A FRAMEWORK FOR PUNISHMENT:

WHAT IS THE INSIGHT OF HART’S PROLEGOMENON?

DOUGLAS HUSAK

I: HART’S SUPPOSED INSIGHTS

Nearly all of H.L.A. Hart’s philosophy of criminal law is helpfully contained in his 1968
collection Punishment and Responsibility.1 Clearly the most influential essay in this volume is
the first: “Prolegomenon to the Principles of Punishment,” originally delivered as the
Presidential Address to the Aristotelian Society in 1959.2 And the most important insight of this
essay is that oversimplification and distortion are best avoided if we realize that “different
principles (each of which may in a sense be called a ‘justification’) are relevant at different
points in any morally acceptable account of punishment. What we should look for are answers
to a number of different questions.”3 In particular, Hart raised three (or perhaps four) separate
questions about punishment and invoked distinct considerations about each: matters of
definition, inquiries into the general justifying aim, and disputes about distribution---the last of
which he further subdivided into the issues of who should be punished and to what extent.
Hart’s substantive views about these problems are celebrated. Even more influential, however,
is the structure Hart brought to bear on the topic of how philosophical thought about
punishment should proceed. The very first sentence in his Prolegomenon indicates that the
“main object of this paper is to provide a framework for the discussion of the mounting

I would like to thank Chris Pullman for helpful suggestions that led to improvements on an earlier draft of this
paper.
1
H.L.A. Hart: Punishment and Responsibility (Oxford: Oxford University Press, 1968).
2
H.L.A. Hart: “Prolegomenon to the Principles of Punishment,” 60 Proceedings of the Aristotelian Society 1 (1959-
1960).
3
Op.Cit. Note 1, p.3.

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perplexities which now surround the institution of criminal punishment.”4 The inquiries he
distinguishes form the centerpiece of his entire philosophy of criminal law.

Hart introduces these three topics indirectly, through a suggestive analogy between
punishment and property. “In the case of property,” he writes, “we should distinguish between
the question of the definition of property, the question why and in what circumstances it is a
good institution to maintain, and the questions in what ways individuals may become entitled
to acquire property and how much they should be allowed to acquire.”5 If indeed this analogy
is sound, we should understand philosophical inquiries about punishment to be parallel to
those about property. Thus we should ask: What is punishment, is punishment a good
institution to maintain, and who should be punished to what extent? After presenting the
above analogy, Hart famously indicates “in the case of punishment the beginning of wisdom
(though by no means its end) is to distinguish similar questions and confront them separately.” 6
In short, the morally relevant principles that establish why we should have a system of
punishment may differ from those that pertain to matters of distribution---that govern who
should be punished and to what degree. And each of these considerations is applied to the
topic of punishment, a practice Hart was careful to define.

But is this analogy between punishment and property sound? I am skeptical. It is

noteworthy that Hart’s distributive questions about property are expressed in terms of
entitlement: who is entitled to acquire property and how much? It would be peculiar, however,
to suppose that anyone is entitled to punishment. And no term that is even roughly analogous-
--such as desert---appears in his formulation of distributive questions about punishment. He
might have asked, for example, how people become deserving of punishment, and how much
punishment do they deserve? Of course, it is no accident that Hart avoids the use of this term.

4
Id., p.1.
5
Id., p.4 (italics in original).
6
Id.

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Its inclusion would beg questions against those philosophers who believe desert has nothing to
do with questions about how punishment should be justified or distributed.7

In any event, even those legal philosophers who reject Hart’s answers tend to be
favorably impressed by the roadmap he provides of the terrain to be covered. The structure he
builds is generally regarded as the greatest insight in Hart’s Punishment and Responsibility. In
what follows, I will challenge whether Hart is correct about how a philosophical investigation of
punishment should proceed. I will raise doubts about whether his framework merits the
acclaim it has received from generations of philosophers of criminal law. I begin with an
account of what it is Hart thought needs to be justified. The answer, of course, is punishment.
But what is that? To respond, it is important to provide a definition of punishment. Armed
with a definition, Hart is able to undertake a normative inquiry into what requires justification.
I will argue that the topics about punishment Hart thought it crucial to treat separately---
definition, general justifying aim and distribution---are inter-related far more closely than he
seems to suppose. Several of the justificatory problems he encounters originate in deficiencies
in his definition of punishment. If I am correct, much of the philosophy of criminal law Hart
subsequently builds upon his foundation is insecure.

