenge is

so widespread it is suggested that it is better if the state carries it out, otherwise people would

take the law into their own hands and it would have very dire consequences. This position

presumes that the state will be able to carry it out dispassionately and proportionally while

individual victims would not be able to do so. Take for instance the case in which a man killed

more than one person? How would the thirst for justice be assuaged in all the victims‟ families

when he can be killed only once, and so only one victim‟s family can kill him to satisfy their

urge of revenge? The argument against this point of view is usually against the position that one

who excites a certain feeling in a person owes it to them to satisfy it. And the argument is that

this cannot be accepted because it places an undue burden on anyone who by their actions arouse

any sort of desire in another, and in this case a desire for revenge.

32

Cf., Boonin David, Ibid., p 149-152


20

1.3 Hybrid Solutions to the Justification of Punishment

John Rawls attempts a combination of the two traditional positions (Utilitarian and Retributivist)

by making an important distinction between the justification of a rule (an institution) and the

justification of an instance of the application of such a rule. From that distinction he suggests that

the two traditional positions of justifying punishments are in no way contradictory; in fact, it

seems from his argument that one follows the other. He indicates that the utilitarian theory is

more fundamental and justifies the rule that, people should generally be punished for flouting a

law because that would auger well for society‟s preservation and social control. This, for him, is

what the law makers will have in mind when considering which actions should be punished. He

suggests then that the retributive theory is good for justifying the application of this principle or

rule and is for judges who apply what the legislators have fundamentally laid down. The judge

therefore will be concerned about why this person must be punished and why in a way, by

explaining that he must be punished because he broke a rule and the severity is determined by

considering the depravity of the act. To illustrate this, Rawls gives the following scenario:

Suppose a child asked his father why people were generally imprisoned, the father could answer

that it was to protect good people from bad people or to stop people from making our society

uninhabitable. However, if the child asked why person “X” was put in prison yesterday for say,

twenty years, the father would say person “X” robbed a bank, put on trial and found guilty for

the act and thus sentenced to such a term of imprisonment as was deserving of his crime

yesterday.33

So while the content of a rule that a judge uses appeals to is Retributive, the

justification of the rule itself is Utilitarian.

33

John Rawls, “Punishment” in Joel Feinberg et a. Philosophy of Law, 4th

Edition, Wadsworth Publishing Company,

California, 1991, p 651-655.


21

An objection to this position is the rule worship problem. It seems to suggest that a judge has no

option than to follow the laid down rules. What happens if one realizes that breaking the rule will

in fact lead to greater utility which should generally appeal to any utilitarian? The judge would

have to abandon the rule per utilitarian considerations, otherwise he would be settling on an

alternative that sacrifices arriving at the greatest possible utility.34

Why will other important

factors like motive not form a strong basis for determining the guilt or otherwise of a person like

in the popular case of HYAM V DPP[1975] AC 55 in whichthe appellant was convicted for

murder for deliberately setting fire to a letter box which spread to a dwelling house killing two

girls as a result. The appellant claimed her intention was to frighten the mother of the deceased

girls who was at the time having an affair with her ex-boyfriend into leaving the neighbourhood

and not to cause death or grievous bodily harm. The conviction was upheld by the Court of

Appeal. On appeal to the House of Lord, the issue was whether the knowledge that an act which

causes death will probably cause the death of or grievous bodily harm to some persons? Held,

dismissing the appeal, that the fact that is correctly foreseen as a highly probable consequence of

what is done is the same thing as the fact that the state of affairs is intended. The knowledge of

the accused that it was highly probable that her act would result in death or grievous bodily harm

established the necessary intent to prove murder. The death is as such the probable consequence

of the appellant‟s action therefore forms the necessary intention to commit murder.

There is also a case for disproportionate punishment because the laws will be made based on

what brings the most utility. This would mean that, if for instance establishing execution as the

penalty for over speeding would reduce the carnage statistics on our roads, it would be

acceptable to legislate and carry out such legislation to scare off many more from speeding.

34

Cf., Boonin David, Op. cit., p. 69-70


22

Since judges would have lost their discretion in this solution, such severe punishment would be

meted out to an offender for over speeding. Also, since it would not allow for other

circumstances to be considered but adhere strictly to the rules, a person who also speeds to the

hospital only to convey someone in medical crisis must also be executed in strict adherence to a

rule.35

This is certainly unacceptable, and a utilitarian will surely not go for selecting an absolute

rule for decision making over one that is flexible enough to consider each case based on the

utility it produces.

H. L. A. Hart36

also provides another hybrid theory of the justification of punishment which

relies on his distinction between the general justifying aim of punishment and its distribution.

This theory of Hart is inspired by that of Rawls. For Hart, the justifying aim of punishment in his

view is deterrent (with a utilitarian framework) and the justification of its distribution is

retribution. There are some who think that such a distinction may not be as sharp as Hart and

Rawls make it seem. If in fact each offender is punished based on what he or she has deserved

when punishment is distributed, then how it is that easy to not have desert as part of the general

justifying aim of punishment. In fact, it seems that the consequentialist aim cannot go without

referring to retributive undertones, since the aim is consequentialist only because it distributes

punishment only to those who have deserved it to bring about some desired consequentialist

outcome.

The next theory which some have described as the most widely accepted mixed or hybrid theory

for the justification of punishment is referred to as negative retributivism.37

While the standard

view of retributivism is described as that view that holds that only the guilty are to be punished,

35

Cf., Boonin David, Ibid., p. 71-73 36

See Hart H. L. A, Punishment and Responsibility, ( 2nd

Edition), Oxford University Press, New York, 2008. 37

Cf., Brooks Thom, Punishment, Routledge, London, 2012, p 96


23

and it should be done in direct proportion to the wrong they have done; desert is associated with

both the distribution and the severity of punishment. What is known as negative retributivism

however does not give desert that much of a dominant role. In negative retributivism, while

distribution is based on desert, severity is associated with consequentialist considerations. So, in

negative retributivism, desert is a necessary condition but not sufficient. Negative retributivism

thus assures that only the guilty will be punished but it also makes room for situations in which

deserving to be punished alone is not enough to punish a person without considering whether the

aim of general deterrence will be achieved. This theory has a justification which establishes the

link between present punishment and past crime and not present punishment and future

consequences. This position will justify pardons or suspended sentences, in that it may be

established that a person deserves to be punished; however, because the punishment may not do

any good to the society or may in fact do harm to the society (result in say, civil war or unrest)

the punishment is suspended.38

Negative retributivism like the other hybrid theories also attempts a sharp and supposedly fine

distinction between the general justifying aim of punishment and its distribution that may be

unsustainable. The question is, how come desert can help in pointing out who should be

punished and then not be able to go on to require that once it is deserved it must be meted out to

the one who has deserved it? Again, this hybrid solution like many others are considered some

form of rule utilitarianism which suggests that we should in our actions be motivated by pursuing

the greatest happiness for the greatest number of people within the framework of a set of rules.

This sort of proposal is usually met with the objection of whether pursing the greatest good is

38

Cf., Brooks Thom, Ibid., p 96-99


24

what is the overriding criterion, or the rules are, especially in cases where the rules may not go

for the option that promotes the greatest happiness for the greatest number.

One can also make mention of the expressivists position which posits that punishment should be

an expression of the community‟s disapproval and public condemnation of a certain action.

Punishment is thus a symbolic disapproval of crimes and not of persons who are accused of such

a crime. It may be unidimensional, which refers to the community expressing its displeasure to

the criminal alone. It may also be two-way when the community expresses its disapproval of the

actions of the criminal and the criminal responds by showing remorse. The second one is what

some refer to as the communicative theory of punishment. This is basically a sort of revision of

the expressive function of punishment.39

In this case punishment is mainly imprisonment or

some harsh treatment and is usually expected that the time in prison will offer the offender an

opportunity to reflect and accept their fault and reform. That is, all of this is to express the

community‟s disapproval of the crime that has been committed. Thus, punishment becomes more

like a metaphorical expression of the society‟s disapproval. Expressivism is different from

retribution in the sense that retributivism does not necessarily look forward to the reformation of

the offender, but expressivism, especially the communicative theory requires that the offender

reforms. For the expressivist‟s punishment achieves multiple goals like retributivists‟ desert,

rehabilitation of the offender and crime reduction. Punishment as an expression can be said to be

metaphorical in form, an expression of public anger, fear or disgust.40

There is a view that doubts that the whole community can express a single voice or whether the

message expressed means same to all, since the expressivists suggests that the whole community

speaks with one voice of disapproval when punishment is meted out. Offenders themselves may

39

Duff Antony, Punishment, communication and Community, Oxford University Press, New York, 2003, p 80. 40

Brooks, Op. Cit., p 101-107


25

not receive the punishment as the society may expect him to (i.e. a message to express

disapproval). Also, some suggest that such attention given to punishment, by the expressivist

may be giving punishment unnecessary attention and prominence since what is rather desirable is

that people did not commit a crime so that they are not punished. Again, if punishment relies on

public disapproval, the court of public opinion may not always be a reliable one, so why make it

the basis for justifying punishment. The argument is made that if it is to express public

disapproval there may be better ways of expressing that; prison will certainly not be the only one

and in any case, prison has not always reformed the offender. The other issues are about what

happens when the offender does not reform; is there something more to be done to him? What

about when the offender reforms immediately after the act because he is deeply affected by the

result of his actions, would we still punish him?

1.4. Other Non-Traditional Solutions

1.4.1 The Consent Solution

The consent solution is another which does not belong to the two main divisions assessed earlier:

consequentialist (utilitarian) and retributivists theories. C. S. Nino is one of the major proponents

of punishment as consent. It is supposed that it can be compared to a person who stops a taxi

voluntarily and rides in it to his destination. He gives a tacit consent that he is ready to pay the

fare even if there is no negotiation between him and the taxi driver at the onset of the trip. It is

supposed that because the action is voluntary, and it is done with a consequence in mind, there is

consenting to bear the consequences that accompany the action. Nino says, “A necessary legal


26

consequence to committing an offense is the loss of immunity from the punishment that the

person previously enjoyed.”41

An objection to this position questions if the immunity the offender waives is legal or moral. If it

is a legal right, then that is acceptable, but it does not solve the problem of punishment because

the problem is about how punishing a person is morally acceptable and not a legal challenge. If

the defender of the consent theory however say that it is immunity from some moral right that is

waived, then this still presents a problem. The issue on hand is exactly why breaking a just law

morally warrants punishment, or makes a person lose their moral immunity.42

The other objection is about the ignorant offender. This refers to an offender who is not aware

that his action could result in the consequences that the state prescribes as punishment. His

ignorance would count for something in his defence, as he did not give consent to warrant the

consequences. A defender of the consent-based justification would will give a counter argument

by referring to culpable ignorance in this case, but it would, however, not hold because too many

people are ignorant of the law and its associated penalties for breaking them, and this could be

due to the fact that we have too many laws for a lay man on the street to be familiar with all of

them. Again, what happens if the action was not intentional? Does the offender suffer the

consequences like one who did so on purpose? And if consent must always be intentional, would

that not mean anyone could easily hide behind his actions not being intentional and thus consent

not given?

