Lessnoff “Two Justifications of Punishment” Type 4: Critical Application

Michael Lessnoff addresses two theories and their justifications of punishment, those being the retributive theory and utilitarian theory. He only assesses the theories regarding punishment, not as a whole. When doing so, he brings up the example of eminent domain.

Lessnoff first defines the retributive theory’s justification of punishment by explaining “the severity of the punishment ought to be, so far as possible, in proportion to the moral culpability of the act punished.” (Lessnoff 141) Essentially, the punishment must fit the crime. He states “the consequences of punishment, other than the immediate deprivation suffered by the criminal, are irrelevant to its justification.” (Lessnoff 141) The retributive theory is only concerned about the relationship between the crime and the punishment, not the outcome of the punishment.

Lessnoff then defines the utilitarian’s theory’s justification of punishment as “entirely by its beneficial consequences that punishment is justified, and not by any obligation to visit suffering on the perpetrators of immoral acts.” (Lessnoff 141) Lessnoff follows and explains that this justification makes it permissible to punish an innocent man “if it were an effective way of reducing crime” and to savagely punish a guilty man “if it were effectively a way of reducing crime.” (Lessnoff 143)

The dichotomy of these two justifications is exemplified through eminent domain. Eminent domain is defined as “he power of the government to take private property and convert it into public use.” (Eminent) The government is granted this power by the Fifth Amendment as long as they provide the land owners with “just compensation.” (Eminent) Lessnoff explains how eminent domain “causes suffering (or at least) inconvenience) to individuals, and hence demands justification.” (Lessnoff 144) Lessnoff’s argument concludes that “every aspect of punishment — act, rule, and practice — requires a dual justification.” (Lessnoff 148) Eminent domain is an example of a situation that requires dual justification. Lessnoff explains that the “compulsory purchase is necessary for the sake of economic development, amenity, etc.” is one justification and “those whose property is taken from them receive fair compensation” is the other. (Lessnoff 144)

I would argue that while eminent domain is easily explained by Lessnoff’s classifications of justification, it is much more complicated. Lessnoff even mentions how the term “justification” is ambiguous, as is the term “just compensation.” A liberal or conservative use of the word can entirely change its meaning and application. Eminent domain needs specificity in its definition.

“Eminent Domain.” Legal Information Institute, Legal Information Institute, www.law.cornell.edu/wex/eminent_domain.

Lessnoff, Michael. “Two Justifications of Punishment.” The Philosophical Quarterly, vol. 21, no. 83, 1971, p. 141., doi:10.2307/2218336.