II: HART’S DEFINITION OF PUNISHMENT

I order to identify what we are trying to justify, we require a definition of punishment.8

Because Hart’s definition is succinct and has been extraordinarily influential, I quote it in full:

“I shall define the standard or central case of ‘punishment’ in terms of five elements:

7
Of course, the same might be said about entitlement in the context of property. In any event, I will not comment
further on the similarities and differences between the distributional questions Hart poses about property and
punishment.
8
Although Hart professes to borrow this definition from Stanley Benn and Antony Flew, he does not mention how
or why he has altered the original version. Benn, for example, does not include pain in his definition. See S.I.
Benn: “An Approach to the Problems of Punishment,” 33 Philosophy 325 (1958). Reasonable questions might be
raised about the metric of punishment---the currency we use to decide whether one instance of punishment is
more or less severe than another. Pain is not the only possible candidate.

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 (i) It must involve pain or other consequences normally considered
unpleasant.
(ii) It must be for an offence against legal rules.
(iii) It must be of an actual or supposed offender for his offence.
(iv) It must be intentionally administered by human beings other than the
offender.
(v) It must be imposed and administered by an authority constituted by a
legal system against which the offence is committed.”9

Despite its influence, however, this definition is almost certainly deficient in several respects. I
make no effort to describe each of its problems, focusing on three in particular.10 The three
deficiencies I will discuss become important if we recall why Hart thought it necessary to
provide a definition of punishment in the first place. If we keep Hart’s purpose in mind, we will
be better equipped to identify the criterion by which a proposed definition should be
assessed.11 Since his definition is introduced in the context of his effort to justify punishment, it
should allow us to appreciate what it is about punishment that requires justification. A
proposed definition fails this criterion if it does not direct our attention to the features of
punishment that call for a defense. I will provide three reasons to conclude that Hart’s
definition fails this very test. The flaws I claim to detect are not minor, but expose fundamental
inadequacies in Hart’s entire philosophy of criminal law. Some of the most difficult questions
about punishment---which have vexed and divided legal philosophers for millennia---can easily
escape our notice if we suppose that Hart’s definition correctly identifies what we are trying to
justify.

9
Op.Cit. Note 1, pp.4-5.
10
Arguably, this definition is circular. Four of the clauses refer to an offence or an offender. If an offense is
defined as whatever subjects the offender to legal punishment, this definition may not be especially informative.
11
Of course, a definition of punishment might be valuable for any number of purposes. A great many
constitutional safeguards, for example, apply when defendants are punished, but do not apply when they are not.
To decide whether a particular sanction is “cruel and unusual” and thus in violation of the Eighth Amendment, for
example, the sanction in question must amount to a punishment. Thus a definition is valuable to decide whether a
particular sanction triggers Eighth Amendment protection. The importance of this point is illustrated in the
dissenting opinion of Justice Thomas in Hudson v. McMillan, 503 U.S. 1, 17 (1992).

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 First, consider clause (i): punishment “must involve pain or other consequences
normally considered unpleasant.” For present purposes, this clause is noteworthy not so much
for what it contains, but rather for what it leaves out. It omits the crucial fact that treatment
that involves pain or an unpleasant consequences does not qualify as a punishment unless its
very purpose is to impose pain or an unpleasant consequence. To be sure, clause (iv) requires
that punishments must be “intentionally administered by human beings.” But I construe this
clause to preclude the possibility that someone might be ‘punished’ by officials who did not
realize what they were doing or even without human contrivance at all---through a natural
misfortune, for example. My point is different. I claim that the pain suffered by a defendant
does not count as a punishment when it is knowingly but not purposely inflicted, that is, when
an authority is aware pain will result but lacks the intention to cause it.

We miss what is especially hard to justify about punishment unless we understand that
sanctions do not qualify as punitive unless their very purpose is to cause pain or an unpleasant
consequence. After all, countless persons cause pain knowingly---as every dentist, for example,
can attest. What is their justification for doing so? Surely acts that produce pain require
justification, regardless of whether it is inflicted intentionally or knowingly.12 Any dentist can
supply the answer. Medical practitioners would be happy to minimize pain or eliminate it
altogether whenever they are able to do so while accomplishing their objectives. A dentist is
permitted to knowingly cause immediate pain to his patients because he is aware of no better
way to prevent them from suffering even greater unpleasant consequences in the future. No
mystery is involved here. If a patient discovers that his dentist is inflicting pain purposely and
not merely knowingly, however, he is well advised to report the sadistic offender to the
appropriate professional board and to find a more humane practitioner at once.

The kind of calculus that governs the decisions of the non-sadistic dentist is foreign to
the criminal law. We do not redesign punishments to eliminate or minimize pain. Nor do we
permit its infliction only when it causes fewer unpleasant consequences to offenders in the
future than in the present. A sound justification for purposely inflicting punitive hardship

12
Pain inflicted knowingly requires a justification. For possible complications this fact causes for retributive
attempts to justify punishment, see Adam Kolber: “Unintentional Punishments,” 18 Legal Theory 1 (2012).

