Ancient and modern approaches to the question of punishment : Hobbes, Kant and Plato




Shuster, Arthur

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The modern criminal justice system is experiencing what may be called a moral crisis brought about by a fundamental disagreement regarding the just and humane treatment of criminals and the purpose of punishment. This crisis has been addressed by contemporary scholarship without much success. The most serious defect of these scholarly attempts has been a failure to grasp how the apparently clashing aims of punishment—deterrence, retribution, and rehabilitation—relate to the fundamental principles of modern politics. Without this knowledge, it is impossible to begin to understand how these different penal aims may today be compatible and how incompatible, or even to appreciate what is at stake in each of them. In order to gain a firmer grip on the problem, this dissertation returns to the original arguments for modern punishment by examining crucial moments in its theoretical development. In Hobbes, modern punishment theory attains its first and most consistent articulation. Hobbes shows that the principles of modern politics limit the scope of justice to the protection of private freedom and property, and thus necessitate that deterrence should be the dominant aim of punishment. In his reaction against Hobbes, Kant affirms the importance of human dignity and argues that a penal system of pure deterrence would threaten the humanity of the criminal. Kant presents retribution as a more noble aim of punishment and tries to defend it on modern grounds, although he ultimately fails in this task. In light of the aporetic conclusion of the examination of modern punishment theory, this dissertation turns to investigate the classical approach to the question of punishment as it is expressed in the proposal for humane penal reform in Plato’s 'Laws.' In the 'Laws,' the highest aim of punishment, as the city understands it, is shown to be moral rehabilitation, although retribution and deterrence are also incorporated into the city’s actual penal code as a concession to necessity and to the limitations of the thumotic civic outlook. The most humanizing feature of the penal reform proposal in the 'Laws' is, however, its philosophical analysis of the nature of crime.




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