Punishment

The Enlightenment's contribution to both the philosophical justifications of punishment and to concrete penal reforms cannot be underestimated. Voltaire (1694–1778), Charles-Louis Secondat, baron de Montesquieu (1689–1755), Jeremy Bentham (1748–1832), and others challenged both the penal practices of the day and their justifications. These reformers were strongly consequentialist in orientation. "All punishment is mischief," according to Bentham's famous dictum, and could be admitted only on the basis of its future utility. The only just reason for punishment is to protect society lawfully by preventing future crime rather than to seek retribution or display the overwhelming power of the king. They argued that punishment must only result from violations of civil law, not of religious edicts, and that crime must be distinguished from sin. Voltaire condemned punishment for violations of religious ceremony or dogma, sarcastically calling them "local crimes" as opposed to acts universally condemned. They also criticized the lighter punishments meted out to the aristocracy and the arbitrary sentences handed out by judges with overly wide discretion. Violent but irregular punishments were not helpful and, as Montesquieu noted, witnesses to such ceremonies become inured to the sight. To be effective, they argued, punishment must be swift and must not be arbitrary. This requires that legislatures clearly define criminal law rather than allowing judges wide discretion—a point that was central to Bentham's peneology.

Most of these reform proposals are collected in a slim, influential treatise by the Italian jurist Cesare Beccaria (1738–1794), On Crimes and Punishments (1764). Beccaria condemned the secrecy of criminal justice and demanded an end to the use of judicial torture. However, his most famous proposal was to abolish the death penalty. He argued that not only is capital punishment ineffective as a deterrent but that it cannot have been agreed to as part of an original social contract. Thus, while the purpose of punishment may be the protection of the society, there are limits to how far that protection can extend.

Enlightened reformers moved away from corporal punishment, seeking to design a penal system that would make punishment more useful, edifying the prisoner while simultaneously repairing the damage the prisoner had inflicted upon society. Central to these plans were work and imprisonment. Work was a common corrective technique, and many reformers believed the regularity and discipline of labor would lead to the moral rejuvenation of the wrongdoer while serving social needs at the same time. During the late eighteenth and early nineteenth centuries, distinctions between the prison and the work-house were cloudy, and prisons were often structured akin to factories. Other potential penalties could include transportation, sending convicts to work in overseas plantations as indentured servants for the duration of their sentence.

If retributivist theories did not disappear under the weight of the eighteenth century's legal reforms, neither were retributivists unaffected by the Enlightenment's powerful critique of traditional practices and justifications for punishment. Immanuel Kant (1724–1804), the Enlightenment's greatest retributivist, criticizes Beccaria as overly compassionate toward humanity. Punishment must relate only to the crime, he argued, and cannot be concerned with any other extraneous goals, such as reform or deterrence, for such utilitarian goals treat persons as mere things. Yet neither must punishment serve the emotional satisfaction of the injured; punishment must neither be passionate nor unpredictable, neither overly humane nor desirous of revenge. Kant did not justify his full embrace of the lex talionis as a controlled form of revenge but rather as a dispassionate principle of universality and equality. Thus his theory of punishment seeks fairness not only for the victim or for society but for the perpetrator of the crime as well.

For Kant, the lex talionis served not only to justify punishment but also as a guide to proper proportionality. The punishment must resemble the crime itself; not only retribution but similarity is required. For example, murder can only be punished through the death penalty and Kant dismissed Beccaria's critique of capital punishment as mere "sophistry and juristic trickery." Nevertheless, Kant still argued that a mother guilty of killing her illegitimate child should be excused from the death penalty on the grounds that the law has not recognized the birth and thus the mother stands in a "state of nature" in relation to her child. As this example suggest, Kant's theory of punishment is not simply the juridical translation of his moral theory. His complex reworking of the tradition of the talionis continues to have difficulties in separating from the ideal of revenge, yet despite these difficulties—or perhaps because of them—Kant's theory of just punishment featured strongly in the revival or redistribution in the United States and Britain during the 1980s.

Georg Wilhelm Friedrich Hegel (1770–1831), on the other hand, was a retributivist who rejected the lex talionis and considered punishment a right of the criminal. Crime, he argued, is an affront to the very structure of legality and criminals have metaphorically torn the mask of legal personality from both their victims and themselves, revealing the naked contingency of the law. Punishment "annuls" the crime by re-asserting the proper status of both parties as legal subjects. Thus punishment is a right of the criminal as much as of the victim (which does not mean that the criminal desires it). In a reflection of Plato, Hegel viewed punishment as a form of education, in which the criminal is taught how to behave in a manner worthy of his status as a person.