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cannot appeal to the same considerations that justify inflicting pain knowingly. To what, then,
can a sound justification appeal? This question has proved extraordinarily difficult to answer.
But Hart misses the importance of this crucial question because he fails to define punishment
as the intentional infliction of pain or consequence normally considered unpleasant. Thus he
neglects to notice one of the central features that make punishment so morally problematic.

Why did Hart not include this point in his definition? I can only speculate that his critical
views about the doctrine of double effect play a central role in the explanation. In judging
whether given acts are permissible, Hart famously argued that the contrast between intention
and foresight is morally irrelevant. For example, the acts of the strategic bomber who knows
his bombs will kill innocent civilians but drops them to destroy the adjacent munitions site are
morally indistinguishable from those of the terror bomber who intends to kill innocent civilians
and drops his bombs to demoralize the enemy. Philosophers have continued to disagree about
the relevance of intentions to permissibility for a very long time---both in moral theory and in
the criminal law. But even if Hart’s substantive position in this dispute is correct---as I am
inclined to doubt---it hardly follows that the contrast between intention and foresight is
irrelevant for any and all purposes.13 In particular, this contrast is often needed in order to
accurately characterize the conduct in which persons engage. In fact, the significance of this
contrast is presupposed by the foregoing descriptions of strategic and terror bombers. We
would be unable to distinguish these agents, and thus to ask moral questions about their
respective conduct, unless we drew an intelligible the contrast between purpose and
knowledge. And so with punishment. We cannot accurately describe what punishment is---and
to distinguish it from similar practices that superficially resemble it---unless we understand it to
involve the intentional infliction of pain or an unpleasant consequence. This is the feature that
precludes us from resorting to the defense employed by the dentist who knowingly inflicts pain,
and thus is a crucial aspect of the practice that renders a justification of punishment so difficult
to produce.

13
See Douglas Husak: “The Costs to Criminal Theory of Supposing that Intentions are Irrelevant to Permissibility,”
in Douglas Husak, ed.: The Philosophy of Criminal Law: Selected Essays (Oxford: Oxford University Press, 2010),
p.69.

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 A second deficiency with Hart’s definition involves the same clause, but raises a
different concern. As we have seen, Hart believed that punishments necessarily involve pain or
some other unpleasant consequence. But whether or not these hardships are inflicted
purposely or merely knowingly, punishments involve an additional element that Hart’s
definition omits. A punishment, by definition, contains an expressive or condemnatory
element. As Joel Feinberg famously observed several decades ago, a punishment is “a
conventional device for the expression of attitudes of resentment and indignation, and of
judgments of disapproval and reprobation.”14 Unpleasant consequences that lack this feature
simply are not punishments. For example, a citizen may be required to pay a tax when his
income exceeds a given threshold. No one doubts that the payment of taxes is unpleasant---a
necessary evil. Nonetheless, the payment of a tax clearly is not a punishment. Why not? The
answer is that persons required to pay taxes are not condemned or stigmatized, unlike those
who are punished. In the former case, the expressive dimension needed to transform a
sanction into a punishment is absent.

Hart’s failure to include this element makes his subsequent endeavor---his project of
trying to justify punishment---incomplete. The condemnatory aspect of punishment requires a
defense in addition to the pain or unpleasant consequence element, and attempts to justify the
former may be every bit as problematic as attempts to justify the latter. No reasonable person
likes to be stigmatized. In fact, condemnation may be the primary feature of punishment that
requires justification.15 Sometimes individuals reluctantly accept deprivations while going to
extreme lengths not to admit they have done anything that merits censure.

I am at a loss to understand why Hart neglects to include an expressive dimension in his

definition of punishment. He certainly is aware that a great many legal thinkers invoke

14
Joel Feinberg: “The Expressive Function of Punishment,” in Feinberg, ed.: Doing and Deserving (Princeton:
Princeton University Press, 1970), p.95, 98.
15
Efforts to defend the intentional infliction of pain or unpleasant consequence frequently appeal to the
supposition that mere expressions of condemnation may be inadequate unless accompanied by hard treatment.
See R.A. Duff: “Punishment, Communication, and Community,” in Matt Matravers, ed.: Punishment and Political
Theory (Oxford: Hart Publishing, 1999), p.48. Alternatively, pain might be justified as an added incentive to abstain
from crime in case condemnation alone is insufficient. See Andrew von Hirsch: “Punishment, Penance, and the
State,” in Mattravers: id., p.69. For further thoughts, see Douglas Husak: “What Do Criminals Deserve?”
(forthcoming, 2014).

