Why Punish?
| Published date | 01 November 1990 |
| Date | 01 November 1990 |
| DOI | http://doi.org/10.1111/j.1468-2230.1990.tb01847.x |
| Author | David Nelken |
REVIEW ARTICLE
Why
Punish?
David
Nelken
*
N.
Lacey,
State Punishment, Political Principles and Community Values,
London and
New York: Routledge, 1988,
222
pp, hb
S25.00.
B.
M.
Hutter,
The Reasonable Arm of the Law? The Law Enforcement Procedures
of Environmental Health Officers,
Oxford: Clarendon, 1988,
240
pp, hb
f25.00.
Nicola Lacey
’s
discussion of the justifications for punishment and Bridget Hutter’s
description of the work of environmental health officers each represents a clearly argued
and valuable contribution to the study of criminal justice. Both writers offer a careful
and reasonably comprehensive analysis
of
the previous literature in their subjects but also
advance new programmes of research. Lacey argues strongly for a revival of a communi-.
tarian approach to punishment. Hutter reaches the not unrelated conclusion that what is
needed is
a
re-evaluation of the relationship between the legal mandate of environmental
health legislation and the way enforcement officers interpret
the
moral and popular support
for their work. But whilst the claims
of
both writers will need to be given proper considera-
tion they also help to illustrate the somewhat constricting boundaries of the disciplinary
traditions within which their arguments are constructed.
Lacey begins by defining punishment formally for the purposes of her discussion as
‘the principled infliction by a state-constituted institution of what are generally regarded
as unpleasant consequences upon individuals or groups, adjudicated, in accordance with
publicly and legally recognised criteria, correctly applied, to have breached the law, as
a response
to
that breach, as an enforcement of the law and where that response is not
inflicted solely as a means of providing compensation for the harm caused by the offence’
She explains that her working definition is intended to be neutral between backward
and forward-looking justifications of punishment (although this does not stop her later
criticising some utilitarian approaches for justifying more than could be included in her
definition). But by the end of the book Lacey has come to recommend what she calls a
‘functional’ conception of punishment which analyses it in terms of its significance for
citizens and the development and coherence of the community to which they belong.
Punishment is useful because
of
its social meaning as well as its social consequences and
it is and should be at the centre of the political life of the community.
On the way to this conclusion Lacey takes us on a systematic tour of the so-called
‘traditional’ justifications of punishment. The summaries she provides are clear and
analytically sharp even if much of the ground is well-trodden by now. With regard to
backward-looking justifications such as retribution, Lacey argues that blameworthiness
is a necessary but not sufficient criterion for punishment. She is also critical of the claim
that punishment
can
be
justified on the presumption of implied consent on
the
part of citizens,
and points to the vacuousness of the argument that it restores the moral equilibrium. She
asserts that backward-looking justifications do not really succeed in telling us how much
to punish. On the other hand, forward-looking arguments, focusing on deterrence and
rehabilitation, are suspect because of their tendency to treat offenders as means rather
than ends.
As
justifications for punishment they are empirically insecure, may seek to
(pp 11-12).
*Visiting Professor, University College London.
The
Modern
Lnw
Review
53:6
November
1990
0026-7961
829
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