In his article, “A Non-Utilitarian Approach to Punishment,” H.J. McCloskey critiques utilitarianism which demands punishing of the innocent of benefiting the majority. He begins by acknowledging that it is easier for many people to accept utilitarianism as it advocates for the punishment of the offender. However, McCloskey explains how utilitarianism is unjust and morally unacceptable as it may demand punishment of innocent people. McCloskey asks whether all punishment is justifiable and gives an example where one person is framed as universally guilty for a crime that has become rampant in society. He suggests that it is essential to adopt retributive theory to achieve the morality of punishment.
McCloskey continues to explain how the moral consciousness of people processes punishment. Particularly, he explains that people believe that punishment is justifiable when directed to the individual who is guilty of committing a crime (McCloskey 120). Hence, it is essential to verify that a person is responsible for an offence before pronouncing a judgement. Moreover, the punishment given should not be excessive or non-proportional to the mistake of the person. However, the implication for adopting utilitarianism is that it is inherently unjust because it punishes the innocent by framing a person who people falsely believe to be guilty.
In the subsequent section, McCloskey critiques the stance of utilitarian forms of punishment while taking note of its flaws. For instance, he observes that utilitarianism is consequential in that the end is taken as a justification of the means. For example, McCloskey supposes that utilitarianism requires an actual person or assumed offender to be inflicted with injury, social quarantine or harm (McCloskey 123). A utilitarian may argue that ramification from punishing innocent people is secondary as long as there is deterrence of crime—such reasoning advocates for a retributivist form of righteousness that connotes immoral punishment.
McCloskey then provides some positive elements of retributive justice as derived from utilitarianism (McCloskey 131). The assumption that equals should be treated as such and limits placed on the unequal is generally accepted as a justice principle. However, the problem with such an argument is that it equates equality with fairness. There should be proof that the punishment provided is proper based on the kind of crime. The concern is the implication for either reduced or exceeded punishment.
The article ends by challenging his audience to thoroughly critique utilitarianism because of its potency to cause gross injustices. The article questions the premise that punishing the innocent may be unjust but relevant. The rationale is that the approach assumes that some atrocity is indispensable and people should accept them as a part of life. McCloskey contends that if society decides to adopt the utilitarian approach, it makes any castigated person guilty. Such a system is immoral and bound to cause more evils in the community, especially to those without the means of self-defence. Therefore, it is not just deserved punishment that is morally permissible because other considerations may make it ethical to reduce or increase the sentencing.
McCloskey raises pertinent issues in the utilitarianism approach to justice. His method of first explaining the core premises and comparing them with moral consciousness sets the proper ground for seeing the flaws in redistributive punishment. The world would definitely be a safe place if it were possible to get rid of all evils. However, since such a society is practically impossible to achieve, the other alternative is to punish the people found guilty of offences. The challenge is the burden of proving guilty, chances of punishing the innocent due to framing, and determining the correct measurement for universal punishment.
McCloskey’s conclusion regarding utilitarianism is that it is flawed because it presents punishment of the innocent as inevitable in a just society. A good example is when factual data is used to frame an innocent person to appear guilty of a crime they did not commit. Given that people generally believe that they are guilty, the utilitarian approach will demand that they get punished. Moreover, the principle of inflicting pain and injury on people does not compensate for the problem that is in society.
Furthermore, the author is right in arguing about the challenge of seeking justice for a crime that has become common. For example, suppose a thousand people boycott work and decide to demonstrate and vandalize the streets. Is it justifiable for one of them to be punished as an example the rest? Past injustices such as lynching and mob justice were primarily based on utilitarianism yet were morally incorrect. Thus, advocating for a non-utilitarian approach is trying to rectify the evils that past people did in the past.
It is impressive that McCloskey identifies the difficulty in providing equal punishment for wrongs that have been committed. Specifically, he calls the readers’ attention to other considerations, such as the authority and the circumstances surrounding the crime. For example, if a person breaks into a mall and steals a bag for leisure, a second one also breaks in but steals bread for a child to eat should they receive equal punishment. Both are thieves, but it is fitting to reason beyond the theft and see the moral justification for the reason that the latter stole. The fact that he was empathetic towards a child should render him less punishment.
Work cited
McCloskey, H. J. “A non‐utilitarian approach to punishment.” An Interdisciplinary Journal of Philosophy, 1965, pp. 119-134.