PRE-PUNISHMENT, COMMUNICATIVE THEORIES OF PUNISHMENT, AND COMPATIBILISM
Article first published online: 23 MAY 2012
© 2012 The Author. Pacific Philosophical Quarterly © 2012 University of Southern California and Blackwell Publishing Ltd
Pacific Philosophical Quarterly
Volume 93, Issue 2, pages 125–136, June 2012
How to Cite
WRINGE, B. (2012), PRE-PUNISHMENT, COMMUNICATIVE THEORIES OF PUNISHMENT, AND COMPATIBILISM. Pacific Philosophical Quarterly, 93: 125–136. doi: 10.1111/j.1468-0114.2012.01424.x
- Issue published online: 27 MAY 2012
- Article first published online: 23 MAY 2012
Saul Smilansky holds that there is a widespread intuition to the effect that pre-punishment – the practice of punishing individuals for crimes which they have not committed, but which we are in a position to know that they are going to commit – is morally objectionable. Smilanksy has argued that this intuition can be explained by our recognition of the importance of respecting the autonomy of potential criminals. (Smilansky, 1994) More recently he has suggested that this account of the intuition only vindicates it if determinism is false, and argues that this presents a problem for compatibilists, who, he says, are committed to thinking that the truth of determinism makes no moral difference (Smilansky, 2007).
In this paper I argue that the intuitions Smilansky refers to can be explained and vindicated as consequences of the truth of a communicative conception of punishment. Since the viability of the communicative conception does not depend on the falsity of determinism, our intuitions about pre-punishment do not clash with (what Smilanksy calls) compatibilism. And if the communicative theory of punishment is – as Duff (2001) suggests – a form of retributivism, the account also meets New's (1992) challenge to retributivists to explain what is wrong with pre-punishment.