The institution of punishment invites a number of philosophical queries. Sometimes the question is: How do we know that inflicting discomfort and disadvantage is indeed punishment? This is a critical question, for example, in cases of deportation or disbarment proceedings. Classifying the sanction as punishment triggers application of the Sixth Amendment and its procedural guarantees. In other situations the question might be: Why do we punish? What is the purpose of making people suffer? In this context, we encounter the familiar debates about the conflicting appeal of retribution, general deterrence, special deterrence, and rehabilitation.
In this article I wish to pose a different sort of question: What is punishment imposed for? When those convicted of crime are punished properly, I assume that they are being punished for something. Yet it is not clear what this "something" is. In tort cases, we ordinarily say that compensation is paid for the injury suffered by the plaintiff. Note that this connection between the injury and compensation holds regardless of the purpose one advocates for tort liability. Even those who subscribe to the programs for promoting efficient behavior would not say that compensation is paid for the efficient consequences of imposing liability. Compensation can be paid only for something that has already happened.
Criminal Law | Law | Law and Philosophy
Center for Law and Philosophy
Center on Global Governance
George P. Fletcher,
What is Punishment Imposed For?,
J. Contemp. Legal Issues
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1067