IURI412

Exam
Notes
Legal Philosophy

Hein Steenberg
 Study Unit 3

Chapter 6: Just Distribution of Resources

Utilitarianism

❖ Developed by 2 British Philosophers: Jon Stewart Mill and Jeremy

Bentham.
❖ Comprises of the concept that acts are right, if they promote the greatest
amount of happiness/ Utility
❖ Utilitarian theory of value:
➢ What is utility or happiness for utilitarianists? – Bentham states that
it is the quantity of pain or pleasure experienced.
➢ However, Mill emphasises that both the quantity and the quality of
pleasure must be taken into account – He refers to higher pleasures
(Intellectual- music) and lower pleasures (Physical- eating).
➢ Utilitarianism does not promote abstinence from lower pleasures

Utilitarian Principle and Operation

Maximising principle: Achieving the most amount of happiness (Utility)

giving weight to individuals.
Different from the principle of the egoist, as the egoist focuses on the
promotion of greatest happiness for themselves
Individuals must act towards that what promotes the greatest amount of
happiness, irrelevant of whose happiness it is.
Utilitarianism can be applied on an individual level or on an inclusive
level (Decisions of society and state)
 Utilitarianism thus involves the weighing of interest with the
consequences
A sadist, for example, will derive pleasure from murder and theft

Utilitarianism and Fundamental Rights

Consider the following scenario:

Joe is a homeless person with no family. A murder is committed in the
community and the community believes that a Nigerian committed the
murder and a series of xenophobic attacks occur. The police are under
pressure to arrest someone and decides to use Joe as their scapegoat,
even though he is 100% innocent.

Arguments against Utilitarianist theory

➢ Most people would object to this treatment; Joe is innocent and
can not be found guilty to provide the greatest happiness to
everyone involved.
➢ Joe’s section 12 Rights have been infringed upon 9Right of
freedom of the person)
➢ Happiness is maximised in this scenario:
➢ Utilitarianism, therefore, has a problem with recognising basic
Human rights.

Arguments for Utilitarianist theory

→ Police were not doing their work properly

→ If this had to be know by the public, they would feel even less safe.
→ They would recognise that the police would basically just arrest any
innocent person for the sake of the greater good
→ Mill’s reply to the issue: When looking at utilitarian calculations
(Outweighing), a strong weight must be placed on the side of the
individual, as this will protect his/her rights.
→ For Mill, utilitarian theory is 100% compatible with fundamental rights
→ Mill states that human rights are the things that maximally benefits
society
 → If we are to realize the greatest happiness, it is important that we realize
people’s individual human rights

Alternative Version of Utilitarianism:

➢ Rule utilitarianism: Look at matters in a wider way and attempt to

develop rules or principles that are justified by utilitarianist theory and
covers most individual cases.
➢ Eg: Most people are scared of wrongful arrest- such a society therefore
has low utility.
➢ We thus develop the principle that individuals are free from arbitrary
arrest, as this will provide the highest form of utility. The high to low utility
must then be balanced.
➢ However, this form of utilitarianism also has its fallacies:
➢ For example, if the majority of a society holds the belief that gay is
wrong, then the happiness maximisation would occur if that state would
disallow it
➢ Still at conflict with fundamental rights

Justice as Fairness- John Rawles

❖ Famous for the 1971 book “A Theory of Justice”.

❖ “Original position”
❖ Where do principles come from? – Rawles considered the
following:

1. Religious authority: However, religion and principles differ

2. Notion of natural law: However, still difficult to identify and there
are still fundamental disagreements as to the substance of these
laws.
3. Agreement between people under fair conditions
➢ Can take the form of a constitution
 ➢ “Social contract”.
➢ Rawles believes a fair process should be set up to
establish free and fair agreement
➢ “Well ordered society”: Society established on fair terms
and co-operation between citizens.
➢ People living in such a society must have a capacity for the
sense of justice and the capacity for having a conception of
good.

Original Position

 Individuals are born into a where the free terms were agreed upon by
free and equal citizens.
 “Constitutional convention”
 What would you agree to if you were trying to do the best for yourself
but still wanted to co-operate on fair terms with others?
 However, Rawles states that this kind of disposition would be unfair
today because of differential power positions:
1. Differential power positions: There will be now agreement if a
person in a higher place will be placed lower by the agreement.
❖ Someone with specific talents, sometimes receives better
financial advantages from that talents.
❖ “Arbitrariness”.
❖ Rawls contends that the original position agreement must
be made excluding the information behind a veil of
ignorance.

