Punishment Theory: Moral or Political?

Is the justification of punishment a moral question? Much contemporary writing on punishment, whether by philosophers or legal scholars, treats it as such. Theories of punishment are taken to be moral theories, and the problem of justifying punishment is presented as a key battle-ground in the war between utilitarian and deontological ethics. The question of how and when the state should punish is reduced to the question of how and when particular persons should punish other persons. This question in turn is treated as just a special case of the more general question whether persons are morally obliged to govern their actions by the aim of maximizing human welfare or by rules of fair treatment. But surely this is an odd way to think about punishment. Punishment is not a behavior, but an institution. It is part of a system that involves conduct norms, an authoritative procedure for generating these norms, an authoritative procedure for decisions to impose sanctions, and some measure of practical power over persons or resources. To punish someone is not just to harm them, nor even just to harm them because of something they have done. It is to stake a claim to a certain kind of institutional authority, even when the institution is only the family. To punish someone is to assert a right and accept an obligation to punish anyone similarly circumstanced and behaved, even if that other person be only a sibling. Punishment is never the isolated act of an individual: to punish is to act as an officer or agent participating in a system for enforcing an authoritatively promulgated norm. Because punishment is part of a system of institutional authority, it is not amenable to a simple moral