41

Nino C. S., “A consensual theory of punishment” in Simmons et. al., eds., Punishment, 1983, p 102. 42

Cf., Boonin David, Op.Cit., p 157- 160


27

1.4.2 The Reprobative Solution

Another solution proposed by R. A. Duff is referred to as the reprobative solution. This solution

proposes that the state has a right to punish an offender because it is the duty of the state to

express disapproval at the unlawful actions of the offender, especially to the offender. Thus, the

right to punish is derived from the right of the state to express disapproval. Punishment is

therefore treated as a censure. This will then mean that the permissibility of punishment is

founded on the permissibility of censure. An objection to this solution is that there are many non-

punitive ways of showing disapproval or forms of censure and so it will not be necessary to

intentionally inflict pain if censure is all we seek to achieve when we punish.43

1.4.3 Punishment as Education

A further solution to the problem of punishment proposes punishment as education. Punishment

in this case becomes a compulsory moral education. By punishment, the state wishes to covey to

the offender that his actions harmed another person, and that, it is not good to harm others. An

argument against this position is one that refers to those who are already repentant or easily

reformed just by observing the consequences of their actions as in the example of a woman who

loses her child because she did not follow traffic regulations about strapping on the child‟s seat

belt. While you may have one or another parent who would be unmoved by such a situation most

parents would have learnt their lessons by the loss of their child. Punishment in this case would

be superfluous and unwarranted if punishment is only meant to educate a person about how

wrong their actions are. Again, such a solution is useless considering that there should be many

more non-punitive ways of bringing a person to the recognition that their actions are wrong.44

43

Cf., Boonin David, Ibid., p 171-180 44

Cf., Boonin David, Ibid., p 180-191


28

It seems that the various attempts that have been proposed as solution to the problem of

punishment have some defect that makes the problem unresolved. We cannot but keep at it, to

find one that adds up or is an entirely different approach that makes a more satisfactory

justification for the concept and practice of punishment. Between the Retributivist and the

Utilitarian, it is all a difference of procedure in how to defend the use of punishment in society,

especially when a crime has been committed. A consideration of the hybrid theories also leaves

us unsatisfied. I wish to propose in this thesis, a different area that has not been widely and

deeply explored. This is a contractarian approach that has the ideas of Jean Jacques Rousseau as

its underlying inspiration. Jean Jacques Rousseau to justify punishment provides a good addition

to justifying the use of punishments against offenders in society.

I propose a contractarian theory because it offers a sort of voluntary punishment scheme in

which case, we can avert the problem of using someone to deter another since he has agreed to

impose such punishment on himself. Finkelstein for instance notes that even though we have a

rich variety of contractarian ideas, Thomas Hobbes has only a brief discussion on the subject of

punishment and in recent years many have admired the thoughts of Rawls but criticized that

most of these theories have been mostly deontological in nature than contractarian.45

A

contractarian justification for punishment will make it easier to justify what would be a voluntary

agreement to an involuntary one, because the basis of a contractarian theory for justifying

punishment will posit a consensual agreement as foundation for the institution of punishment.

Deterrence seems unattractive because it does not respect the humanity of person by using him to

achieve social control; it thus travels across persons. This for most theorists is unacceptable, as it

is not fair, and thus cannot be the foundation for justifying an institution like punishment which

45

Finkelstein Oakes Claire, “Punishment as contract” in Penn Law: legal Scholarship Repository, 2011, p 330-336.


29

should have fairness as its basis. It seems that the utilitarian theory has no benefit in it for the

individual offender. A contractarian theory will focus on the individual offender and what the

punishment does to him or makes of him as a priority, meaning that it will not travel across

persons and it will look at how the offender also benefits from it. Again, from the retributive

point of view desert is critical and when one has deserved it, another apart from the offender is to

inflict some punishment on the offender. The question is what right does anyone have to inflict

some harmful treatment on another? What the contractarian theory offers is the novelty in which

the offender technically inflicts the punishment on himself because he agreed to be punished if

he broke the law.

The contractarian theory proposed in this thesis from Jean Jacques Rousseau will flow from the

very nature of man as free and from the way men come together to form society. It will establish

how punishment upholds the freedom of a person rather than taking it away. While the

retributivists are described as backward looking because they go back to the offense committed

to justify punishment, and the Utilitarians are referred to as forward looking because they look

forward to the consequences or the utility of punishment, I propose that a Rousseauean

Justification is inward looking because it focuses on the nature of man and his freedom as the

basis for a stronger justification to the concept of punishment.

Essential to human nature is the freedom of man. Once this freedom is taken away, he is treated

like a brute or anything except human. Therefore, if punishment takes away a person‟s freedom,

then one can say it is unacceptable because it takes away what makes him human and reduces

him to something else. This thesis seeks to establish that rather than taking away freedom,

Rousseau provides a legitimate basis to argue that punishment promotes freedom and thus

promotes “humanness” and thus is justified.


30

In this chapter, I have attempted to show that none of the neither traditional nor hybrid solutions,

have succeeded in providing a satisfactory justification for the institution of punishment. In the

chapters that follow I shall attempt to give an additional theory to justify punishment based on

the ideas of J. J. Rousseau on the freedom of man and how punishment does not curtail such

freedom but rather promotes it.


31

CHAPTER 2

FREEDOM AS BASIS FOR THE JUSTIFICATION OF PUNISHMENT

The previous chapter concentrated on most of the justifications proffered for the institution of

punishment in criminal law. It looked at the two traditional justifications which are the utilitarian

(consequentialist) and the retributivist justifications for punishment and the various criticisms

raised against them. It also considered other hybrid solutions to the problem of justifying

punishment such as that which has been proposed by Rawls and the criticisms that are levelled

against those hybrid solutions. The current chapter begins with a thesis for a justification for

punishment which is inspired by the thoughts of Jean Jacques Rousseau. It is, therefore,

contractarian in nature. There are many who suggest that punishment is not justified because it

inhibits human freedom. This thesis seeks to propose that punishment is justified, because rather

than undermining freedom which is an essential human feature, it rather promotes it. This

chapter considers the concept of freedom especially with Rousseauean undertones.

2.1 Freedom: Essential to Human Nature

The nature of the concept of freedom is an important subject, which has evoked varied

interpretations. Moralists have praised freedom over the years and almost all of them have highly

emphasized its indispensability when the nature of a human being is the subject under

discussion. Existentialists such as, Jean Paul Sartre, for instance, would say that “man is

condemned to be free”46

; Hegel writes that “the human being is free, and this is certainly his

substantial nature”47

; and Jean Jacques Rousseau says that, “to renounce freedom is to renounce

46

Sartre Jean-Paul, “ Man is condemned to be free” from the lecture, Existentialism is a Humanism (1946),

translated by Philip Mairet (1948), p 5, accessed from http://wmpeople.wm.edu/asset/index/cvance/sartre, on

23/02/19. 47

Hegel G. W, Werke, Suhrkamp, 1986, 20:307


http://wmpeople.wm.edu/asset/index/cvance/sartre

32

one‟s humanity, one‟s rights as a man and equally one‟s duties”48

. All three philosophers quoted

above suggest that it is proper to the nature of the human being that they should be free and once

their freedom is taken from them, they are comparable to a robot or to an animal and are no

longer human. Hegel also says that “this freedom is not something that is surrendered in the

state; rather, it is first constituted therein.” Rousseau seems to agree with Hegel when he

suggests that freedom that defines who we are as humans is realized in and through the state. The

state provides an enabling environment for human beings to enjoy their freedom, but also the

state could be considered an embodiment of the freedom of all the individuals who make it,

especially when the state is „rational‟ in which such individuals are involved in legislation and

administration. Two vital facts are thus discernible from Rousseau: first, that freedom is proper

to man‟s nature and second, that freedom in its truest sense is realized through the state.

2.1.1 What is Freedom?

Isaiah Berlin for instance defines freedom in two ways. He refers to the situation in which man

can carry out his or her activities without obstruction or interference from another party; this he

terms as “negative freedom”. He explains that the “interference” he talks about in negative

freedom, has to do with coercion from another person, directly or indirectly, and cannot be

reduced to every inability or incapacity to do what one wishes to do or to reach a goal (since

some illness or poverty which is not another person‟s doing may also cause inability to attain a

goal). Some political theorists, however, have cautioned that such non-interference cannot be

absolute since that can result in chaos and no freedom in the end. They advocate a kind of

freedom that considers other values such as justice, equality and fairness and thus allows some

curtailing of freedom in the formation of associations that would help create a society in which

48

Rousseau J. J., Social contract (SC), translated by Maurice Cranston, Penguin Books, London, 1968, 1:4:6.


33

people are free. In fact, it is argued that no action of man is so private that it has no effect on

other persons, and so man‟s individuality is always asserted in the context of community.49

The argument to sacrifice some freedom for other values that promote community living such as

justice and equality has attracted various criticisms. It is suggested that it is counter intuitive to

suggest that one sacrifices something to increase the quantity of it, since sacrificing a thing

means losing it. Following the principle of being, which says “a thing is what it is”, it is argued

that freedom is freedom, justice is justice, equality is equality. An increase in justice is thus not

the same as an increase in freedom, though one may argue that an increase in one thing can bring

about an increase in another. Even if the latter argument holds, it does not suggest that an

increase in justice is an increase in freedom; justice and freedom are essentially two different

concepts, although related. John Stuart Mill for instance would advocate for some substantial

degree of non-interference and insist that non-interference is vital to not degrading or denying

our nature as human.50

Positive freedom is described as that which gives the ability to a person to be his own master; so

that he governs himself and oversees whatever he does, and not dependent on any external force.

