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Most people agree on the necessity of having some kind of system of justice and laws which protect individual rights and property. But how did this system develope? In order to find this out philosophers have often imagined a totally primitive society with no common law and no common power where people live their lives according to their desires, passions and instincts; in short, they are in as natural a state as possible. What made them start to respect other people's lives and possessions and to punish those who did not do so?
Christians have traditionally believed that the basic moral laws were given to us by God; as Dostojevski said, <*> . Some people believe this happened through divine revelations, some people hold a view that God gave us conscience, the ability to distinguish between good and evil. On the Judgement Day God will punish those who have done against his will and reward his followers. The problem for me with this "heavenly law" is that it cannot be rationally justified (which is of course a criterion that needs not to be accepted by everyone). Many people claim to have had revelations; whose visions are the true ones coming from God? Should we believe the man who killed his own son a few years ago because God told him to do so? Besides it might take a long time before the Judgement Day comes; in the meantime we have to deal with law-breakers here on earth without God's help .
Thomas Hobbes believed that men are by nature egoistic and also <*> . The primitive conditions mentioned before would lead, he argues, to a "natural state of war": everybody would be fighting with everybody under constant fear - due to the equality of men the risk of getting killed would be the same for everyone. This would obviously be disadvantageous for everybody and that is why people thought it better to have some kind of system of justice and an absolute ruler who would protect their rights and property; in a chaotic world nobody can pursue their self-interests .
In today's material and competitive world Hobbes' idea of the developement of the system of justice because of our egoism sounds quite appealing. But if his claim that all men are equal is accepted, how can some people be in a position to punish others then? And what makes laws, that are after all created by people no superior to anyone else, so binding? Executing people or imprisoning them cannot be right just because the law says so; punishment needs to be justified in some other way .
Juha Räikkä introduces two competing theories for the justification of punishment. According to the retributional theory to punish criminals is justifiable simply because criminals deserve to be punished. The advocates of this theory define the concept of crime as an act that requires a punishment; the question of its justification vanishes into air. This sounds reasonable in brutal cases such as murders and rapes, which are acts that are usually considered to be morally wrong. But does a person who breaks the law in order to save somebody's life deserve a revenge? From the moral point of view it would certainly be worse if he obeyed the law and let somebody die because of that. The theory works if we assume that breaking the law is always morally wrong and that it is morally right to punish criminals; and the latter assumption is the very question where I am trying to find an answer - the retributional theory does not help me very much .
Deterrence theory justifies punishment on the grounds that the fear of punishment reduces the amount of crimes - and of course in a good society the crime-rate is as low as possible. Punishment has a double-effect: both the criminal and the public will avoid unlawful actions after the punishment. This theory has its defects too. Because the main reason for punishment is its educational effect rather than revenge, innocent people might get punished while criminals may get away with their crimes. This is quite consistent: it is perfectly justifiable, according to the theory, not to punish a cruel murderer if we can only be sure that he will not repeat his crime and that other people will not start killing each other either. On the other hand innocent people might even get executed just so that the public learns that crime does not pay; it is enough that everybody just believes that the unlucky person was guilty. History is full of examples of this rather cruel crime prevention method .
To justify punishment is a difficult task indeed. I would like to share the Hobbesian view that we are all equal; that some people are in a position to punish others has nothing to do with their superiority but with the convenience of this arrangement for everybody - maybe we are a bit more altruistic than Thomas Hobbes believed but still everybody wants to have their dearest possessions protected. I agree with the retributional theorists that criminals who deliberately want to hurt other people deserve to be punished; But I would like to combine in the idea of deterrence - punishment should not be merely a revenge but also a lesson for other people. More particular questions start to arise: How do we choose the judges? Surely the choice cannot be totally arbitrary - they need to possess suitable qualities for the task (which are, of course, compensated by other qualities among those who do not get chosen). But what are those qualities? What forms of punishment are acceptable? Which crimes are morally wrong? I have justified punishment to myself on the grounds that without it the society that consists of mostly egoistic people would not function - but whether it is morally right to punish criminals remains still unclear to me .