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expressive considerations in their theories. But he construes “the most charitable explanation”
of Lord Denning’s remark that punishment is an “emphatic denunciation of the community of a
crime” as a confused attempt to justify punishment rather than as a part of an account of what
punishment is and thus requires justification.16 Hart is clear that laws specifying that conduct
be punished should not be confused with laws specifying that conduct be taxed. But he tries to
differentiate these two kinds of law on the ground that “the first involves, as the second does
not, an offence or breach of duty in the form of a violation.”17 Although his remark is correct as
far as it goes, he should have mentioned why the contrast between offenses and non-offenses
is salient: an offense proscribes conduct the state denounces. Why is the expressive element
missing from his definition? I do not even have a speculative reply to offer.

The third and final deficiency in Hart’s definition is probably the most important and has
probably caused the most mischief since the publication of his Prolegomenon. Clause (ii)
stipulates that punishments must be “for an offence against legal rules” and clause (v) provides
that punishments “must be imposed and administered by an authority constituted by a legal
system.” In other words, punishments, by their very nature, are imposed by a legal system for
a legal offence---which, for simplicity, I will say are imposed by the state for the commission of
a crime. These clauses have become conventional wisdom, so it is easy to miss what is peculiar
about them. As Leo Zaibert reminds us, punishments are routinely dispensed by schools, by
parents, and by many other figures---even by friends and acquaintances.18 Suppose, for
example, that Susan is a student in a private school that initiates an intramural softball
program. All students are eligible to compete for a place on their homeroom team. Susan wins
the competition and begins to play. She is subsequently caught cheating---she knowingly uses a
type of bat that enhances performance and is explicitly prohibited by the rules. Surely the
school can punish her. Moreover, the school has reason to punish her; it would be justified in
deliberately imposing some sort of unpleasant consequence as well as stigmatizing her. For

16
Op.Cit. Note 1, p.7 and n.10.
17
H.L.A. Hart: The Concept of Law (Oxford: Clarendon Press, 1961), p.39. See also Op.Cit. Note 1, p.7.
18
Leo Zaibert: Punishment and Retribution (Burlington, Vt.: Ashgate, 2006). Zaibert is not alone in making this
point. See, for example, Neil MacCormick and David Garland: “Sovereign States and Vengeful Victims: The
Problem of the Right to Punish,” in Andrew Ashorth and Martin Wasik, eds.: Fundamentals of Sentencing Theory
(Oxford: Oxford University Press, 1998), p.11, especially p.23.

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example, the school might publicly identify her infraction and ban her from subsequent
competitions for which she would otherwise be eligible. In other words, the school would be
justified in punishing her, even though the school does not act pursuant to state authority and
Susan has not committed a crime.

But nothing in the above example need be changed if we suppose that Susan has
committed a crime. Instead of using an illegal bat, imagine that Susan knowingly uses a
performance-enhancing drug expressly prohibited by school policy as well as by the criminal
law. This alteration in the original example only strengthens the case in favor of punitive action
by the school. Again, the school has reason to publicly identify her infraction and ban her from
subsequent competitions for which she would otherwise be eligible. If I am correct, the familiar
idea that the state has a monopoly on punishment is false. The state does not even have a
monopoly on punishment for crime---unless, following Hart, the possibility that non-state actors
can punish crime is precluded by definition.

Why did Hart include this peculiar clause? Admittedly, he describes “breaches of non-
legal rules or orders (punishments in a family or school)” as a “sub-standard or secondary case”
of punishment.”19 But this concession simply requires my criticism to be rephrased. Why
would Hart consider my above example to involve a “sub-standard or secondary case” of
punishment? On what ground must a “standard or central case” of punishment be imposed by
the state for a crime? Again, I am unsure. I realize that it is state punishment that legal
philosophers such as Hart are struggling to defend. Even so, these clauses appear to involve a
version of the “definitional stop” Hart is so careful to avoid elsewhere in his writings about the
philosophy of criminal law. He persuasively argues that we should not try to show that given
attempts to justify punishment could not possibly permit the punishment of persons known to
be innocent because innocents cannot be punished. But why do these clauses not employ the
same objectionable tactic? This part of Hart’s account seems to solve by stipulation the
question of how the state gains the authority to impose punishment. We are required to face

19
Op.Cit. Note 1, p.5.

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this thorny issue once we realize that it should not be resolved by definition. Once confronted,
the answer to why the state has the authority to punish is contentious.20

This deficiency in Hart’s definition has caused mischief among legal philosophers in at
least two ways. The first is that abolitionist positions about punishment---which have always
attracted a relatively large following on the European continent and have become increasingly
popular in Anglo-American scholarly commentary---lose plausibility.21 It is one thing to deny
that states can ever be justified in punishing offenders for crime. It is quite another to assert
that no one can ever be justified in punishing anyone for anything. Abolitionist positions
presumably are meant to deny only the permissibility of state punishment. But the claim that
no one can ever be justified in deliberately imposing a stigmatizing deprivation on another is
quite remarkable and is far more radical than many contemporary abolitionists seem to
appreciate. If this more radical interpretation of the abolitionist position were true, many
familiar practices would have to be rethought and abandoned. Susan’s school would not be
justified in punishing her for knowingly using a bat prohibited by the rules of softball or for
taking a performance-enhancing substance proscribed by the penal law.

