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Utilitarianism, Justice and Punishment: Comments on Smart and Flew

Published online by Cambridge University Press:  16 February 2016

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Extract

Perhaps the greatest attraction of the utilitarian view of punishment presented so forcefully in Smart's paper is its empirical character. This empirical, scientific approach to social and moral problems typical of utilitarianism is made possible by its monistic nature: by its claim to have found in consequences of actions the principle of a uniform interpretation of all the various moral concepts, rules, ideals, a universal moral currency in which all the pros and cons of any moral issue that might arise can be cashed. This moral monism is seen by utilitarians as one of the main advantages of their theory; but it is also a source of some of its most persistent troubles. For whereas some moral notions may lend themselves to utilitarian interpretation, some others seem resistant to it.

Type
Theories of Punishment
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1991

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References

1 Smart, J. J. C., “Utilitarianism and Punishment” in this issue, at p. 360Google Scholar.

2 Flew, Antony, “Retrospect and Prospect, Retribution and Deterrence” in this issue, at p. 376Google Scholar.

3 Bentham, J., The Theory of Legislation, trans. from the French of Dumont, E. by Hildreth, R. (London, Trübner, 1876) 76Google Scholar.

4 Bentham, J., An Introduction to the Principles of Morals and Legislation, ed. by Harrison, W. (Oxford, Blackwell, 1960) 240, n. 1Google Scholar.

5 Smart, J. J. C., “Utilitarianism and Criminal Justice”, Bulletin of the Australian Society of Legal Philosophy (Special Issue, 1981) 6Google Scholar.

6 Smart, J. J. C., “Utilitarianism and Justice” (1978) 5 J. of Chinese PhilosophyCrossRefGoogle Scholar; “Distributive Justice and Utilitarianism”, in Arthur, J. and Shaw, W. H., eds., Justice and Economic Distribution (Englewood Cliffs, Prentice-Hall, 1978)Google Scholar.

7 See my Utilitarianism and Self-Sacrifice of the Innocent” (1978) 38 AnalysisGoogle Scholar.

8 Kleinig, J., “Punishment and Moral Seriousness”, in this issue, at p. 401Google Scholar.

9 Dennett, D., ed., The Philosophical Lexicon (Newark, American Philosophical Association, 8th ed., 1987) 14Google Scholar.

10 I discuss this line of utilitarian argument in greater detail in The Judge as a Prole“ (1988) 74 Archiv für Rechts- und SozialphilosophieGoogle Scholar.

11 Mabbott, J. D., “Punishment”, in Acton, H. B., ed., The Philosophy of Punishment (London, Macmillan, 1969) 44.Google ScholarCf. A. Flew, “The Justification of Punishment”, ibid., at 97-98; J. D. Mabbott, “Professor Flew on Punishment”, ibid., at 128-129.

12 Mackie, J. L., “Morality and Retributive Emotions” (1982) 1 Criminal Justice Ethics 4CrossRefGoogle Scholar.

13 See my “The Middle Way in the Philosophy of Punishment”, in Gavison, R., ed., Issues in Contemporary Legal Philosophy: The Influence of H. L. A Hart (Oxford, Oxford U. P., 1987) 209211Google Scholar.