It is that in which a person is controlled by his reason and is purposefully conscious and is not

acted upon by forces from outside him (in this sense, apart from reason). This involves not being

a slave to even my own “uncontrolled passions”.51

Rousseau agrees to this position when he says

that, “…to be governed by appetite alone is slavery”52

. There is the self that is in control,

associated with reason, and so also referred to as the “higher nature”, which aims at attaining the

49

Cf., Berlin Isaiah, “Two Concepts of liberty” in Four Essays on Liberty, Oxford University press, 1969, p 3-6,

accessed from cactus.dixie.edu, on 11/01/19. 50

Cf., Mill J. S., On Liberty, Enhanced Media, Los Angelis, 2016, p 17-41 51

Cf., Berlin Isaiah, Op. Cit., p 8 52

Rousseau J. J., SC 1:8:3


34

self at its best, the autonomous self. This self is usually contrasted to what is usually referred to

as the lower self which is often under the control of irrational impulses and uncontrolled desires

needing some discipline, and so referred to as the “lower nature”, in needing discipline if it is to

rise to its real nature.53

While negative freedom wants to curb any form of interference from any

form of authority, positive freedom is more concerned with placing authority in their own hands.

The negative conception of liberty is generally what can be referred to as “freedom from”

something, while the positive conception of freedom is about “freedom to” do or be something.

2.1.2 Freedom and the Notion of the Individual

The issue of the individual deserves some form of attention on this matter. It is important to note

that a person cannot claim that he lives among other people and yet their actions do not affect

others. In this way many have criticized Mill who is regarded as one of the most liberal

philosophers when it comes to the concept of freedom and the individual. The individual cannot

be separated from the community or family he belongs to. In fact, a person‟s thoughts and

actions are influenced by their society. So, the individual always makes an impact on and is also

impacted by the society in many ways on various levels. The need for solidarity is ingrained in

the human nature and it is from this solidarity that such human needs as respect, acceptance and

recognition among others are satisfied. It seems then that freedom may not refer to mean

freedom in such a way that you are removed from everyone, or not impacted on by anyone or not

impacting anyone. Men who have fought for freedom have therefore not fought for individuals to

have no restrictions at all upon themselves, because they appreciate the challenges and the chaos

53

Cf.,Ibid, p 8-9


35

that such a reality would bring. They have rather fought for the right to govern themselves or be

involved in the legislation and governing of their collective lives.54

In the face of the foregoing will compulsion ever be justified? Mill for instance would insist that

compulsion may be justified since otherwise freedom would totally be lost as everyone would

pursue what they desire at the expense of the other. In fact, laws are to play the role of mediating,

and possibly averting such collision of interests and goals that can eventually bring one against

the other and create chaos all around. For Mill, when such freedom is guaranteed there is

allowance for people to be innovating and a constant openness to the revelation of more truth.55

While coercion may not be encouraged, is it possible that absolute non-interference would bring

us the freedom we desire?

The real self is considered as and usually refers to the social whole; a tribe or community or state

and so greater than and not limited to the individual. This understanding serves as an argument to

encourage some form of coercion, insisting that this true self can impose its will on the

individual and requires its members to keep them to promote the freedom in the real self and the

individual as well. The argument usually goes further to posit that such imposition is justified

because it is the will that the individual himself would choose at any time if their true nature,

involving the use of reason, was at work. This means that, what they are coerced to accept is not

another person‟s will but their own will, to which their empirical self might be oblivious. This

conception and theory of positive freedom has led, as is obvious by now, to the conception of a

divided self; into the transcendent, rational, controlling self (the higher nature) and the empirical

self which is a bundle of desires and passions that must be controlled (the lower nature).

54

Cf.,Ibid, p 20-24 55

Mill J. S.,Op. Cit., On Liberty, p 19-20


36

The human being possesses reason and will. With reason he discerns a course of action to take

and with his will he pursues it. Once such a process is not allowed to be carried out or is

inhibited by another, the human being is considered not to be free. Autonomy usually refers to

what a person does when they shut out every influence apart from their own reason and recoil

into themselves listening to no one except themselves. When a person is coerced to pursue an

end other than his own reason dictates, he is degraded and is not treated as a human being. In this

case freedom can be said to be obedience, but it is obedience only to a law that I have prescribed

for myself, and since no one can enslave themselves, I am still free while I obey such laws. Thus,

he fully fulfils his purpose as discerned by his rational nature and so not dependent on anything

or anyone; passions or persons (heteronomy), but on themselves (autonomy).56

2.1.3 Freedom and the General Will

Rousseau gives a conception of freedom which is related to his idea of the “general will”. The

“general will” is both a pre-condition for freedom and an embodiment of freedom. Rousseau, for

instance, says that “the constant will of all the members of the state is the general will; it is

through it that they are citizens and free.”57

There is a difficulty here though, and that is, how to

reconcile the social control which the state will seek to enforce and the freedom of individuals

which will require that they are subject to their own will and not that of others. The solution lies

in showing that, the will (general will) by which social control is achieved is no other will but the

individual‟s own will. If the general will is the individual‟s own will, then obeying it would

mean obeying themselves and obedience to none other than themselves is freedom and so they

are free. In effect, social control is an expression of the general will which is same as the

individual‟s true will.

56

Berlin Isaiah, Op. Cit., p 10-12 57

Rousseau, SC 4.2.8.


37

The general will be the will of individual citizens when we consider the “social autonomy”58

model of freedom. This model requires that individuals in the community come to a collective

understanding of what is their common good and affirm it. It also requires that they do not only

recognize and affirm it, but also will it. So, they must discern, affirm and will the common good

for it to be said to be their very own will, and thus free in willing it or submitting to it. The

problem however is that the society may have a general will, but it does not preclude individuals

from having their own will. It is not out of place to suggest that, such will can come into conflict

with the general will, and so in the individual it is important that the general will is also the

dominant will and this can be achieved if the individual has a well-ordered will, in which case

his will is directed by the higher nature which is reason. In this case it is possible for a person not

to be able to discern the general will and yet the general will does not cease to be his or her will,

and being subject to it is still freedom, since it is subjection to none other than their own selves.59

2.1.4 Rousseau’s Freedom and the Concept of Dependence

The whole issue about dependence is critical to understanding Rousseau‟s conception of

freedom. One would suppose that freedom is equal to independence, but with Rousseau that kind

of simplistic equation cannot be upheld, though it seems in some instances that he considered it

so. However, holding this position would create a huge problem because the same Rousseau

considers dependence as essential and inalienable to human existence. He also admits that such

dependence may prove negative in the realization of freedom and yet it does not mean that it

precludes freedom; it can certainly coexist with freedom without a problem. This certainly means

58

Term is from Joshua Cohen, “Reflections on Rousseau: Autonomy and Democracy,” Philosophy and Public

Affairs, 15 (1986); 276-288. 59

Neuhouser Frederick, “Freedom, Dependence and the General Will” in The Philosophical Review, Vol. 102, No. 3.

(July 1993), p 366-372


38

that freedom and independence are not the same and the distinction between the two concepts

must be clearly delineated.

Rousseau‟s idea of independence is closely related to his idea of self-sufficiency and thus related

to the concept of need and how such need is satisfied. When one is independent, one can satisfy

his own needs and can thus be considered as self-sufficient, while one who is unable to satisfy

his or her needs is said to be dependent and not self-sufficient. Dependence has to do with

relying on some resource from outside of a person to satisfy the need of a person. While

Rousseau admits that there are two kinds of dependence; on human beings and on things, it is the

dependence on human beings that especially attracts his primary attention. For Rousseau, the

independent person is the one who “does not need the arm of another to lengthen his own.”60

Very significant to the concept of dependence are two important qualities of needs. First, is the

force with which needs can dictate human action and psychological wellbeing and the second has

to do with the constancy of needs in the sense that they are not fleeting, they cannot easily be

ignored; or just pushed aside as the human being will keep feeling the urge to satisfy them.

Meanwhile, satisfying a need does not mean it is extinguished; they will keep coming back and

require that they keep being satisfied.61

Rousseau identifies two kinds of needs that correspond to two kinds of dependence. The first

kind of need has to do with need for the commodities of life, including food, clothing and shelter

which gives rise to the dependence on things which is economic in nature. The second need is

the need to be acknowledged or loved, as he puts it “to have a position, to be a part, to count for

something.”62

It is a form of self-love which Rousseau calls “Amour-propre” which gives rise to

60

Rousseau J. J., Emile, Translated by Eleanor Worthington, D.C. Heath and Company, Boston, 1889, p 44. 61

Neuhouser Frederick, Op. Cit., p 374-376 62

Rousseau J. J., Emile, Op. Cit.,160


39

a dependence on other persons which is psychological in nature. For Rousseau, both kinds of

needs pose a huge threat to individual freedom. However, he places primacy on amour-proper

for two reasons. Firstly, the satisfaction of that need cannot be without the involvement of others

unlike the satisfaction of the need for commodities. Secondly, even the need for amour-proper

also has some link to economic dependence; especially when the need for some commodities is

to help satisfy the need to be loved and accepted by others. Thus, our biological needs must do

ultimately with our psychological needs.

Unlike dependence, freedom is not defined with recourse to needs. Freedom is the agreement

between the will and action of individuals. Individuals, he says, are free when they “do what

accords with their will”63

or a free person is “one who does his own will”.64

However, he points

out that while this is so, freedom consists more of not being limited or frustrated in pursuing

one‟s will than of just doing what one wills. One may fail to do what one wants because one does

not possess the strength to do so or is even inhibited by laws of nature, not necessarily by other

persons, and so one‟s will here is frustrated, but one‟s freedom is not impaired. For Rousseau,

freedom must necessarily have a moral character and so is properly the “relation between one

will and another: To be unfree is to obey a foreign will, and freedom is always being free of the

will of another.”65

Thus, instead of saying freedom is doing what one wills, we can say that for Rousseau, freedom

is obedience to no other will than one‟s own will. This is where dependence is sure to become an

obstacle to freedom since dependence, firstly, allows for the subjection of the will of one to

another. He says,

63

Rousseau J. J., The Reveries of the Solitary Walker (RSW), Translated by Charles E. Butterwoth, Harper and Row,

1979, 84 64

Rousseau J. J., Emile 84 65

Neuhouser Frederick, Op. Cit., p 381


40

since the bonds of servitude are formed only from the mutual dependence of men and the

reciprocal needs that unite them, it is impossible to enslave a man without first putting

him in a position of being unable to do without another66

In this case Rousseau suggests that dependence is the one condition that ensures enslavement and

thus lack of freedom. Secondly, Rousseau suggests that dependence does not only allow for

subjection of one will to another but also guarantees that such individual wills would not be free

because of the force that unsatisfied needs possess. In so far as independence guarantees freedom

from the subjection to another person‟s will, independence is good. So, independence is not good

nor is dependence bad, but they are good and bad respectively because of how they promote or

are detrimental to the realization of the freedom of the individual. Thus, eliminating dependence

would mean eliminating what makes subjection possible and guarantees it, and in the end

eliminating any form of subjection. In the state of nature, human beings are self-sufficient; self-

sufficiency will mean no dependency, and thus no subjection which means freedom. In the state

of nature, persons obey themselves alone because they are self-sufficient. Such perfect self-

sufficiency which brings about a sort of perfect freedom, if it were even possible, would be at a

great cost. This kind of freedom can be made possible only when there are no attachments to

other people which is practically impossible if such people were to be fully human as they will

have to be without conjugal love, language, virtue, protection and others that are essential to

human existence. Perfect freedom without any form of attachment seems impossible and so

Rousseau must provide a solution that maintains attachments or the inalienable dependence on

human beings and yet does not in any way undermine freedom. He does so by reconstructing

dependence, making dependence and freedom compatible and that can be found in his concept of

the general will.

