Yuan 1

Max Yuan

Seamus Murphy

Philosophy

April 17, 2020

In Defense of the Unjustifiability of Legal Punishment

Introduction

Under the system of jurisdiction, no matter from today's viewpoint or the past's

viewpoint, the legal implementations, precisely legal punishments are plausibly essential and

well-justified in terms of maintaining the stability of a society and preserving the properties and

rights of people. The legal punishment is in its existence nowadays and throughout history,

which has its value and practicability. However, speaking from the theoretical perspective, the

legal punishment is not valid and could not be justified, and it would be proven by appealing to

political authority and human rights; and in this sense, there are better versions of legal

implementations in response to crimes and infringements, which would be proven by

utilitarianism and practice of rehabilitation. Therefore, the thesis is that even though legal

punishments are expedient ways to restrict crime and promote the boom of society, they are still

intrinsically and theoretically unjustifiable.

Arguments

Political authority validity

We may assume that only justified laws should be abided by people. Legal

punishment is a form of the execution of the law. If the law system as a whole is not
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justified, then indeed, the legal punishment could not be justified. In contrary, if the

legislative institution, or the state behind it, could acquire the necessary political

authority, then the exertion of its power is justified, or rather, is de jure. If the people do

not give explicit consent to the government, then the existence and exertion of power

over the people by the government are necessarily de facto, which is not truly politically

authoritative. Thus, we could say that consent is an integral component of the political

authority of the state and the law. While the basis of this theory could be attacked by

saying that, the consent is not necessarily the basis of political authority, or the consent is

superfluous to a certain degree that the political authority could be acquired by other

means and not only by consent.

Counterargument #1:

Dissenting arguments could be either of the Hume's two arguments which against

the consent theory of political obligation. For instance, dissidents would argue that "no

modern state can be said to be based on the express consent of its citizens to be

governed"; and therefore "modern society can be said to be based on the consent of the

governed" (Hume). A cogent example of this argument could be the "waking up on the

boat" scenario, in which people are not informed sufficiently to make a decision, or they

are not capable to "leave the boat." This tacit consent could be seen as not voluntary and

not informed, therefore it is not a legitimate consent. While there are still some states that

could be said to have the political authority to govern their people; therefore, the consent

may not be the fundamental proviso for political authority.

Response to counterargument #1
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However, the dissenting theory assumes that there are states which have political

authority exist nowadays. While this very assumption is doubtful: we know that there are

de jure states, if not nowadays, and de facto states exist. Therefore, the states nowadays

could all fall into the de-facto category, in which their governing is a fact which may not

be justified. Therefore, the counterargument would be invalid since its premise is

problematic. Plus, the tacit consent is also a kind of de facto agreement to the political

authority, but not de jure. Thus, even there are politically authoritative states exist

nowadays, their political authority is not based on the de jure consent, which is explicit

and justified. Hence, we could argue that explicit consent is still the fundamental proviso

for political authority.

Counterargument #2

From Hume's second argument, which claims that the "appealing to the social

contract is superfluous" because the lawbreakers "act against the interests of and

necessities of human society" (Hume). Thus, we do not need consent, either tacitly or

explicitly, to confer political authority to the law and the state.

Response to counterargument #2

This counterargument may seem plausible, while actually, it is unreliable. We

would say that the "society" itself is a collaborative organization under the social

contract. For example, the Leviathan proposed by Hobbes, in which "through the

collective renunciation of the individual rights and freedom that one has in the State of

Nature, and the transfer of these rights to the collective body, a new 'person,' as it were, is

formed" (Friend). Therefore, the "interests of and necessities of human society" are
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inherently one of the concerning topics under the social contract theory since they are

topics in the societal category. Hence, we could confidently say that the counterargument

is invalid since acting against "interests of and necessities of human society" is also a

subsidiary topic to the social contract. Therefore, the social contract, namely consent, is

still essential to prove the political authority of the law. So without the consent, we could

still say that the laws are theoretically not justified, though they are expedient, or de

facto, means to regulate people's actions.

Human rights and basic liberty

We have mentioned the incentive of forming and entering into society is that

people want to give up part of their freedom in exchange for the stability and the security.

Since individuals build the society, all of whom have the same goal of attaining "the

enjoyment of their properties in peace and safety, and the great instrument and means of

that being the laws established in that society" (Locke). Human rights and basic liberty

would be two of the most critical elements in people's property. We should say that the

law itself is the mightiest means to ensure safety and regulate misconducts in society.

However, to any extent, any form or degree of legal punishment is damaging basic

liberties and human rights of the criminal. For example, capital punishment is an extreme

example which deprives the criminal's life, let alone her human rights and liberty. To a

lesser degree, life imprisonment also hurts people's basic liberty because their free will of

action is deprived. Therefore, if the individuals, which are the most critical component in

a society, is hurt and depressed by the institution they formed; or the procedure of legal

punishment hurts their properties so-called, the structure of society would be unstable or
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even dissolved. From this perspective, the legal punishments are inherently and

theoretically unjustified.

