Posted by: captainfalcon | December 24, 2012

Punishment and Desert

David Boonin makes a nifty argument in The Problem of Punishment to the conclusion that legal punishment — which Boonin defines as the state-authorized intentional infliction of harm  on offenders for reprobative purposes *– cannot be justified by the thought that offenders deserve punishment.

The argument runs as follows.  Imagine there’s only one kidney and five people who need transplants.  Four of the five are villains; one is a saint.  Imagine, further, that the saint clearly deserves the kidney.  E.g., assume (1) that, ceteris paribus, saints deserve medical treatment more than villains do; and (2) that things are ceteris paribus, i.e. there are no countervailing  facts such as that one of the villains was promised the kidney, etc.  It does not follow that the saint may be forced to undergo a kidney transplant.  If he refuses to undergo the transplant, for example, then the transplant may not be imposed on him.

The lesson is that the fact that A deserves x does not entail that x may be imposed on A.  Thus, the fact that an offender deserves punishment (if, indeed, he does) does not entail that the offender may be punished.  Something extra — e.g. the forfeiture by the offender of his right not to be punished — is needed.  (A response — deserving punishment and deserving rewards are not structurally similar kinds of desert — is ad hoc.)

* A weakness of Boonin’s book is its conception of legal punishment, which imposes too heavy a burden on those who would defend the practice (to show that it is defensible for every offense).



  1. A slightly less ad-hoc response would be to note the principle that “you should respect people’s wish to get a worse outcome than they deserve.” Thus you may not force the kidney patient to undergo a transplant, but you may lock criminals away.

    That said, it gives rise to issues of its own. For example, if on told that he was sentenced to life in prison an offender replied “I’d rather die,” you’d have to kill him or let him go.

    An alternative response would be to try to remove his distinction between deserving x and imposing x – argue that in his “Saint” hypothetical, while the saint might deserve to be given the kidney if he wanted it, he is also deserving of not having a kidney forced on him. Thus, the saint’s personal wishes in that case impact what he deserves; there is not a case where someone deserves x but should not be given x.

  2. I think the only plausible explanation why A should respect B’s wish to get a worse outcome than he deserves (likewise why a saint deserves not to have things forced on him) is that B (in some circumstances) has a right against having the outcome he deserves imposed on him. So the punishment theorist who wants to justify punishment on the ground that it is deserved still needs “something extra” for his justification to work. It doesn’t need to be a rights-forfeiture theory — he could say that people only have rights against the imposition of deserved-benefits — but the crux of his explanation why an offender’s deserving punishment justifies its imposition will be an explanation why the right against the imposition of deserved-outcomes extends only to deserved-benefits.

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