66

Rousseau J. J., “Discourse on Inequality” (DI), in First and Second Discourses, Translated by Roger D Masters

and Judith R. Masters, St. Martin‟s Press, New York, 1964, 140.


41

Rousseau in the idea of the general will, transforms dependence from dependence on persons to

dependence on the society in general. According to him, “each citizen shall be at the same time

perfectly independent of all his fellow citizens and excessively dependent on the republic.”67

The

big question is about what difference this depersonalising of dependence will make; at best is

this not just a different kind of dependence which brings us to the same problem of subjection?

When Rousseau talks about dependence on the city or the republic, he is talking about

dependence on a well-founded republic that is effectively governed by laws inspired by the

general will. Such laws based on the general will maintain the social order in which dependence

on the society does not impede freedom. In Rousseau‟s view, three characteristics of the law

make this possible. All three do not allow for dependence by establishing equality in several

ways among citizens, because such equality makes freedom possible and not because equality is

valuable. Rousseau himself says that “Law establishes as a right, the natural equality of men”68

2.2 How the Law Establishes Freedom

The first characteristic of the law which establishes freedom by reconstructing dependence has to

do with how it ensures material equality. In this sense it does not eliminate economic dependence

(since there will always be material division of labour) but, rather creates a level playing field for

negotiation so that one does not have to submit to another and be exploited by them before they

satisfy their needs. In this case the laws eliminate the economic classes that may bring about

dependence and then subjection and finally rob the dependant of his freedom. While economic

division of labour is compatible with freedom, economic classes are not. The laws derived from

the general will eliminates such classes and thus fosters freedom.

67

Rousseau J. J., SC 2.12.3 68

Rousseau J.J. Political Economy, 214


42

The second characteristic of the law which Rousseau relies on is its universality. This refers to

the formal equality of individuals before the law. It suggests that the law is no respecter of

persons, or does not discriminate among persons and so everyone stands equal before the law.

The rule of law helps to protect individuals from the fickle wills of others on whom they depend.

Such wills cannot be predicted, and they are highly arbitrary and pose serious threats to the

freedom of those who depend on such an individual since dependence is inalienable. A collection

of such capricious wills will end in collisions that will create chaos. Laws of the state put such

wills in check and avert chaos, while keeping intact the interdependence of individuals. The

universal nature of the law of the rational state can achieve this because it comes from all and is

applied to all; so that even those who interpret the laws are themselves under the law. The part of

these two faces of universality which is popular, has to do with how it applies to all. It makes no

distinctions nor favours any person; the law effectively encourages an equality which fosters

freedom. However, the other bit is important, which suggests that it is imposed by all. This does

not necessarily refer to participation of all individuals in the framing of the laws but more to a

rational consent for all the laws, in which case they own them. As imposed by all, and as

imposed on all, a certain equality is created that fosters freedom.69

The third characteristic of that law which transforms dependence on individuals to dependence

on the state is how it makes the community the source of amour proper which individuals seek.

Law ensures that individuals are respected equally as citizens. This flows also from the

universality of law, but most importantly, it is what the law ensures when a person does not have

to rely on another for some respect, but on the law, which makes it incumbent on another to

respect them simply because they are citizens. In this way the individual is free.

69

Cf.,Neuhouser Frederick, Op. Cit., p 388-390.


43

Rousseau thus reconstructs dependence and makes it dependence on the state rather than

dependence on the individual; such that dependence will not necessarily result in subjection. In

the general will, however, the individual finds not someone‟s will but his own and that of all

others. The general will is the individual‟s true will, even if he fails to recognise it as such.

Freedom from subjection to other people‟s wills and obedience to a law made by the self are two

ways by which the general will guarantees the freedom of individuals, since in both, one only

obeys his own will.

2.3 Freedom and Reason

Berlin suggests that true freedom is a result of the use of reason. When a student comes to

appreciate and understand mathematical truths, theorems and laws using reason and accepts

them, he is not coerced to do so; he accepts those truths or laws in freedom and subjects himself

to them in freedom. These laws are no more external to him. In fact, to want things to be other

than what they really must be is to be irrational or ignorant and all such is heteronomy, as

opposed to being in control; when reason is in charge, which is autonomy. While some may

argue that social life may not easily be understood using physics and mathematical analogies,

such criticism seems to ignore the fact that such principles as are in mathematics and physics

have been very instrumental in making human living easy with the inventions that we have been

blessed with. If they are already immersed in human life in such many vivid ways, why can we

not apply such analogies? Thus, freedom can be obedience, such freedom implies that I imposed

the rules on myself or having understood it, accepted it freely over myself.

The argument then is that, once I use my reason, what is right for me will be the same as what is

right for another who uses his reason. Different rational beings will thus discern the same thing

as right once they employ reason. So, rational States simply are ruled by such laws as every man


44

using reason would have arrived at if they could come up with such laws individually. In the

same way all truth could be discerned by different rational men and accepted by all rational men.

Since two truths cannot logically be incompatible, when two solutions collide, one of them could

be wrong or both could suffer that fate. However, both cannot be right. Since many different

ends may collide and thus bring about lots of chaos, the best solution will be to rely on reason.

Rationality makes it possible to know what things are and what things must be done. Once we

employ reason always, we will not need any form of coercion and yet we will discern and do

what is right and avoid all collision. Reason alone is the faculty that perfectly understands our

true nature and discerns perfectly our true ends. When the will obeys this rational nature of ours,

it obeys in freedom because it obeys itself. So that while everyone employs their reason, we

would rationally come to a common solution, or in the case of society and its sustenance, laws.

Besides, since such laws may be from us, or if not from us, would always be accepted by us

because they are rational, they are not an imposition; and we are truly free in obeying them. The

underlying principle of this position is that our rational ends will necessarily coincide, and if they

do not, then certainly, it is because some are irrational. Freedom is then, for Rousseau, simply

put, liberty to do what is rational and not otherwise, and in so doing a person obeys his true

nature and thus the general will.

Thus far it is suggested that, first, all human beings have one rationally directed purpose which

Rousseau identifies as the general will which is always good and same for all. Secondly, all such

purpose, because it is discerned by a common faculty of man (reason), is common and so can fit

into a harmonious whole. While some human beings immediately have a complete grasp of this,

others do not. Thirdly, any conflict in the purposes discerned by different individuals is because

there is a collision between the rational self of some person(s) and the irrational or insufficiently


45

rational self of others. Fourthly, when all men are rational, they will discern and obey the same

rational laws, which will not differ in each person, and as they obey such laws, they obey none

but themselves because they obey their rational, highest nature and so are wholly free. The

question however is, how then do we handle such wills which will go against the general will?

Can they be coerced, to fall in line? And will that be justified? This among others is what the

next chapter of the thesis will concern itself with.


46

CHAPTER 3

PUNISHMENT AS “BEING FORCED TO BE FREE”

Being free from the constraints of another person‟s will and obeying laws that one has made for

oneself are two conditions that ensure that one obeys one‟s own will and that of no other, in

which case one is free. The general will70

provides an environment for such objective freedom

that does not allow that anyone is subject to the arbitrary will of another. Like the previous

chapter revealed, this objectivity and equality is ensured in the provision of laws that are based

on the general will,a person‟s true will, his constant will which is never wrong. This is ensured in

three ways: the law establishes a significant level of material equality; the law being a product of

all and applying to all ensures that there is equality of citizens before the law: and the law

ensures that the dignity of a person is not dependent on another human being but objectively on

society and most especially on the law. The point is that dependence would usually bring about

subjugation and, thus, take away freedom. With the presence of law, dependence is not a

problem because law makes it possible for humans to be dependent on each other and yet not be

subjugated to each other and are thus free.

It follows from all this that the general will is always in the right and always works for the public

good; but it doesn‟t follow that the people‟s deliberations are always equally correct. “Our will is

always for our own good, but we do not always see what that is; the populace is never corrupted,

70

The general will according to Rousseau is that will which seeks the common good and is supported by all citizens

of good will. It is not necessarily the majority decision but that which seeks the good of the community as a whole.it

is also referred to as the real will(real self/true self) of the individual because Rousseau believes that any individual

of the community who means well for the community will choose that will. This same will is also referred to as the

rational will(rational nature/rational self) because the people of good will in a community discern the general will

(the real will) by the use of reason. Thus, the general will is the same as the real will or real self and the rational will

or rational self.


47

but it is often deceived, and then-but only then-it seems to will something bad.”71

The general

will establishes the freedom of the individual and that of all individuals and that is the true will

of every person though they may not perceive it. If the general will always establish freedom,

then one who wills against the general will, wills not to be free. When a person wills not to be

free, it is not freedom. Most likely it is subordinate or subject to another will or to the lower self,

which is controlled by passions.

The important problem to resolve is how a subject can obey a sovereign and yet by so doing not

be subject to another but to him or herself. Rousseau answers that by explaining how a

distinction cannot be made between the subject and the sovereign is when he says,

“But when the whole people decree for the whole people, it is not looking outside itself, but

considering only itself; and if a relation is then formed, it is not between two separate objects, but

only between two aspects of a single entire object, with no need to split it into two parts. In that

case the matter about which the decree is made is, like the decreeing will, general. This act is what

I call a law.”72

The same person has decreed and is subject to his decree, in which case he is subject to only

himself, which is essentially the meaning of being free for Rousseau.