A second problem caused by this deficiency in Hart’s definition is as follows. Legal

philosophers tend to believe that punishments must be proportionate, which I take to require
(ceteris paribus) the severity of punishment to be a function of the seriousness of the crime. I
have contended that all sorts of institutions and individuals may impose punishments and that
the punishments they impose are sometimes justified. If I am correct, should any quantum of
punishment inflicted by non-state actors for criminal behavior count against the severity of
punishment subsequently inflicted by the state?22 Let me provide an illustration of the
problem I have in mind. Imagine Jack rapes Jill and Bill perpetrates an equally wrongful rape
against Elizabeth. Suppose Jill punishes Jack for his crime by deliberately inflicting some sort of
stigmatizing deprivation. Now suppose Elizabeth (for whatever reason) elects not to respond to
Bill at all. Both Jack and Bill are subsequently arrested, convicted, and await the sentence to be
20
For further thoughts, see Douglas Husak: “State Authority to Punish Crime,” (forthcoming, 2014).
21
The most philosophically sophisticated defense of abolitionism is Michael J. Zimmerman: The Immorality of
Punishment (Buffalo: Broadview Press, 2011).
22
See Douglas Husak: “Already Punished Enough,” in Husak, ed.: Op.Cit. Note 13, p.433.

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imposed by a judge of the state in which their crimes were committed. Ex hypothesi, Jack has
already been punished to some extent for his deed. If the judge imposes an identical sentence
on Jack and Bill, it follows that Jack is punished more severely than Bill. How can this disparate
outcome be reconciled with the demands of the principle of proportionality?23

The case for allowing what Jill does to Jack to count against the severity of the sentence
a judge should impose is strongest when Jill inflicts a stigmatizing hardship on Jack that is
extremely unpleasant---as great or even greater in severity than the punishment Jack deserves
by law. Suppose Jill fashions a makeshift prison in a secret location and incarcerates Jack for a
longer period of time than a judge would allow on behalf of the state. Suppose further she
publicly announces what she has done, intending (successfully) to stigmatize Jack to whatever
extent he deserves. The question is not whether Jill’s conduct is permissible. It is not. Instead,
the question is whether Jack should subsequently be sentenced as though Jill had behaved like
Elizabeth and not retaliated for the rape. When Jack is eventually released from his makeshift
prison and prosecuted and convicted by the state, how severely should he be punished relative
to Bill? Although I do not pretend to have an adequate answer to this question, I do know that
one possible answer is inadequate. We should not respond, as I suspect a good many penal
theorists would be inclined to do, by stipulating that nothing that is done to Jack by non-state
actors such as Jill can count against the severity of the sentence the state is authorized to
impose. This stipulation strikes me as implausible unless it is true that what is done to Jack by
Jill is not an instance of punishment at all. But the claim that what Jill has done to Jack is not an
instance of punishment seems defensible only because we are unduly influenced by Hart’s
definition and mistakenly suppose that central cases of punishment “must be imposed and
administered by an authority constituted by a legal system.” Thus Hart’s account leads us to
miss the importance of difficult questions that require a substantive answer rather than an
appeal to a definition.

23
One commentator describes the difficulty I raise as the boundary problem. See Larry Alexander: “You Got What
You Deserved,” Criminal Law and Philosophy (forthcoming, 2013).

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 III: HART’S TWO JUSTIFICATORY QUESTIONS

Recall that Hart provides a definition of punishment primarily in order to identify what it
is that requires justification. More specifically, he believes that a definition is needed to
address two different normative issues: “for what are we trying to provide a general justifying
aim?” and “for what do we seek principles of distribution?” Even apart from the three
deficiencies I hope to have identified, however, it should be clear that a definition is only of
limited use in answering these questions. After all, quite a few very different institutions satisfy
this definition and thus qualify as institutions of punishment. Presumably, every system of
punishment known to man throughout human history satisfies an adequate definition, but not
every such system is justified.24 In order to assess its general justifying aim, we need to know
more about a given system than that it satisfies a definition and thus qualifies as a system of
punishment. What more would we need to know? Actually, we would need to know a great
deal more.

