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Punitive intent

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Abstract

Most punishment theorists seem to accept the following claim: punishment is intended to harm the punishee. A significant minority of punishment theorists reject the claim, though. I defend the claim from objections, focusing mostly on recent objections that haven’t gotten much attention. My objective is to reinforce the already strong case for the intentions claim. I first clarify what advocates of the intentions claim mean by it and state the standard argument for it. Then I critically discuss a wide variety of objections to the claim and to the standard argument for it.

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Notes

  1. For examples of advocates of this thesis, a critical overview of traditional defenses of it, and a novel defense of it that assumes the intentions claim see Hanna (forthcoming). I won’t give a more comprehensive defense of the thesis and nothing that I’ll say will depend on its truth. For all that I’ll say, it may even turn out that the most defensible version of the intentions claim doesn’t support the thesis.

  2. I say some of those involved because some cases suggest that punishment is possible even when some of the key people involved in inflicting it don’t intend harm (see, e.g., Zimmerman 2011: 19–21). Note that the intentions claim is consistent with different views about who must intend harm and how they must be involved. I won’t take a stand on these issues.

  3. Cf. Berman (2012: 142–143), Boonin (2008: 12–15), Duff (2015: 36), Hanna (forthcoming: 3), Honderich (1969: 1), Hoskins (2019: 46–51), Husak (2011: 1189), Lee (2019: 363–4), McCloskey (1962: 323), Ten (1987: 15), Wasserstrom (1982: 476), Zimmerman (2011: 9–10).

  4. Kolber seems to think that these considerations show that the intentions claim is either false or needs important qualifications. I don’t think that even the latter is true, for reasons that will become clear.

  5. Ristroph’s paper has an especially informative discussion of abuses that can be facilitated by judicial reliance on the intentions claim.

  6. Wringe uses a case to press this objection, but the case runs a couple of different objections together. I’ve disentangled them and will consider a version of the other one (as pressed by someone else) in Sect. 8. My argument in this section is adapted from my argument in Hanna (2020: 93–94).

  7. Duff and Hoskins (2017) reject the intentions claim on the grounds that punishment doesn’t have to be intended to be intrinsically bad for the punishee. The above shows why this is mistaken. Harm theorists generally agree that we can be harmed by being deprived of things that are intrinsically good for us (e.g., Bradley, 390: 401, Hanser, 2008: 428). One can intend harm by intending to deprive someone of such things.

  8. If we want to say that the state itself punishes people, Ristroph’s remarks might be a problem for the following claim: X punishes Y only if X intends to harm Y. But advocates of the intentions claim aren’t committed to either claim.

  9. My arguments in this section draw on my arguments in Hanna (2020: 94–96).

  10. For a discussion of animal punishment see Garthoff (2020).

  11. Hart (2008: 4–6) calls cases like the punishment of children by their parents “sub-standard” cases of punishment, but he takes them to be genuine punishments. All he means is that these aren’t the sorts of punishments that the traditional philosophical debate about punishment’s justifiability is about. To simplify: that debate is about state punishments that satisfy requirements of due process in just legal systems.

  12. For the classic defense of the claim that punishment has an expressive function see Feinberg (1965). Other advocates include Boonin (2008: 21–23), Husak (2011: 1182), Nathan (forthcoming), Wringe (2013, 2019), and Zimmerman (2011: 16–18). For an argument against the claim see Lee (2019).

  13. Thanks to a referee here.

  14. Note that I can also modify the case to accommodate differing intuitions about the relevance of certain features. To illustrate, some readers may think that this isn’t a case of punishment because certain disapproving attitudes haven’t been communicated to the defendant or because he might not know that he’s being punished. I disagree, but can just stipulate that the officials have privately communicated these things to him. My case shouldn’t be dismissed on such grounds without checking whether I can modify it in this way.

  15. Brooklyn 99, season 6, episode 13, “The Bimbo.” The scene can be viewed here: https://www.youtube.com/watch?v=qBwvAyktLDg.

  16. For another account that omits the intentions claim and that emphasizes punishment’s alleged expressive dimension see Wringe (2013, 2019). Critics argue that its conditions can be satisfied in cases of non-punishment, e.g., Hanna (2020), Lee (2019). For an expressive account that isn’t obviously vulnerable to these objections see Tasioulas’s account below.

  17. Wringe (2013: 863, 866) approvingly cites the account for omitting the intentions claim. Some of my criticisms of the account echo Hoskins’s criticisms of it (2019: 45–51). What I say about it applies to similar accounts, e.g., those of Bedau and Kelly (2015), Brooks (2012: 1–2), Cholbi (2010: 3), and Hasnas (2017: 17).

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Acknowledgements

Thanks to a referee for helpful comments.

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Correspondence to Nathan Hanna.

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Hanna, N. Punitive intent. Philos Stud 179, 655–669 (2022). https://doi.org/10.1007/s11098-021-01675-4

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