3.1 The Possibility of not Willing the General Will

The question that is asked is about how „the will‟ always wills right, and how the general will is

the will of the true will of the individual and yet the person is able to will that which is referred

to as wrong or a crime. More so, the general will does not suggest that people forfeit their

individual wills. Is it possible for the individual will to be different from the general will? And

what do we make of that situation when it occurs? In response to these important questions,

Rousseau says,

71

SC 2. 4. 72

SC 2.6.


48

For every individual as a man may have a private will contrary to, or different from, the general

will that he has as a citizen. His private interest may speak with a different voice from that of the

public interest; his absolute and naturally independent existence may make him regard what he

owes to the common cause as a gratuitous contribution, the loss of which would be less painful for

others than the payment is onerous for him; and fancying that the artificial person which constitutes

the state is a mere fictitious entity (since it is not a man), he might seek to enjoy the rights of a

citizen without doing the duties of a subject. The growth of this kind of injustice would bring about

the ruin of the body politic.73

A person has always the general will, and an individual will, and the two can be different and in

fact they can be in conflict. In those cases, the person who makes his individual will override that

of the community‟s, which is the general will, chooses what is wrong and not in accordance with

his true will because that is the general will, and the general will which is rational is always right.

Such a resort to the individual will against the general will, will cause injury or even destruction

to the community.

Hegel, for instance in similar fashion suggests that when a criminal commits a crime, the person

contradicts their true self. The person allows theirwill to go against their implicit, true or real will

(the general will). His or her real will always seeks to obey the laws of the rational state and so

when his or her actual (particular will) will then goes against his real will(general will), his will

is split in two. This split will situation is like the one who knows that smoking is not good for

him and in fact wishes he would not smoke again and yet finds himself continuing the habit. His

real will does not want to smoke, but his actual will (subjected to passions) smokes; he has a split

will. The thief who steals a television because his will desires it for instance, could be said to be

suggesting that property rights be disrespected; yet the thief wills that his or her property rights

be respected, in which case he or she does not really will that property rights should not be

73

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respected (real will); again, there is a split will. The real will is the universal will, which

Rousseau refers to as the general will.74

The split will resultwhen the individual is not able to apprehend his true will well to pursue it, or

when the individual is subjected to his own passions and is so directed by it to do what is

contrary to the true will. This situation results in a person willing against their own true will; and

this is not freedom. To restore the person to freedom, the individual must be “forced” through

some form of punishment to be brought in line. One may refer to it as forced only because it is

against the irrational will. In fact, then, it is not a force because it is only his true will, which in

accordance with the general will, acts against his irrational will. Once it is the person against his

or her own self, it is not wrong and cannot be enslavement or subjugation, and thus he is free.

“When, therefore, the opinion contrary to my will prevails, this proves only that I have made a

mistake, and that what I believed to be the general will was not so. If my opinion had prevailed

against the general will, I should have done something other than what I had willed (rationally),

and then I should not have been free.”75

This suggests that,since the general will cannot err, a

particular opinion can only be right if it is in consonance with the general will. Anytime then that

anopinion deviates from the general will it is wrong and cannot put itself against the general will

as better than the general will. Since the general will always makes a person free, that which is

willed in opposition to the general will would not have been willed in or for freedom.

Rousseau understands that a social pact may not be binding by itself unless it is made so, so he

says, “Hence in order that the social pact shall not be empty formula, it is tacitly implied in the

commitment- which alone can give force to all others - that whoever refuses to obey the general

74

Tunick Mark, Hegel‟s Political Philosophy; Interpreting the practice of legal punishment, Princeton University

Press, New Jersey, 1992, p 29-30. 75

S C 4: 2:8


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will shall be constrained to do so by the whole body, which means nothing other than that he

shall be forced to be free.”76

This is where the law comes in. The law once again is that which

ensures that the social contract and its provisions are kept, and the society is not destroyed, by

“constraining” those who go away from the law to obey it, and as they obey it, they obey only

their rational self and thus are only constrained also by their rational self and thus are free.

3. 2 The Law

Laws, from a Rousseauean perspective, are those decrees which the individual has made for

himself by use of his rational nature and in accordance with the general will “ to join rights to

duties and relate justice to its object”77

On the matter of the law, Rousseau says, “but when the

whole people decrees for the whole people, it is not looking outside itself, but considering only

itself, and if a relation is thus formed, it is not between two separate objects but between two

aspects of a single entire object, with no need to split it into two parts. In which case the matter

about which the decree is made is, like the decreeing will, general. This act is what I call the

law.”78

By this he implies that: firstly, the law is decreed by the whole people, and secondly it is

for the whole people. This makes both the law maker and the subject of the law one and the same

person.

Hegel, in support of Rousseau, suggests that the law does not inhibit our freedom though we

cannot abstract from it, especially because we are at home with them, they are our “second

nature” as he calls it, we accept it to be rational. To renounce the law would be to abstract

against ourselves, that certainly would mean that we are not free. A genuinely free will wills

what is rational and necessary. The point is not to say that willing freely must necessarily be

76

SC 1:7:8 77

SC 2.6 78

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willing the objective content (that which is rational) before me, that would not be freedom.

Willing freely involves rationally accepting that which is objective and making it thus my own.

So, a person‟s will consider all the laws of the state, finds them reasonable upon consideration

and accepts them over himself as his own. Thus, by understanding them as reasonable, we will

them, and in willing them we will what is consistent with our rational nature. “Only the will that

obey the law is free, for it obeys itself and is at home and is free”79

For Rousseau, the power that punishes is the law. The state, the judges, and the law enforcement

agencies are all at the service of the law. Meanwhile, the law is the product of reason which the

criminal owns by rational assent. Thus, the criminal who submits himself to the law submits

himself to no other than himself. When he violates the laws, he violates his own implicit will,

and his own will calls him to order when the law punishes him.

Law is not a mere command. It is only an expression of what reason already dictates to us. So,

we desist from stealing not just because the law says so, but we do not steal because the laws

only express what we all rationally accept is good for us: respect for the property that belongs to

another. Laws are a product of civil association. The populace is subject to the law, and so for

them to maintain their freedom, the law must have its origin from them. In which case those who

form the community are the same ones who work out regulations as laws to control their own

behaviour.80

In support of this point, Rousseau says,

As long as a number of men gathered together regard them-selves as a single body, they have only a

single will, which is concerned with the survival and well-being of all of them. In this case, the state‟s

machinery is all vigorous and simple and its rules clear and luminous; there‟s no tangle of hidden

agendas; the common good is always obvious, and only good sense is needed to perceive it. Peace,

unity and equality are enemies of political subtleties. Simple straightforward men are hard to deceive

because of their simplicity; lures and ingenious excuses don‟t work with them-they aren‟t even subtle

enough to be dupes! When among the world‟s happiest people, we see a group of peasants gathered

79

Hegel G. W., Philosophy of History, Translated by J. Sibree, New York: Dover, 1956, 57 (39) 80

Cf. SC 2.6


52

under an oak to regulate the state‟s affairs, and always acting wisely, can we help scorning the

sophistication of other nations, which put so much skill and so much mystery into making themselves

illustrious and wretched? A state governed like that doesn‟t need many laws; and when new ones are

needed, everyone will see that they are. The first man to propose them is merely putting into words

what they have all been thinking, and there‟s no place here for deals or for eloquence in order to get

passed into law something that each of them has already decided to do as soon as he‟s sure that the rest

will act with him.81

Rousseau suggests from this that laws are from the general will, and since the general will is

always right and always obvious, the law is always right and always obvious when reason and

good sense is at work. Important to the point he is making is that, in fact the laws do not arise

from its promulgation but from its apprehension by reasonable beings who allow their rational

wills to work. So that when it is codified or even promulgated it is not to suggest that it just

began to exist. This is because it has always been obvious to the rational will.

When asked how we can be both free and subject to the laws, it is not a difficulty at all to grasp

this when one realizes that the laws are from the general will and the general will is from us by

rational assent; in which case the laws are the very records of our own wills.82

We are the law

makers and at the same time the law governs us. We are masters over our own selves, not under

anyone, and are indeed free under the law. For the law we have made for ourselves to be

respected and obeyed, it must be seen to “bite”, in which case people must be held responsible

for flouting it. Such responsibility is ensured by attaching punishment to the breaking of the

laws.

81

SC 4.1 82

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3.3 Punishment

When the individual deviates from the general will, which individual came to by undisturbed use

of reason, he is away from his free self and when he is forced to obey the general will he is

forced only to obey his true self and so is only “helped” to come back to his free state. It is

important to consider that for Rousseau the individual is both the sovereign and the citizen at the

same time.83

In which case the individual is the one who makes the laws as the sovereign and the

same individual is the one who is subject to the law. The individual is free only when such is the

case because otherwise, he will be subjected to the will of another (who would have made the

law) and that would certainly mean that he or she is not free, as he will be subjected to the will of

another. When the laws are applied to the individual or he obeys the laws, he obeys none other

than himself or herself, which is freedom. When in such a case the law prescribes a punishment

for a crime and it is administered to him, it is not someone but himself who is prescribing the

punishment. We could say in this case that one‟s true self is prescribing a punishment for one‟s

irrational self, to bring it back to being rational, and by so doing being free.

In fact, it can be said that when one is forced to obey the general will (his true and constant will),

he is forced to do what he would always want if he was not under any form of subjugation. Since

for Rousseau, no one can enslave himself, he is brought back to what reason dictates and is thus

truly free because he is brought back by only himself. This suggests that although the criminal is

a rational being, his act is irrational when he goes against the law, against the general will. When

we say a crime has been committed then, we mean that a rational being has willed irrationally. It

is against the universal will which is implicit in him or her and explicit in criminal law of a

83

Cf. S C 1.7


54

rational state. So, when his rational side forces his irrational side, it is a person forcing him or

herself and so that person is still free.

Rousseau says, “To protect the social compact from being a mere empty formula, therefore, it

silently includes the undertaking that anyone who refuses to obey the general will is to be

compelled to do so by the whole body. This single item in the compact can give power to all the

other items. It means nothing less than that everyone will be forced to be free. It is obvious how

forcing comes into this, but. . . to be free? Yes, because this is the condition which, by giving

each citizen to his country, secures him against all personal dependence, i.e. secures him against

being taken by anyone or anything else. This is the key to the working of the political machine; it

alone legitimizes civil commitments which would otherwise be absurd, tyrannical, and liable to

frightful abuses.”84

This statement suggests that laws become empty when they are not enforced,

so once the laws have been made, they must be enforced, and to keep the subjects of the law in

check the laws must come with punishment that “forces” them to respect the law. This will

maintain order and regard for the law. However, the force is applied by the law, and by extension

the one who made the law, the individual himself who is the sovereign. Thus, the one who made

the law forces the one who is subject to the law to obey them using punishment. Since in this

case the one who makes the law is the same as the one who is subject to the law, then the same

person forces himself to obey the law he has made. This is not a case of subjection and so the

person remains free.