⧫ Thin Conception of good: What all humans must generally value, and
not subjectively value.
⧫ There are primary goods that are important to people, health being an
example.
 → Social primary factors include: Basic rights and liberties,
Freedom of movement and occupation, self-respect,
income and wealth.

Utilitarianism rejected by Rawls and the alternative put forward

⧫ Rawls rejects utilitarianism, as it does not provide for sound reasoning-

one could land everywhere and anywhere if the veil of ignorance is in
place.
⧫ However, he puts forward 2 principles that can be put into place that
would be accepted under the original position doctrine:
1. Each person has an equal claim to a fully adequate scheme of
basic rights and liberties, compatible with a like scheme for all
(equal basic liberties principle)- Very much socio-economic in
nature.
2. Social and economic inequalities are to satisfy two
conditions: they are to be attached to positions and offices open
to all under fair equality of opportunity (fair equality of opportunity
principle) they are to be to the greatest benefit of the least
advantaged (difference principle).

Read Page 155 of the textbook- This really provides an in-depth look at the
original position reasoning, especially the reasoning with mobile phones!!!

In essence: The outcome of the original position:

Rawls provides a theory of egalitarianism combined with liberalism.
Equal protection of rights and liberties.
Material inequalities are only allowed when they are to benefit the least
advantaged
With the factors of the veil of ignorance and primary goods
→ Through which fair agreements can be concluded between
persons
 Implication of Rawls’ theory of the distribution of resources

❖ Rawls recognise that one needs certain resources for freedom to really
matter.
❖ As an example- if someone is starving from a lack of food they will not
participate in political life.
❖ If someone suffers to such an economic extent (When there is a great
difference between rich and poor), the government would be obliged to
give resources to those persons as a matter of priority- Difference
principle
❖ How much however distribution of socio-economic resources is to the
best advantage of the least advantaged? -Great difficulty with the
difference principle, as it does not set guidelines as how to determine
this.
❖ Depends on the viewpoint of the capitalist and the socialist-
Capitalists would argue that it lifts a large amount of people from
poverty, while socialists would argue that the littlest amount of poverty is
a fair amount of resources.

Concept of a social contract

❖ Rawls’ theory differs from the concept of a social contract, in the sense
that the social contract is a contractual relationship people are bound by
❖ For example, voting for the parliament allows an express contractual
relationship to arise between people and the government.
❖ There can also be a tacit consent of a contractual relationship- meaning
that people agree to the “terms” of the contract by living in the country.
❖ However, how do we determine what is consented to and what not?
Does people born in 2001 tacitly consent to the constitution promulgated
in 1996?

❖ Rawls avoids these problems: he provides for a hypothetical contract/

agreement and not an actual contract

❖ It models two things:

a. It imagines what fair conditions would be for reaching an
agreement (With reference to the socio-economic and
other forms of fairness)
b. People are put behind a veil of ignorance: no matter
whether they are rich or poor, they must put themselves in
the position of all the parties, black, white, rich poor and
any other classifications that may exist and then reason as
to what would benefit all these classes the most.

The Distribution of Natural talents

Rawls’ view said that natural talents arise from a natural lottery and
therefore no one deserves the talents they have.
Ideally, no economic benefit must be obtained from these talents.

Robert Nozick critiques this view, arguing that natural talents are not
arbitrary and does not automatically lead to injustice.
For example, giving students the same high grade, 90% for example,
would render the grading system pointless.
Similarly, wealth is treated in this way by Rawls: It is unconnected to the
person and falls from the heavens

Nozick, however, contends that wealth is fundamental to the past way in

which it was acquired.
 The example here is as follows: Imagine a hundred people has R1000.
If someone has a comedy show and all 99 people are willing to pay
R100 for the show, then all 99 people will have R900, while one person
(the person hosting the show) will have R10 900.
While the person who now has R10 900 does not necessarily deserve
the talent, people voluntarily transferred the money to him/ her.
The new distribution of wealth is now unequal, but it is just and fair.

Theories of justice in an African Context

▪ Ubuntu- The basis of African philosophy?