Counterargument

The cancellation of legal punishment would lead to more significant problems and

harm more people, which is an even more severe offense of other social members' human

rights and benefits. For example, if murder does not receive life imprisonment or even the

death penalty, he could keep conducting homicide or other crimes without an appropriate

containment of his actions. The most straightforward consequence would be that more

people killed, and more chaos in the society. On the other hand, the lack of legal

punishment, which means the lack of authority of the government over its people, would

lead to the loss of credibility of the whole society. Then, crimes and misconducts would

be unscrupulously conducted without control. Thus, society would fall into an even more

dangerous situation.

Response to counterargument

The disagreement with legal punishment does not necessarily mean that the legal

consequences should be eliminated. There are better ways of legal restriction which could

not only restrict crimes but also preserve human rights and liberty to a better degree than

legal punishment. For instance, rehabilitation could be a more advanced way of legal

restriction. In rehabilitation, people's human rights and basic liberty would not be

harmed, or at least not to the same awful degree as legal punishments. Criminal does not

have to undertake the negative effect of being a lawbreaker; instead, they could get

benefits from rehabilitation like how to be a more eligible social member and how to be a
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more considerate person. Even with rehabilitation, the loss of human rights and basic

liberty may still be a problem. However, the problem would be a much smaller one than

in the case of legal punishment.

Utilitarianism

The legal punishment also could not be justified from the utilitarianism viewpoint.

In utilitarianism, we state that "morally right action is the action that produces the most

good" (Driver). To clarify the misconception possibly mingles with the egoism, we

define the utilitarianism from a consequentialist point of view: "On the utilitarian view

one ought to maximize the overall good — that is, consider the good of others as well as

one's own good" (Driver).

From a utilitarianism viewpoint, legal punishment is a waste of social goods and a

failure to maximize the utility, no matter of the public or the individual. For example, jail

is a complete waste of social resources. Jails are built for life imprisonment, which is an

infringement of human rights and basic liberty I have mentioned before. Though the

building of jail could be an expedient way to control crimes and contain lawbreakers, the

effectiveness is the downside. For instance, generally speaking, the region which has

most jails, also in the meantime has most crimes. Though the correlation does not imply

causation, however, we still cannot object that the amount of jails does not contribute to

the high crime rate at all.

On the other hand, a better way of legal restriction, rehabilitation, could be a more

effective alternative to legal punishment like life imprisonment. The utilitarianism says

that the benefit should not only for the individual but also for the whole society.
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Therefore, we could make those lawbreakers do, for instance, community service. In

community service, criminals' freedom is mostly preserved, while social welfare gets

promoted in the meantime. Thus, rehabilitation is a more effective way of confronting

crimes contrary to life imprisonment, which not only deteriorates a criminal's mental

health but also costs a lot to build.

Hence, legal punishment is not justified from the utilitarianism perspective.

Conclusion:

In conclusion, we state that legal punishment is not justified theoretically, though it could

be an expedient means for crime regulation and maintain social stability.

By proving that the legal punishment is not justified from three distinctive perspectives:

the legal punishment's political authority, the human rights and basic liberty of criminals under

the legal punishment, and the utility of implementing legal punishment from the utilitarianism

aspect, the thesis is logically and philosophically established.

In the first argument, it proves that consent is the essential requirement to ensure political

authority. While citizens could not give explicit consent to the government, either because they

are not informed, or because of their lack of capability to decide to "jump off the boat."

Therefore, the political authority is not given to legal punishment and the state behind it. Thus, it

is not justified to exert legal punishment.

In the second argument, it states that the human rights and basic liberty of the lawbreaker

are harmed or even deprived by legal punishment. However, the very existence of society is

based on a fact that every social member's property, in this case, human rights and basic liberty,
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should be protected. Therefore, the legal punishment is not justified because it goes against the

fundamental prerequisite of society.

In the third argument, which based on the utilitarianism point of view, it states that the

implementation of legal punishment is a failure to achieve the maximum utility. Moreover, legal

punishment could be replaced by rehabilitation, which is a more effective way to regulate crimes

and promote social boom. Thus, legal punishment also could not be justified from the

utilitarianism perspective.

In the future, I found that rehabilitative punishment will be more beneficial than

traditional legal punishment such as life imprisonment or death penalty. Rehabilitative

punishment such as community service can better help the criminals to realize their faults in

committing crimes. Criminals will be more morally influenced and improved through such

activities. Other than that, community service is also beneficial for the whole society, therefore

yields more benefit than paying lots of money to build jails and putting people in prison.

Hence, the unjustifiability of legal punishment is established and reinforced through all

the arguments above.

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Works Cited

Hume, David. "Two Arguments." canvas.cmu.edu. Carnegie Mellon University. Accessed on

March 8, 2020.

Friend, Celeste. "Social Contract Theory." iep.utm.edu. Internet Encyclopedia of Philosophy.

Accessed on March 8, 2020.

Locke, John. "Second Treatise of Government." canvas.cmu.edu. Carnegie Mellon University.

Accessed on March 8, 2020.

Driver, Julia. "The History of Utilitarianism." plato.stanford.edu. Stanford Encyclopedia of

Philosophy. First published on March 27, 2009. Accessed on March 8, 2020.