Rousseau says again that, “The (b) government gets from the (a) sovereign the orders it gives to

the (c) people; and for the state to be properly balanced there must be a steady relationship be-

tween the a-to-b relation and the b-to-c relation. If any of these three terms were altered, the

84

SC 1. 7.


55

steady relationship would instantly be destroyed.”85

This distinction and link between roles that

Rousseau gives makes it clear that the government and its agencies are at the service of the

people and the sovereign and not above them. In fact Rousseau goes on to say that “What I have

just said… makes it clear that the act that institutes government is not a contract, but a law; that

the recipients of the executive power are not the people‟s masters, but its officers; that it can set

them up and pull them down when it likes; that for them there is no question of contract, but of

obedience; and that in taking over the functions the state has assigned to them they are only

doing their duty as citizens, without having the any right to challenge the conditions.”86

This is

critical in answering the question, how can a person be punished by another and still be free?

When an arm of government enforces the law and metes out punishment, it is not they who are

punishing but the law, and since the law was made by the same individual who is punished, we

can say that he is punishing himself, in which case he is free; not subjected to the will of anyone.

Hence Rousseau says, “How can a man be both free and forced to conform to wills that are not

his own. How are the opponents at once free and subject to laws they have not agreed to? I reply

that the question is wrongly put. The citizen gives his consent to all the laws, including ones that

are passed against his opposition, and even laws that punish him when he dares to break any law.

The constant will of all the members of the state is the general will; by it, they are citizens and

free.”87

The citizen in moments when his reflection is unimpeded uses his rational will and is

consistent with the general will. When he is forced to be free, it is no other will than the general

will, his rational will which is at work in the law, and so he is free, because he only follows his

own true will, whether it is apparent to him or not. What happens then is that one‟s straying will

85

SC 3.1 86

SC 3.18 87

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56

is brought in line with his true will, his rational will, the general will. While this is no

subordination to any other but the self, this is freedom. Rousseau suggests that that which will

remedy dependence on men which is recipe for lack of freedom is dependence on the law, which

in a rational state is based on the general will.88

The laws must work in such a way that they

militate against dependence on individuals, and citizens must embrace the laws that govern them.

As they embrace them, they embrace what they have made for themselves and are free.

When the law punishes a person, it is forcing the person, not to subject him to another, but to

subject him to the law, which was made by him. Since the law expresses his own rational will,

the general will, and such a will promotes his freedom, the law by punishing him promotes his

freedom. Again, since the law is from the individual himself, he is subjected to no other than

himself and is free. Since freedom is essential to the human nature, and when deprived of it a

man is not human, anything that makes him free also makes him human. So, when he is

punished, and by that, forced to obey his own rational will and made free, he is also made

human. Punishment therefore, makes a person free and truly human and therein lies the

justification for it.

From the argument for a Rousseauean justification for punishment, the following syllogisms are

apparent;

Premise 1 (P 1): One who commits a crime does not act according to their rational nature

Premise 2 (P 2): One who does not act according to his rational nature is not free

Conclusion 1 (C 1): Therefore, one who commits a crime is not free

88

Cf. Emile 85


57

P 1: One who is not free is not human

P 2 (C 1): One who commits a crime is not free

C 2: Therefore, one who commits a crime is not human

P 1: One who obeys their rational nature is free and human

P 2: One who obeys the laws obeys their rational nature

C 3: Therefore, one who obeys the law is free and human

P 1: One who is punished punishes himself in accordance with the law

P 2: One who punishes himself in accordance with the law obeys the law

C4: Therefore, one who is punished obeys the law

P 1(C 3): One who obeys the law is free and human

P 2 (C 4): One who is punished obeys the law

C 5: Therefore, one who is punished is free and human


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CHAPTER 4

A COMPARATIVE ANALYSIS OF ROUSSEAU’S THEORY ANDOTHER

MAJOR THEORIES OF JUSTIFICATION FOR PUNISHMENT

The previous chapter attempted a Rousseauean argument to justify punishment, suggesting that

when a person is punished, that person imposes the punishment on his or her own self. The thesis

goes further to suggest that, when a person imposes a punishment on himself or herself the

person does so in freedom, and the one punishing is not different from the one who is punished,

and so there is no subjugation to the will of another. Thus, punishment does not curtail a person‟s

freedom, it rather promotes it as the person once punished, moves from having a split will in

which their actual will conflicts with their real will (the general will), to one who has their actual

will aligned to their general will. Considering that the general will is right always and the real

will of the individual which promotes freedom, brings the individual to conform to the general

will (his real will) and makes him or her free and human. This chapter will consider a

comparison which puts the Rousseauean justification side by side with other traditional theories

and attempts to show that the Rousseauean theory builds on and improves upon the other

theories in some ways and thus provides a better alternative.

4.1 Rousseau’s and the Retributivist Theories

The retributive justification for punishment is backward-looking because it always goes back to

the crime that is committed to justify the institution of punishment. The desert-based

retributivism for instance suggests that because of the crime a person has committed, people

have both the right and the duty to punish them, and maybe even look back at the enormity of

what they have done to measure out a punishment that will commensurate that. Whether it is


59

about the justification or about the distribution of punishment, the desert-based retributivism,

always goes back to the crime committed and so is said to be backward-looking. Likewise, the

forfeiture-based retributivism says that when a person commits a crime which violates the rights

of another person, people should have a look at the crime the person committed, and by

extension the rights violated, and consider that the criminal must be punished, with the forfeiture

of that same right, an individual violated. Debt-based retributivism also suggests that people

should refer to the offense committed and realise that the criminal has caused some loss to the

one offended and so owes a debt in the form of punishment which commensurate with the debt

that is owed to the offended. Again, this is another of the many variants of the retributivist theory

of justifying punishment and they all go back to the crime to justify the punishment as well as

determine the measure of punishment to mete out.

The Rousseauean justification for punishment is also backward-looking in nature, because it

considers the fact that a crime has been committed before a punishment can be dispensed.It will

not condone any deprivation of a right or the infliction of a pain without the existence of a crime

committed by the one at the mercy of a punishment. Until a crime has been committed, in both

the Retributivist and the Rousseauean case, punishment is not prescribed to anyone, so

punishment is so to say, a response to a crime that has been committed. And since that response

always comes after the crime has been committed, both theories can be said to be backward-

looking.

For some, this is an essential feature of all forms of justification, to the extent that even the

utilitarian justification for punishment which is “supposed to be forward-looking”, has been

accused of also being backward-looking, though most proponents of the utilitarian justification

for punishment are loath to admit it. The argument is that before the consequences of a


60

punishment for a crime will be considered under this theory a crime must have been committed

by a person to necessitate a discussion about what the consequences of the punishment for such a

crime would be. In each of the cases, the crime is considered in justifying or even in determining

the measurement of punishment to be meted out, which is a backward-looking approach,

essential to punishment, since crime is always essential to punishment. Without considering the

existence of a crime before inflicting some pain, one would be accused of abusing a person‟s

right.

Unlike the retributivist theory which deals with both the justification and the distribution of

punishment because of the nature of the justification it puts forth, the Rousseauean justification

gladly limits itself only to the justification bit, so that it manages to avoid the various criticisms

levelled against the retributivist theory, because of the distribution undertones that it possesses.

For instance, desert-based justification proposes that those who commit a crime must suffer same

fate as their victims suffered because of the crime they committed. The forfeiture-based

retributivism also suggests that when a person commits a crime, he or she violates the rights of

another and forfeits that same or equal right for him or her, leading some of such proponents to

suggest “an eye for an eye”. These justifications certainly have distributive undertones and that

allows for people to criticise for instance that, giving to the criminal what he has meted out to the

other will lead to some controversial consequences or punishments such as raping the rapist and

robbing the robber. Such criticisms lead proponents of the retributivist position to also propose

proportionality and not exactness in punishment, which would receive further criticism about

how to measure what is proportional and how proportionality could lead to over punishing or

under punishing once it is not doling out that which is the same. All this is avoided when there is

a justification for punishment which does not confound itself, at least not immediately, with the


61

further duty of distribution, and that is what the Rousseauean justification does. The

Rousseauean justification, limits itself to justifying the institution of punishment without, at least

immediately, concerning itself with how punishment should be served. While the retributivists

solution proposes “why punishment is justified” it also has undertones of “how it should be

distributed”, with the latter allowing room for criticisms. The Rousseauean justification,

however, immediately talks about and handles only the “why punishment is justified” and does

not open itself to criticisms about the “how it must be distributed” on the face of it.

It is important to note that, the other theories of Justification for punishment which also have

clear undertones of how they propose that punishment should be distributed, have an advantage

in that area over the Rousseauean justification. While this thesis is not concerned with “how

punishment should be distributed” and supports the notion that the “how” and the “why” of

punishment can be answered separately, it would not be out of place if further study would

attempt to discover “how punishment should be distributed” based on the Rousseauean

justification. This could either end up in arriving at a “how” that is unique to the Rousseauean

“why”, or a “how” from any of the known theories of justification for punishment being

combined with the “why” of the Rousseauean Justification.

4.2 Rousseau’s and the Utilitarian Theories

The utilitarian justification for punishment is said to be forward-looking because in justifying

punishment it looks beyond the crime that is committed and instead considers the benefits that

accrue from the punishment. In this case, the utilitarian suggests that, it is right to punish a

person because the punishment would bring about the greatest benefit for the greatest number of

people, or there is no alternative measure, save punishment, which would have resulted in a

better consequence than the proposed punishment. Because it looks beyond the present into the


62

future, and into the benefits that most probably will arise in the future, general or specific

deterrence especially, as it is mostly regarded as forward-looking. In this regard then, it is

possible to talk about the Rousseauean justification of punishment as also being forward-looking

because it has as a main aim, restoring the person who by his crime has lost his freedom, to being

human again. Since the Rousseauean justification also looks forward to a benefit in the future,

we can say that this justification for punishment is also forward-looking because it tends towards

the future.

One should recognise, however, that despite the similarity between the Utilitarian and the

Rousseauean justification for punishment, there is also identifiable uniqueness in each. Just like

the retributivist theory, the utilitarian theory also has undertones that have direct implications on

the distribution of punishment and that makes it susceptible to arguments against the

recommendation it seems to make when it comes to the issue of the distribution of punishment.

