Does Necessity Justify Punishment? Assessing the Main Threat to David Boonin's Restitution Theory
by Stephen Kershnar
David Boonin's book The Problem of Punishment concludes that legal punishment is wrong. this is one of the best books ever written on the philosophy of punishment. Because this is the best and most in-depth defense of the claim that legal punishment is wrong, it is worth looking at the biggest threat to Boonin's thesis: the necessity defense of punishment.
Boonin begins by arguing for the following (weaker) definition of "legal punishment."
(1) P's act a is a legal punishment of Q for offense o if and only if
(a) Official: P is a legally authorized official acting in his or her official capacity,
Offense: P does a because P believes that Q has committed o,
Intention: P does a with the intent of harming Q, and
Disapproval: P's doing a expresses official disapproval of Q for having committed o.
He then argues that the purported justifications of punishment fail the foundational test or the Entailment test.
(2) Foundational Test: A theory satisfies the foundational test if and only if it does not have implications that are so counterintuitive that there is sufficient reason to reject the theory.
(3) Entailment Test: A theory satisfies the Entailment test if and only if it entails that legal punishment is permissible.