I will briefly mention only three additional bits of information we would require.25 First,
we would need to know the monetary price tag of our system of punishment. Whatever its
benefits may be, precious taxpayer resources are required to keep state institutions afloat, and
each such institution competes with other worthy institutions---such as schools---for funds.
Philosophers have typically written about criminal justice as though opportunity costs were
irrelevant to its justification. But there must be some point at which a system of punishment is
not worth its cost. Second, we would need to know how many or what percentage of innocent
persons are punished---accidentally or by the deliberate abuse of legal officials.26 Again, I
assume a system of criminal justice might lose its legitimacy because too many innocent

24
Hobbes might be interpreted to claim that any system of political authority is preferable to the state of nature
and thus is justified. Whether or not this interpretation of Hobbes is correct, the claim that any system of
punishment is better than its absence is implausible.
25
For further thoughts, see Douglas Husak: “Why Punish the Deserving?” in Husak, ed.: Op.Cit. Note 11, p.393.
26
Theorists have been more sensitive to this concern. See Leon Freidman: “The problem of Convicting Innocent
Persons: How Often Does It Occur and How Can It Be Prevented?” 56 New York Law School Law Review 1053
(2011/12).

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persons are punished. Finally, we would need to know to what extent legal officials would
abuse their power and make conditions worse for those over whom they have authority.
Whatever goods a system of penal justice might provide for citizens must ultimately be
balanced against these harms.

For present purposes, however, it is instructive to notice that some of the additional
information we would require falls within what Hart categorized as issues of distribution. That
is, we could not begin to decide why we should have an institution of something called
punishment unless we had some idea of who is to be punished and to what extent. It would be
“preposterous,” as David Dolinko has recognized, to imagine we could determine whether or
why it would be good to inflict pain or unpleasant consequences on individuals without being
given a clue about who is to suffer these sanctions.27 Of course, one of these questions about
distribution is resolved by Hart’s definition. Clause (iii) provides that punishment may be
imposed only on an actual or supposed offender for his offense. But even though this
stipulation already blurs the line between the questions about punishment Hart sought to keep
distinct---a point to which I will return---it does not advance the inquiry very far. Suppose we
were assured that only real or supposed offenders would be punished. Could we then assess
whether a given institution of punishment is justified?

Not at all. To decide whether a given institution of punishment is justified, we must also
have some idea of what these offenders are punished for. In other words, we would need to be
confident that the system contains acceptable principles of criminalization.28 Once again, it is
difficult to identify the precise point at which a system of punishment loses its legitimacy
because it implements deficient principles of criminalization. But imaginary cases can be used
to show that such a point must exist. It is hard to see how a system could have an acceptable
justifying aim if it punishes all persons who speak against the ruling party, all those who
exercise religious liberty, and each of those whose behavior is deemed objectionable ex post by
the tyrannical ruler. In short, in the absence of information about for what persons are

27
See David Dolinko: “Some Thoughts about Retributivism,” 101 Ethics 537 (1991), especially p.541.
28
Generally, see Douglas Husak: Overcriminalization (New York: Oxford University Press, 2008).

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punished---a distributional question---we hardly can be expected to decide whether that
system has a justifying aim.

It is sometimes thought that Hart’s division of topics about punishment into general
justifying aim and distribution is helpful to show why different institutional actors play distinct
roles in the criminal justice system. The legislature is assigned the task of deciding what
conduct to prevent, while the judiciary, in turn, is entrusted with the authority to determine
whether a given person has engaged in the proscribed conduct and thus (absent excuse) is
eligible for punishment. If I am correct, however, these roles are not as distinct as might be
thought. If the legislature enacts the wrong crimes---and proscribes conduct the state should
not prevent---it is hard to see why judges are permitted to punish persons who engage in it.
The facile response that judges should punish such conduct because it is a crime clearly proves
too much. The fact that legislatures have perpetrated an injustice is no reason for judges to
compound the error. Unless the offense in question satisfies minimally respectable principles
of criminalization, judges should not distribute punishment.

Let me express this point somewhat differently. The enactment of a criminal offense
proscribes but does not always prevent conduct. Inevitably, some persons will engage in the
behavior, whatever the law may be. If indeed the state means what it says in denominating the
conduct as criminal, the offender will become subject to punishment. These punishments must
be justified. I conclude that before a legislature proscribes given types of behavior, it had
better have reason to believe that at least some of the persons who commit the crime can be
punished justifiably. If I am correct, questions about the permissibility of punishment cannot
be separated from normative questions about criminalization.

But assurance that a given system implements respectable principles of criminalization

only begins our inquiry. We must also know whether the system uses discretion to distribute
punishments reasonably fairly among those who engage in whatever conduct is legitimately
proscribed. In the absence of this information, we could not pronounce a given institution of
punishment to be justified. Once again, this point is illustrated most easily by extreme
examples. Suppose we found that a given institution punished males but not females, blacks

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but not whites, or right-handers but not left-handers. These findings would belong squarely
within the domain of what Hart regards as issues of distribution. But no one would think that
these findings would be immaterial to an assessment of the general justifying aim of the
institution in question. Indeed, it is almost certain that no institution of punishment with the
foregoing distributional properties could possibly have a general justifying aim we should
accept.