There is the issue of harming one person in order that it may influence someone else in the future

(general deterrence). This is where there will be the problem of travelling across persons, since it

holds one criminal responsible so that another person may not repeat a similar crime in the

future. This is morally unacceptable because it violates principles of fairness and treats the

human being to an end or just some object for achieving social control.89

Again a theory that

does not concern itself with the distribution of punishment like the Rousseauean justification for

punishment avoids such criticism. The Rousseauean justification limits itself to “why

punishment is justified” and does not immediately concern itself with the how it should be

distributed. Also. while the Rousseauean Justification for punishment may in the long run

promote the common good or benefit future generations, the criticism of travelling across

89

Cf. Finkelstein Claire Oakes, “Punishment as Contract” (2011), faculty Scholarship, Paper 995,

http://scholarship.law.upenn.edu/faculty_scholarship/995, p 328.


http://scholarship.law.upenn.edu/faculty_scholarship/995

63

persons does not apply to the Rousseauean justification because unlike the utilitarian justification

which has social control, common good and the good of future generations as its primary aim,

the Rousseauean justification has the primary aim of bringing the offender back in line with the

common good and making the offender free and human.

Again, the justification that is offered by the utilitarian theory seems not to have anything to

offer as benefit to individual offenders. It focuses only on the social impact of the punishment

overall of society, whether the deterrence is general or specific in nature. It virtually has nothing

to say about some good outcome for the offender who is at the centre of the whole subject of

punishment. The Rousseauean justification, however, makes it clear that everything revolves

around the offender. The offender is a member of the community and so is part of legislation,

and subject to the law. Even when he has broken the law, the offender is punished not for anyone

else but for himself, to restore him to his original nature as free and as human.

The Rousseauean justification does not suffer the popular criticism against the utilitarian theory

which suggests that the utilitarian theory may lend itself to punishing the innocent. The

Rousseauean justification advocates bringing back one who has strayed from the general will and

has done what is wrong according to the law which is drawn from the general will. Thus, unless

a person has done wrong or committed a crime which is against the law, a person cannot be

punished. One who has not strayed from the line cannot be “brought back in line”. There is no

room for punishing the innocent because he has not lost his freedom in need of its restoration.

4.3 Rousseau’s and the Hybrid Theories

Having suggested that the Rousseauean justification is both forward-looking and backward-

looking, one would suggest that it is the same as the other theories considered earlier. That

indeed would not be a correct assessment of the Rousseauean justification for punishment


64

because in other ways the Rousseauean is also unlike the ones considered earlier. It is like the

retributivist justification for punishment because it looks backwards to a crime, but is also unlike

it because it also looks forward to making a person free. One can also say that it is like the

utilitarian theory because it looks forward to making the person free, but it also looks back,

always to a crime, before punishment is meted out or even justified. So, putting the new theory

against those two extremes one can see that this theory has the advantage of both looking

backwards and forward at the same time, which the proponents of those two traditional theories

do not accept for any of them individually.

The other justification for punishment had to do with the hybrid theories like that of Rawls which

seems to combine both the retributive and utilitarian theories. Rawls suggests that there is no

confusion when the two theories are put together since both talk about or handle the same thing

from two complementing perspectives. The Rawlsian theory suggests that while legislators are

utilitarian in their approach, the judiciary and other law enforcement agencies apply the laws

made by the legislators using a retributivist approach. To the extent, that the Rousseauean

justification for punishment looks both forward and backward, one can say that it is also like

these hybrid theories. The Rousseauean justification for punishment looks forward to making

people, who by their crime have lost their freedom and humanity, and looks backwards to a

crime before it ever attempts punishment or a justification for punishment. Thus, like the hybrid

theories, it is also both forward and backward looking.

The argument could be made that the Rousseauean justification of punishment is exactly like one

of the hybrid theories, which may be true, but it is not the same as anyone of them. While most

of the hybrid theories are both forward-looking and backward-looking at the same time, which is

also characteristic of this Rousseauean theory, the latter is also inward-looking to the extent that


65

the foundation of the theory is the nature of the human being; what makes one human, and his

nature as free. One can say then that the Rousseauean justification has three dimensions instead

of two. It is backward-looking like almost every theory, whether admittedly or not, but also

forward-looking and then distinctively it is also inward-looking because at the centre of it all is

the Freedom of Man as that which makes a man and as that which is true to his nature, what he is

from within.

4.4 Further Uniqueness of the Rousseauean Justification

Because punishment takes away a right and/or inflicts pain, it is presumed by some to be morally

unjustifiable in any way. However, the Rousseauean justification which is contractarian provides

a more acceptable basis for justification because it provides a consensual foundation for the

institution of punishment. Individuals would by rational assent have agreed to the terms of future

violations by them or against them by another. Each individual willingly submits themselves to

the punishment for their own good especially; and in so doing each individual by rational assent

both considers what one stands to gain when others obey the laws and are deterred by such

punishment and what one stands to lose when he or she also does same and thus creates a moral

equivalence between crime and punishment.90

In the Rousseauean justification, there is benefit

that accrues not only to the society but also to the individual offender and even allows them to

consent to and be owners of whatever institution that punishes them.

Unique to the Rousseauean justification for punishment is its extolling of the freedom of the

human being. This Rousseauean theory of justification places the human being who is an

offender and his freedom, which is essential to his or her character as a human being, above all

else. While other theories of rehabilitation for instance also focuses on the offender, it is the

90

Cf. Ibid, p 336.


66

Rousseauean justification which zooms in on his freedom above all else as the core basis for

justification of punishment. Therefore, it is considered as inward-looking; it considers what the

essential character of a human being (freedom) and makes that the basis for the justification of

punishment.

The Rousseauean justification for punishment also attempts to reconfigure punishment. The

Rousseauean justification navigates this end of reconfiguring punishment by arguing that instead

of considering it as that which curtails or constrains, it should be considered as that which rather

liberates.

Unique to the Rousseauean theory is the promotion of the re-integration of the offender and not

on the assignment of blame or retribution or in some other cases the benefits that accrues to the

society. This theory is socially oriented and recognises that the offender is a member of the

community who has only gone wayward. It also stresses that such a wayward offender must be

brought back to the ways of the community, thus reintegrated into the community.

The quest to justify punishment as an institution has come far and occasioned many responses.

The Rousseauean justification, although unique, is not altogether new since it possesses features

that resemble some theories of justification which precede it. The Rousseauean justification,

however, being contractual and focusing to a considerable extent on the offender and his or her

good, advocating for and pursuing the freedom of offenders as the main reason to punish them,

gives a different twist that may not have been considered by many, and offers a justification that

seems an improvement over the ones that precede it.


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CHAPTER 5

CONCLUSION

This thesis has concentrated on developing a justification for punishment that does not

necessarily compete for supremacy with the others that already exist. This theory is based on the

ideas of Jean Jacques Rousseau and it attempts to build upon what is already in existence to give

one more resilient justification for punishment. It seems to have incorporated the strengths of the

traditionally proposed justifications and averts most of the criticisms levelled against those

justifications.

The Rousseauean justification acknowledges that human being by nature is free. Such freedom

when taken away from people demeans them. The problem is that most theorists suggest that

punishment deprives a man of his freedom. If that is the case, one can say that punishment is evil

and makes a person inhuman. In fact, the very fact that punishment inflicts pain on the criminal

and/or deprives a person of some right begs justification. It, first, inflicts pain or deprives rights

and that is unacceptable without justification. Secondly, it does not inflict pain or deprive rights

to everyone, suggesting that it discriminates between offenders and non-offenders so that those

who are offenders are the ones who are inflicted with some punishment. Without a just cause,

this is also unacceptable. There have been various attempts to justify the institution of

punishment, including that retributivist theories like that of philosophers like Kant, the utilitarian

theories like that of Mill, and the hybrid theories like that of Rawls which suggest that the two

earlier theories can be combined without contradiction. This thesis, however, explores an area

that has hardly been given any attention and yet has some great prospects regarding this agenda


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of providing a justification for punishment. This thesis proposes a contractarian approach to

justifying punishment, with Rousseau‟s ideas as reference point.

The Rousseauean justification for punishment is based on the idea of the general will, man‟s true

will, which is always right, and rational. Because the general will is always right, when man‟s

actions are in consonance with the general will, he does what is right. However, the individual is

not always able to will what is right, which means that the individual sometimes wills differently

from the general will. This suggests that apart from the general will, there is the individual will

which does not always agree with the general will. When the individual wills differently from the

general will, he does what is wrong. In this case one can say that the person has a split will- the

real will, that is the general will which is never wrong on the one hand, and his actual will which

is under the influence of another person‟s will or his or her own passions which does what is

wrong, on the other hand. Such subjugation whether to another person‟s will or to the

individual‟s own passions, is not freedom.

When actions are inspired by the rational self, which is not under the control of another person or

under the control of his passions, what is done will agree with the general will and so it will be

what is right and will be done in freedom. On the other hand, when the will is controlled by

another‟s will or by passions, Rousseau suggests, the person is not free. The situation where

one‟s will deviates from the general will makes it possible for a person with reason to go against

what reason would normally dictate, being the general will, and the general will is always good

and in the best interest of all. The split will situation is what makes crime possible, because the

will, not directed by reason but under some influence from within (passions) or without

(another‟s will) brings about a split self. The true self opts for what is dictated by reason. When a


69

person acts under some other influence other than reason, he or she is not free, and thus not

human because freedom is essential to human nature.

The law is what reason formulates in tandem with the general will to control that which strays

from the general will, which is doing what is wrong. Such laws of a rational state are from the

individual, especially by rational assent because that is what reason would always choose when

unimpeded by some influence. The laws are thus products of the individuals themselves to check

their will, so that their will do not stray, and leave them in some form of subjugation which is

bondage. When such laws are appreciated by men and codified, men do not make something

new, they only codify what has always been reasonable and thus in accordance with the general

will.

Punishment then is when a person who has committed a crime, and so has deviated from his real

self, is forced by the law to come back to his true self, obeying his rational self, and thus obeying

the general will. The use of force here is not subjugation because it is his true self, or rational

nature which forces his deviated self to come back in line with the general will. Once it is

obedience to the rational self it is not subjugation; it is freedom. Since the individual is the

sovereign who makes the law, and the citizen who is under the law, when he is punished by the

law that has made himself for himself, he punishes himself. This cannot be considered as forced

by another and thus the person who is punished in the rational state, punishes himself in freedom.

