NCJ Number
112810
Journal
University of Florida Law Review Volume: 40 Issue: 1 Dated: (Winter 1988) Pages: 17-84
Date Published
1988
Length
68 pages
Annotation
This article critiques the 'paternalistic' formulation of the 'moral good' theory of punishment to determine what role, if any, it has in explaining and justifying punishment, introduces a voluntaristic alternative to the paternalistic conception and defends it against some objections, and considers one major objection to ideal moral theories generally.
Abstract
Rather than focusing on socially desirable benefits or abstract notions of justice, the moral good theory grounds punishment in the offender's identity as an autonomous, rational, moral agent. The paternalistic conception of the moral good theory, as proposed by Herbert Morrs, uses the parent-child relationship as the model for punishment. Under this theory, punishment is logically tied to wrongdoing and to the child's capacity for acquiring the concept. Punishment encourages the child to realize there are limits on conduct and values to which the parents are devoted. The problem with the paternalistic theory of punishment is that its sanctions are externally imposed against the offender's will, thus violating the objective of promoting autonomy through punishment. According to the voluntaristic formulation of the moral good theory, the principal goal of punishment is to restore the offender's identity as a moral being. This means offenders must voluntarily re-examine their lives to appreciate the moral significance of their offenses and then understand and correct the beliefs and attitudes which prompted the transgression. In emphasizing voluntarism in punishment, the moral good theory is a moral ideal toward which to strive. It may require voluntarism in other political structures and a revision of contemporary social institutions generally. 216 footnotes.