Moral Pluralism and the Complexity of Punishment The Penal Philosophy of H.L.A. Hart
This book advances a new interpretation of Hart’s penal philosophy. Positioning itself in opposition to current interpretations, the book argues that Hart does not defend a mixed theory of punishment, nor a rule utilitarian theory of punishment, nor a liberal form of utilitarianism, nor a goal/constraint approach. Rather, it is argued, his penal philosophy is based on his moral pluralism, which comprises two aspects: value pluralism and pluralism with respect to forms of moral reason. It is held that this means, on the one hand, that criminal law has an irreducible complexity due to the compromises it makes to accommodate competing values, and on the other hand, that there need not be one single justification of punishment. This original interpretation is not based only on Hart’s key volume on the subject Punishment and Responsibility, but on a careful reading of his complete works. The book will be a valuable resource for academics and researchers interested in Hart’s philosophy, the philosophy of law and criminal law.
I. A mixed theory of punishment?
II. A form of rule utilitarianism?
III. A liberal form of utilitarianism?
IV. A goal/constraint approach?
1. Desert scepticism
2. An oversimplified interpretation
1 The foundations of Hart’s master idea
I. The distinction of issues
II. Value pluralism
1. Berlin’s value pluralism
2. Hart’s value pluralism
3. Value pluralism and the question of distribution
III. Pluralism about forms of moral reason
1. Nagel and the “fragmentation of value”
2. Hart’s pluralism about forms of moral reason
3. Pluralism about forms of moral reason and the question of justification
IV. The problem of moral conflicts
1. Back to Aristotle
2. Hart and judicial virtues
V. Hart’s anti-reductivist stance
2 The definition of punishment
I. Hart’s definition of standard punishment
1. Hart’s reflections on definitions
2. The origins of Hart’s definition
3. Quinton’s subterfuge
4. Rawls’ logical argument
II. A revision of Hart’s definition
1. Must punishment involve consequences normally considered unpleasant?
2. Must punishment be for an offence against legal rules?
3. Must punishment be of an actual or supposed offender for their offence?
4. Must punishment be intentionally administered by human beings other than the offender?
5. Must punishment be imposed and administered by an authority constituted by a legal system against which the offence is committed?
6. The expressive objection
III. Conceptual distinctions
1. The act of punishing versus the practice of punishing
2. The practice of legal punishment versus the penal system
3. Legal punishment versus criminal law
4. Punishment versus threats
5. Punishment versus taxes
6. Punishment versus measures
3 The justification of punishment
I. A clarification of the question of justification
1. A normative issue
2. What does it mean to justify?
3. Punishment on trial
4. The burden of justification
II. The Benthamian justification
1. From Bentham to Hart
2. Is punishment a lesser evil?
3. Is punishment a necessary evil?
III. The right-based justification
1. Retributive justifications
2. Expressive justifications
3. Right-based justifications
4 Criminal responsibility
I. The origin of Hart’s rule of responsibility
II. The meaning of Hart’s rule of responsibility
1. The perpetrator of an illegal act
2. Capacities: the key to exemptions
3. Fair opportunity: the key to excuses
4. Necessity: the key to justifications
5. Conclusion (with a remark on mental disorder)
III. The justification of Hart’s rule of responsibility
1. Hart’s criticism of the utilitarian justification
2. Hart’s pluralist justification
IV. Determinism and Hart’s rule of responsibility
1. What is determinism?
I. Hart’s principles regarding the quality/quantity of punishment
1. Ordinal proportionality: maximum penalties should be proportional
2. Humanity: no one shall be subjected to inhuman or degrading punishment
3. Equality of treatment: treat like cases alike and different cases differently
4. Individualization: sentences should be individualized without exceeding the maximum penalty
II. The justification of Hart’s principles regarding the quality/ quantity of punishment
1. The justification of ordinal proportionality
2. The justification of humanity
3. The justification of equality of treatment
4. The justification of individualization
6 The Hart/Wootton debate
I. Identifying offenders
II. Dealing with offenders
III. Wootton’s arguments
IV. Hart’s objections