Much the same point can be made about the second half of the distributional question
Hart posed: to what extent should persons be punished? Suppose we found that a given
system of penal law employed excruciating tortures against each of those persons it sentenced.
This finding, I believe, would suffice to deprive the system of its general justifying aim. Surely it
is facetious to think that the issue of extreme and pervasive torture would become relevant
only after we have decided that the institution in question is good to maintain. At some point,
information about to what extent persons are punished by a system undermines our belief that
the system has a general justifying aim.

Legions of legal philosophers have glossed over these complex issues by stipulating that
the institution of punishment they seek to defend is “basically just.” Although it is not entirely
clear what this stipulation is designed to encompass, it is easy to appreciate why it is made.
Punishment is hard enough to defend even in legal systems that conform closely to ideals of
justice, so matters become unduly complex when departures from justice become substantial.
But even though this stipulation is easily motivated, it must not be allowed to escape our
notice. Few theorists, to my knowledge, provide any detail about its meaning. What specific
kinds of injustice would lead a legal system to lose its legitimacy? Admittedly, the question is
enormously difficult; criminal theorists can be excused for their reluctance to tackle it explicitly.
But Hart was quite familiar with this topic because of his long-standing debates with Lon
Fuller.29 My point, however, is not simply that we are uncertain about where lines are drawn.
Instead, my point is that any detail about what makes a legal system basically just or unjust

29
The classic source is Lon L. Fuller: The Morality of Law (New Haven: Yale University Press, 1964). For a more
recent examination, see Peter Cane, ed.: The Hart-Fuller Debate in the Twenty-First Century (Oxford: Hart Pub.,
2010).

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would reveal that assumptions about questions of distribution are essential if we are to deem
an institution of punishment to have a justifying aim.

The interdependence between the general justifying aim and the distribution of
punishment can also be appreciated by turning to the answers Hart provides to the questions
he sought to distinguish. Many of the answers in his Prolegomenon are tentative.30 As we have
seen, Hart is more interested to construct a framework that shows given combinations of
answers to be compatible or incompatible than to offer a definitive solution to a particular
question. Nonetheless, his answers---insofar as they are cogent---reveal that the contrast
between these topics is less clear that he seems to acknowledge. Hart himself is inclined to
think that the general justifying aim of punishment consists in the value we attach to
deterrence. A particular system would lack a justifying aim unless it prevented significant
numbers of offenses that would occur in its absence. Hart has almost nothing to say about how
many such offenses would have to be prevented in order to justify an institution of criminal
justice, but it is difficult for anyone to be very precise about where this elusive point is located.
In any event, he concedes that it may be intelligible and coherent to suppose that a retributive
good is promoted when the guilty are punished. Nonetheless, he is repelled by this position
from a moral point of view and later explicitly sides with those theorists who find it hard to
believe that pain or unpleasant consequences can be (intrinsically) good---even when they are
deserved.31 Thus Hart goes to considerable lengths to show that retributive considerations may
come into play only to address normative issues of distribution: who should be punished to
what extent.

Hart emphatically alleges “retribution in the Distribution of punishment has a value

quite independent of Retribution as Justifying Aim.”32 What does this mean? Hart is a bit
evasive about exactly what considerations qualify as retributive,33 but let us suppose that such

30
Hart becomes far less tentative later---most notably, in “Postscript: Responsibility and Retribution,” id. p.210.
But he does make a few commitments even in his Prolegomenon. Most notably, he contends that “of course
Retribution in General Aim entails retribution in Distribution.” Id., p.9.
31
Id., p.
32
Id., p.12.
33
Hart recognizes the variety of positions that are called retributive in op.cit., p.231.

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considerations can be expressed in terms of the “importance” we “attach” to “the restrictive
principle that only offenders may be punished.”34 In other words, Hart believes we can identify
an independent value served by the principle that restricts punishment to persons who have
committed crimes rather than to those known to be innocent. This value is freedom. More
specifically, Hart famously limits punishment to offenders so that only those persons who have
normal capacities to do or abstain from what the law requires and a fair opportunity to exercise
those capacities need worry that they will run afoul of the law. Thus we can plan our lives more
effectively, confident that our freedom is not unduly hampered by our system of penal justice.
Unfortunately, Hart’s defense of the supposed retributive value in distribution does not
succeed in showing that we attach independent importance to the punishment of offenders.
Demonstrating the injustice of punishing those who have not committed a crime is a far cry
from demonstrating the justice of punishing those who have. In fact, it is hard to see how or
why Hart has provided any reason to punish offenders except for the expectation that it would
further the general justifying aim of deterrence. Thus, even in matters of distribution, it
appears that the crime-prevention benefits supplied by the general justifying aim of
punishment are doing all of the positive work---that is, all of the work in explaining why pain or
unpleasant consequences should ever be inflicted.35