▪ We only realise our true potential as a real person through the manner
we relate to other people.
▪ Ethics does not begin with the individual, but rather starts at the
relationship between people.
▪ To understand the obligations of ubuntu, Metz suggested that it relates
to two dimensions:
1. Identity: Identify or conceive ourselves to be a part of the same
group.
2. Solidarity: State where people are sympathetic towards one
another

Relationship between the Individual and the Community in an African

context:

Many African communities provided several forms of hospitality to

travellers
The concept of ubuntu can be reconciled with fundamental rights.
Some thinkers have followed the approach that the individual merely
exists as a means to promote the needs of the community.
However, there are 2 main problems with this view:
a. The idea of a “community” in this sense as a group that
remains fixed is wrong- communities differ and change
from time to time and their needs differ.
 b. The prioritisation of the collective over the individual: For
example, if the collective despises same-sex relationships,
then the individual would have to deny their natural
orientation so as to satisfy the collective interest.
Moderate communitarianism- Kwame Gyekye: Recognises the
importance of the communities
Social system that enhances the collective without the degradation of
the individual
Ubuntu then encourages other members of the collective to respect the
fundamental rights of the individual.
Justice Mokgoro states that ubuntu is linked to basic human dignity
The core, is that Africans must act to what is good for others and
not act in a manner that destroys another’s dignity and the
relationships between individuals.

The Spear: The depiction of J Zuma with his genitalia exposed- Contrast
between the view from an African Philosophical point of view and Rawls’
theory:

Rawls African Theory

The picture will be protected under Collective is regarded above the

the liberty for the individual for Rawls individual

The liberty of the artist would Painting would have to be censored,

therefore trump the needs of the but the argument can be made that
community the Zuma, as an individual, must in
the interest of the community respect
the artists freedom as a form of
ubuntu.

Are African views of distributive justice identical to socialism?

❖ Individuals could rely on communal stores if they were starved-Similar to

a system of socialism.
❖ Ethic of care between individuals
❖ Great disparities between rich and poor were not very common.
❖ Gyekye however, contends that the system was not socialist, but had
strong capitalist notions: The notion of land and cattle being in family
ownership as wealth.
❖ Oruka suggests that too much inequality will harm the relationships
between individuals.
❖ African philosophy is thus a torn between the application of a socialist
system and the more moderate form of a capitalist system.

Rectification of Past Injustices (Chapter 9)

For many countries, rectification is a constitutional imperative- it is the

mission of new constitutions to rectify past injustices.
Four distinct set of norms:

1. Who should the state compensate?

➢ Many black people should be compensated, but should all black people
be compensated?
➢ Are the current black generation also rightful beneficiaries?
➢ Thomson points to two aspects that need to be taken into account:
➢ The situation of black people has been significantly improved since
apartheid
➢ The new generation have not been wronged at all

➢ However, Thompson sees this as false; Previous wrongful treatment

leads to present disadvantages- financial disadvantages being one of
these examples.
➢ Black people that were wronged form part of a group- segregation was
not against a single black person, but against the group- Black people
find identity within the group and that leads to collective compensation.
➢ Negative consequences ciphers through generations: Self-doubt, lack of
self-respect and lack of confidence passes from one generation to
another.

2. Strategic: how should the state rectify?

❖ Who is liable to compensate?

❖ Thompson holds that it is not young, white males, but rather the
community as a whole.
❖ Thompson holds that, historical injustices as a whole, is best understand
in corporate rather than individual terms- they are not individual acts.
❖ A group may be liable, even though their personal members are not
liable.
❖ Thompson then uses this to that young white male might be partially
liable as a part of the group; the young white male did after all benefit
from the system
❖ Heightened confidence, self-worth and has a competitive advantage in
obtaining public goods as a result of this.
❖ Thus, the young white male should bear some costs of compensation.
❖ Interesting philosophical side note: If a young white male is homeless, is
he still liable as a part of a group? Gap in Thomson’s theory?

3. The extent of the rectification

Financial compensation in the form of a tax/ levy would not impose

such an onerous duty and would still allow for equal employment and
educational opportunities.
Based on the idea that black people lost self-respect, Thomson prefers
preferential hiring above financial compensation, and gives 2
reasons for this:
 1. Financial compensation is unlikely to restore self-respect

2. Being in possession of a job and performing well in that

job will much more likely restore self-respect.
➢ The link between self-respect and a job: People obtain
a wage to buy basic necessities and it gives one a
sense of independence, leading to a sense of fulfilment
and meaning.
➢ This inevitably heightens the feeling of self-respect.

3. Justification: Why seek to rectify at all?

➢ Black people have been wronged and will continually not be an optimal
part of the community if this is not set right.
➢ Black people had significant impacts on their life; the loss of self-respect
and basic financial means being the most tangible.

