A forfeiture theory of punishment

Abstract

The thesis of this dissertation is that it is morally justified to punish offenders. Why does the moral justification of punishment become an issue for discussion? Why does the intellectual tussle on this issue never stop since the age of Plato? That is because it is prima facie wrong to inflict sufferings on others intentionally, and punishment involves those sufferings. Therefore, when theorists intend to justify that it is not always wrong to inflict intentional sufferings on others such as in the circumstance of punishment, they should at least prove that the prima facie wrongfulness in punishment is not wrong all things considered. In other words, they should prove that it is morally permissible to inflict sufferings on offenders intentionally. The justification given for this dissertation is that offenders have forfeited their rights against intentional sufferings when punishments are imposed on them. The theory of right forfeiture in this dissertation is based on the reciprocal principle according to which having rights entails having duties to respect the same rights of others. When offenders fail to respect their victims’ rights by committing offences, they will forfeit their corresponding rights, and other persons are no longer bound by the duties correlated with the rights that are forfeited by offenders. Therefore, it is morally permissible to inflict sufferings on offenders intentionally. In order to defend the forfeiture theory against standard objections, this dissertation incorporates two ideas and builds up the arguments for the defense. One is unforfeitable right, and another is self-regarding duty. Unforfeitable rights are some rights that offenders continue to have though they violate those rights of others. Self-regarding duties are some duties that are owed to duty-bearers themselves. Since offenders have unforfeitable rights, and punishers have self-regarding duties, it is not always permissible to repeat the same sufferings in punishment as how offenders treat their victims. Forfeiture theory is not lex talionis. Although the major argument in this dissertation is retributive, it avoids the main defect of retributivism. Besides providing answer for the main controversy about whether it is permissible to punish offenders given that inflicting intentional sufferings on others is prima facie wrong, any comprehensive moral theory of punishment should also answer two other research questions. Why is it impermissible for citizens to punish offenders individually? In other words, why does the state authority have an exclusive right to punish offenders? For instance, it is only permissible for the state authority to incarcerate rapists, and individuals are not allowed to do so. Moreover, why does the state authority have a duty to punish offenders? This dissertation’s answer to the former question is that individuals have transferred their right to punish via the social contract with the state authority. This dissertation’s answer to the latter question is that the duty to punish is required by the justification of the political legitimacy. As a result, my moral theory of punishment is structured by three components – the justification of the moral right to punish based on forfeiture theory, the justification of the exclusive right to punish, and the justification of the duty to punish.