According to John Gardner, the foregoing failure is monumental. The allegation that
Hart provides no reason to punish those who have committed crimes entails that he has not
met a condition of adequacy that any theory of punishment must satisfy. As a result, Gardner is
tempted to conclude that Hart’s “would-be defence of punishment… is not a defence of
punishment after all.”36 According to Gardner, “to mount an adequate defence of punishment
one must… show how an already-committed wrong is a reason… for P to make D suffer. Hart’s

34
Id.
35
Actually, I believe Hart is correct here, and that the instrumental value of crime-prevention does most of the
work in a theory to justify punishment. Negative desert provides a reason to punish, but the reason is usually very
weak and is easily swamped by competing considerations. Deterrence provides the positive reason to treat
offenders as they deserve and to punish them. For further thoughts, see Douglas Husak: “Retributivism in
Extremis,” Law and Philosophy.
36 nd
John Gardner: “Introduction,” in H.L.A. Hart: Punishment and Responsibility (2 ed., 2008), p.xxvi.

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defence of punishment does not meet this adequacy condition.”37 Of course, Hart cannot
respond by helping himself to the definitional stop of which he has been so critical elsewhere.
That is, he cannot appeal to that part of his definition that limits punishments to a real or
supposed offender. Nonetheless, I suspect Gardner’s accusation is a bit strong. If he were
correct, all pure utilitarian theories of punishment would also fail to satisfy his condition of
adequacy. As Gardner is aware, Hart has the resources to identify a positive reason to make
persons suffer: it will further the general justifying aim of crime-prevention. But Gardner
dismisses this answer because it assigns a purely instrumental value to the importance of
restricting punishment to the guilty. Must a respectable theory of punishment show the
contrast between guilt and innocence to be intrinsically important? Perhaps. In any event, my
point is different. I claim that the only answer Hart has the resources to provide indicates that
the considerations that apply to questions of distribution are not unlike those that pertain to
the general justifying aim of punishment after all. The only reason to distribute punishment to
the guilty depends on whether the general justifying aim of the institution is furthered thereby.

Thus the two topics about punishment distinguished in Hart’s framework---general

justifying aim and distribution---cannot be separated nearly as cleanly as he seems to suppose.
First, we cannot hope to identify for what we are trying to provide a general justifying aim
unless we make some assumptions about how punishment is to be distributed. Second, we
have no hope that a system of punishment can be justified without some indication of what is
to be punished---that is, what persons are to be punished for. Moreover, controversies about
the severity of punishments are intimately connected to questions about general justifying aim.
Finally, the only answer Hart can offer to why punishment should be imposed on the guilty---his
distributive issue---appeals to the goal of the system as a whole---his general justifying aim. If I
am correct, Hart’s efforts to justify punishment blend together the very questions he believes it
so important to distinguish in the framework he has constructed.

CONCLUSION
37
Id., p.xxv.

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 In my more uncharitable moments I am inclined to believe that Hart’s contributions to
the philosophy of criminal law have been exaggerated. It is hard to capture his main insight,
and little of the Prolegomenon can withstand critical scrutiny. If I am correct, Hart did not
understand what it is about punishment that requires justification, and thus could not have
been expected to offer a defensible theory in response. In not providing a reason to punish the
guilty, rather than a reason not to punish the innocent, it is arguable that he fails to meet a
minimal condition of adequacy that any respectable justification of punishment must satisfy.
Finally and most importantly for my purposes, Hart’s contrast between the general justifying
aim of punishment and its distribution, which forms the centerpiece of his normative
framework, is nowhere near as sharp as he seemed to suppose, and in any case cannot begin to
hold the normative weight it is asked to bear. In light of these several fundamental problems, I
can only conclude that Hart’s efforts to provide a normative framework in which to justify
punishment are a spectacular failure on nearly all fronts.

But this conclusion unfairly denigrates the greatest legal philosopher of the 20th century.
In evaluating the Prolegomenon, it is crucial to recall what legal philosophers had been saying
about punishment prior to the publication of Punishment and Responsibility. Unless we include
the greatest philosophers in history---Plato, Aristotle, Kant, Hegel and Mill, for example---it is
difficult to think of many essays in criminal theory prior to Hart that still are worth reading.
Contemporary material on the philosophy of punishment must begin with Hart. Here, as
elsewhere, it is all too easy to underestimate the genuine contributions of ground-breaking
work on which so many others have had the good fortune to build.

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