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A Critique of the Paternalistic Theories of Correction

Published online by Cambridge University Press:  09 June 2015

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Extract

Recently, in the American literature concerning the justification of civic correction, two views have been presented in defence of paternalism as a proper basis for punishing wrongdoers. The first of these was introduced in Herbert Morris’s paper “A Paternalistic Theory of Punishment” and the second in Jean Hampton’s “The Moral Education Theory of Punishment”. Both views are strongly opposed to the therapeutic, or rehabilitative, theories of correction, and both stress the personal autonomy of human beings and aspects of punishment which are supposed to respect that autonomy. The opposition to the ideology of therapy is mainly based on its inherent paternalism which is both deleterious and wrongful as far as autonomy is concerned.

Type
Research Article
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1991

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References

My thanks are due to John Calton, Lecturer in English, University of Helsinki, for kindly revising the language of the paper.

1. Morris, H.A Paternalistic Theory of Punishment”, (1981) 18 American Phil. Quarterly 263.Google Scholar

2. Hampton, J.The Moral Education Theory of Punishment” (1984) 13 Phil. & Pub. Aff. 208.Google Scholar

3. Russell, B. Roads to Freedom (London: George Allen and Unwin Ltd., 1918), at 135.Google Scholar — quoted from Morris, H.Criminal Psychodynamics” (1956)Google Scholar 47 Journal of Criminal Law and Criminology 6 — quoted from Morris, supra, note 1 at 481 n.

4. Karpman, B.Criminal Psychodynamics” (1956)Google Scholar47 Journal of Criminal Law and Criminology 6 — quoted from Morris, supra, note 1 at 481 n.

5. Bonger, W. An Introduction to Criminology (London: 1936), at 7576.Google Scholar Bonger, W. Criminality and Economic Conditions (Boston: 1916) 436 and 402 – quoted fromGoogle Scholar Murphy, J.G.Marxism and Retribution” (1973)Google Scholar 2 Phil. & Pub. Aff. 217 at 235 and 236.

6. Morris, supra, note 3 at 477-80.

7. Ibid. at 480–82.

8. Ibid. at 482–85.

9. Ibid. at 488.

10. Ibid. at 487.

11. See, e.g., Morris, supra, note 1 at 264; Hampton, supra at 214-15 and 222.

12. Morris, supra note 1 at 264.

13. Ibid. at 268.

14. Ibid. at 265.

15. Ibid..

16. Ibid. at 270–71.

17. Hampton,supra note 2 at 208–09 n.

18. Ibid. at 211-12.

19. Ibid. at 212.

20. Ibid.

21. Ibid. at 237.

22. The varieties of paternalism are discussed in detail in, e.g., Kleinig, J. Paternalism (Manchester: Manchester University Press, 1983) andGoogle Scholar Feinberg, J. Harm to Self (New York and Oxford: Oxford University Press, 1986). The following classification, however, is developed inGoogle Scholar Häyry, H. The Limits of Medical Paternalism (London: Routledge, forthcoming).CrossRefGoogle Scholar

23. For a defence of the existence of this kind of paternalism, see, e.g., Fotion, N.Paternalism” (1979) 89 Ethics.Google Scholar

24. These four categories of legitimate paternalism were originally presented in Ten, C.L.Paternalism and Morality” (1971) 13 Ratio 56.Google Scholar

25. Morris, supra, note 1 at 265.

26. Ibid. at 268–69.

27. Hampton, supra, note 2 at 213. The passage on “waywardness” was cited in §4 above.

28. Ibid. at 218ff.

29. Ibid. at 219.

30. Ibid. at 209 n.

31. Hampton, ibid. at 231 seems to accept this alternative, and she puts forward two ad hoc arguments to mitigate the effects of the choice: first, even though the offender will not be benefitted, other people presumably will, through the deterrent effect of the threat of punishment; and second, since the authorities do not know who the “losers ” (i.e. the ones who will not benefit) are, they must still try to benefit each and every offender. These arguments are, however, highly illegitimate within Hampton’s view, since, firstly, she considers elsewhere in the paper ibid, at 214 deterrence as an immoral and unacceptable way of “using” the offender as a means for benefitting other people; and secondly, the argument from ignorance could equally well be turned the other way around — if the authorities do not know whose autonomy they are going to violate by their “educative message” they should perhaps not send it to anybody.

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