He is truly free, firstly because the punishment is meted out to him by only himself. And

secondly, such punishment is meant to align him with his true will, the general will, and free him

from being subjected to the will of another or to his or her own passions. The law enforcement

agencies do not punish, they are at the service of the law. It is the individual who is the sovereign

who punishes. Once the individual is freed from any form of subjugation and is directed by


70

reason, he who had become a slave to another person‟s will or to their own passions, becomes

free. So, punishment makes a person free and thus human. Herein lays the justification of the

institution of punishment. Punishment is what a people do to themselves to free them from

subjugation and to align them with the general will.

The Rousseauean Justification implies that punishment should do well to the offender; it should

restore the individual‟s freedom. This will be a point that supports rehabilitation in order that a

person may restore themselves to their former state. The good of the offender is at the centre of

this and it must look towards character reformation. In this case, it is a step in the right direction

that the Parliament of Ghana is presently considering a Bill, “NON-CUSTODIAL

SENTENCING [CRIMINAL OFFENCES] BILL, 2018”, drawn up in 2018, it focuses on non-

custodial sentences to be passed into law. This Bill seeks to propose alternative measures and

sanctions for offenders who have committed a crime with the aim of rehabilitation. The emphasis

here is on “restorative justice”, and for the purposes of the Rousseauean justification, this would

be a restoration to freedom focusing on the offender, which is different from what we know

traditionally of restorative justice focusing on the victim. The bill also seeks to reduce, as much

as possible, prison sentencing and instead promote non-custodial sentencing and social

integration, which, for the purposes of the Rousseauean justification, would be a return to

consistency with the general will.

Punishment, then, is not a pain to endure but a privilege that the offender should claim as a right.

Since it is for the criminal‟s good that he or she is punished, such good must not be denied the

moral agent who has committed some offence. In fact, this suggests that if the criminal is not

punished, their right has been denied them, which is unacceptable. The object of punishment is

that the criminal will be reformed so that they may become rational again acting in accordance


71

with the general will and not under any form of subjection. It would therefore be

counterproductive for a person to wish or try to elude the grasp of the law because they do not

want to be punished. People who have done wrong should come forward for their punishment

knowing that such punishment is for their own good. The difficulty, however, may arise when

the offender does not consider such an unpleasant experience called punishment as a good thing

that makes him free and human. A further study may look at how to get offenders to realize that

punishment is for their own good and a right which they must subject themselves to.

Punishing the offender may be considered as causing pain unintentionally and so justifiably like

the dentist who pulls out a decayed tooth; he or she intends well for his or her patient but

unintentionally causes them pain, and this is same in the case of the law and the law enforcement

agencies that enforce the law.

The law enforcement agencies also have a duty to enforce punishment just as it is the right of the

criminal to receive it. It is thus a grave wrong and a wrong against humanity when law

enforcement agencies connive with criminals to help them elude the grasp of the law just

because there is some pain that comes with the punishment to be meted out. Such an action does

no good to the criminal because he or she continues in their subjugation either to the will of

another or to their own passions. This makes them remain unfree and thus not truly human since

freedom is essential to human nature.

The next implication is that no one person can make laws for everyone. The law must be from

the whole community, made by individuals as the sovereign and then enforced on the same

individuals as subjects. In this case then, democratic and other forms of governments who only

employ and apply the laws made are consistent with the Rousseauean justification of

punishment. Same cannot, however, be said of monarchs who make regulations by their whims;


72

such may not be called law in the proper sense once we go by the Rousseauean justification in

this thesis. Their punishments may not also be considered as justified by the Rousseauean

justification.

Another implication is that punishment must have as its focus, reintegrating the criminal into the

society. This will suggests that punishment must be corrective and rehabilitative since the

offender must be brought back to live in his community as a reformed person. This means that

punishing a person for the purposes of just inflicting pain without looking forward to

rehabilitation and reintegration is not the preoccupation of the Rousseauean theory. Here, both

the betterment of the offender and the society are sought for at the same time.

The Rousseauean justification as put forth in this thesis does not propose to end the discussion on

the justification for punishment. It attempts to show the positive side of punishment for the

offender and to elude some of the criticisms levelled against many of the theories of justifying

punishment. It is important to note that this theory cannot entirely reject all others because as

reflected on in chapter 4, it largely picks up from and resembles many of the traditional and

hybrid theories for justifying punishment in many ways, while still maintaining its contractarian

character. The Rousseauean justification, however, opens for greater exploration of a

contractarian approach to a better justification for punishment, all things being equal, would

mean a better appreciation of the institution of punishment, a more widespread acceptance of it,

since it does not constrain but rather makes the offender free, and possibly a better way of

distributing punishment.


73

REFERENCES

Benn S. I., “An approach to the problems of punishment” in Philosophy, Vol 33, No. 127,

Cambridge University Press, 1958, accessed from www.jstor.org on 12-01-2018,

P 325-341.

Berlin Isaiah, “Two Concepts of Liberty” inLiberty: Incorporating Four Essays on liberty, edited

by Henry Hardy, Oxford university press, Oxford, [1958] 2002, p 166-217.

Boonin David, The Problem of Punishment, Cambridge University Press, New York, 2008.

Brooks Thom, “Corlett on Kant, Hegel and Retribution”, in Philosophy, Vol 76, No. 298,

Cambridge University Press, 2001, accessed from www.jstor.org on 21-04-2018,

p 561-580.

Brooks Thom, Punishment, Routledge, London, 2012.

Dubber D. Markus, “Citizenship and Penal Law” in The Criminal Law review: An International

and Interdisciplinary Journal, Vol. 13, No. 2, University of California Press, 2010,

accessed from www.jstor.org, P 190-215.

Duff Antony, Punishment, communication and Community, Oxford University Press, New York,

2003.

Fletchtheim Osip K., “Hegel and the Problem of Punishment” in Journal of the History of Ideas,

Vol. 8, No. 3, University of Pennsylvania Press, 1947, accessed from

www.jstor.org on 21-04-2018, p 293-308.

Finnis John, “The restoration of Retribution”, in Analysis, Vol. 32, No. 4, 1972.






74

Finkelstein Oakes Claire, “Punishment as contract” in Penn Law: legal Scholarship Repository,

2011, p 319-340.

Finkelstein Claire Oakes, “Punishment as Contract” (2011), faculty Scholarship, Paper 995,

http://scholarship.law.upenn.edu/faculty_scholarship/995.

Feinberg Joel, et. al. (Ed.), Philosophy of Law, Wadsworth Publishing Company, California,

1991.

Hart H. L. A, Punishment and Responsibility, (2nd

Edition), Oxford University Press, New York,

2008.

Hegel G. W., Philosophy of History, Translated by J. Sibree, New York: Dover, 1956

Hegel G. W., Werke, Suhrkamp, 1986, 20:307

Honderich Ted, Punishment, Pluto Press, 2006, accessed from www.jstor.org, on 21/04/2018.

Kant Immanuel, Metaphysics of Morals, Rojer J. Sullivan (Translator), Mary Gregor (ed.),

Cambridge University Press, (1797) 1996.

Kant Immanuel, Philosophy of Law, Translated by W. Hastie, Clark, Edinburg, 1887.

Kershner Stephen, “A defence of retributivism” in International Journal of Applied Philosophy,

Vol. 14, No. 1, p 97-111.

Lessnoff Michael, “Two Justifications of Punishment” in The Philosophical Quarterly(1950-),

Vol 21, No.83, Oxford University Press, 1971, accessed from www.jstor.org

on 12-01-2018, p 141-148.


http://scholarship.law.upenn.edu/faculty_scholarship/995



75

Lewis. H. D., “Freedom and Authority in Rousseau” in Philosophy, Vol 53, No. 205 (July 1978),

Cambridge university Press, Accessed on 17-03-2017.

Mensah- Bonsu Henrietta J. A., Criminal Law Series; the General Part of Criminal Law- A

Ghanaian Casebook, Vol 1, Black Mask Ltd, Accra, 2001.

McTaggart J. Ellis, “Hegel‟s Theory of Punishment” in International Journal of ethics, Vol 6,

No. 4, (July 1896), accessed from www.jstor.org on 15-12-2017, p 479-502.

Mill J. S., On Liberty, Enhanced Media, Los Angelis, 2016

Moore Michael S., “The Moral Worth of Retribution” in Murphy, ed., Punishment and

rehabilitation, (3rd

Edition), 1987, p 94-130.

Morris Herbert, “Persons and Punishment” in The Monist, Vol. 52, 1968, p 475-501.

Neuhouser Frederick, “Freedom, Dependence, and the General Will”, in the Philosophical

Review, Vol. 102, No. 3. (July 1993), Cornell University Press, New York,

2006, accessed on March 2017, from http://www.jstor.org/.

Nino C. S., “A consensual theory of punishment” in Simmons et. al., eds., Punishment, 1983

Primoratz Igor, “Punishment as language”, in Philosophy, Vol. 64., p 187- 205.

Primoratz Igor, Justifying Legal Punishment, Atlantic Highlands, New Jersey, 1989.

Rawls John, “Punishment” in Joel Feinberg et a. Philosophy of Law, 4th

Edition, Wadsworth

Publishing Company, California, 1991, p 651-655.

Rousseau J. J., “Discourse on Inequality” (DI), in First and Second Discourses, Translated by Roger D

Masters and Judith R. Masters, St. Martin‟s Press, New York, 1964




76

Rousseau J. J., Emile, Translated by Eleanor Worthington, D.C. Heath and Company, Boston,

1889.

Rousseau J.J.,A Discourse on Political Economy, 1755, International relations and Security

Network; Primary Resources in International affairs (PRIA), from

www.isn.ethz.ch

Rousseau J. J., The Reveries of the Solitary Walker (RSW), Translated by Charles E. Butterwoth,

Harper and Row, 1979.

RousseauJ.J.,The Social Contract, edited by Jonathan Bennett, 2010, accessed from

www.earlymoderntexts.com.

Sartre Jean-Paul, “ Man is condemned to be free” from the lecture, Existentialism is a Humanism

(1946), translated by Philip Mairet (1948), accessed from

http://wmpeople.wm.edu/asset/index/cvance/sartre, on 23/02/19.

Tunick Mark, Hegel‟s Political Philosophy; Interpreting the practice of legal punishment,

Princeton University Press, New Jersey, 1992


http://www.earlymoderntexts.com/

http://wmpeople.wm.edu/asset/index/cvance/sartre

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