Summarising Thomson’s defence of preferential hiring

 Based on 4 premises:
1. Black people have been wronged as a group and must
therefore be compensated
2. The community as a whole, not individuals, must compensate
black people
3. In order to compensate, the young white male must justifiably
also help with compensation, as he benefitted from the
previous wrong
4. The best means of compensating black people is by infringing
the right of the white male.

Critique of Thomson’s view

⧫ Suppose a construction company fixes my driveway instead of my

neighbour’s.
 ⧫ The neighbour suffered harm as a result, but does that mean I am liable
to compensate him?
⧫ I do not owe my neighbour anything, as the benefit is involuntary.
Similarly, the white male, whose position is involuntary, can not be
liable to compensate.
⧫ Thomson incorrectly applies the principle of compensation, as this
principle requires the offending party, not the involuntary, to
compensate the offended.
⧫ In relation to point 4 above: Is the best means of compensation really by
infringing another’s right? – Almost definitely not.
⧫ Does it make sense to steal money from one person in order to give
that stolen money to the other as a manner of compensation? -Most
definitely not.

Maphai: Rectification and Social Utility

❖ Consequentialism: Action that produces the best overall result is the

best action.
❖ According to Maphai, the main aim of preferential hiring is to
promote black advancement, which will yield positive
consequences of the society as a whole.
❖ Policy of rectification is based on a future likely outcome.
❖ Black involvement will also have a stake in the survival and efficiency of
public institutions and therefore will help the survival of these institutions
that prevents economic collapse.
❖ Maphai’s justification of affirmative action and preferential hiring is
forward-looking; it looks at the future and not the past like Thomson.
❖ Maphai’s theory also does not promote the infringement of the rights of
young white males (See below why it still does)

Difficulty with Maphai’s theory: If the policy of rectification is based on a likely

future benefit, would it lack justification if that future benefit is not obtained?
 ➢ Maphai, however, argues that some of these policies may even be
justified when it is ineffective: There is a difference between
effectiveness and justification.
➢ For example, would the bad/ineffective implementation of human
rights by the state have the cause that the human rights are not
justified?
➢ No- Human rights are justified, even when it is badly implemented.
➢ Race and gender can be justified bases of selection: After all, a
character playing King Shaka can not be white, as this would not fit
the identity of the character.
❖ While Thomson’s theory brings about an unavoidable cost to the young
white male, it seems That Maphai’s theory is not much better at avoiding
this cost:
a. Anticipated future benefits come at a large cost:
Torturing 50 people to save 2000 is an “anticipated future
benefit”, but condones 50 to torture, irrespective if only one
of the 50 is guilty and the rest are innocent. (Correlative
disadvantage for the 49)
b. If the goal is black advancement, then the policy of
preferential hiring does not on the face of it benefit the
young white male and overrides his right to equal
treatment- leading to correlative disadvantages.

In conclusion to the above theory: Thomson offers a backward-looking

theory of rectification, while Maphai’ provides a forward-looking theory. It seems
as if neither the backward- or forward-looking theories are promoting advancing
black advancement without cost to a party (The young white male in this case).

Ubuntu, rectification and the land issue: Metz’s theory

Land has been a common topic of struggle, especially in the past few
years.
 Black people’s land was historically taken away from them and given to
white people.
Should black people who were historically dispossessed of their land be
given back what were once theirs?
Metz uses the ubuntu theory to answer the question: How do we
rectify unjust land dispossession in a way that honours harmony
(Ubuntu)?
Metz’s theory combines the theory of Thomson and Maphai.

Ubuntu moral theory with regard to land dispossession: The legislated

dispossession of land was a contravention of the harmony required by ubuntu.

❖ The theory therefore entails that land must be returned, but future
considerations are also important.
❖ The ubuntu moral theory, therefore entails that black people standing to
be compensated must be trained and financed by the state.
❖ The state is also not justified to expropriate land from all white people at
once; Especially if it will impact productivity.

❖ Critique: As Metz states that the state should only compensate if doing
so would realise wider social benefits, then it implies that rectification
only can take place when it is prone to deliver greater economic
benefits.

❖ If white people would then deliver the greater benefit to the economy,
would it not make sense to keep in possession of the land?

❖ Seems like realising goals are a prerequisite for restitution in Metz’s

theory.

Ntsebeza: The incompatibility of the Expropriation- and Property clause

 ⧫ Holds the view that the constitution’s imperative to protect property
ownership and the promotes the expropriation as a manner of
rectification, is impossible.
⧫ He believes this slows the progress of rectification.
⧫ The state is (1) reluctant to invoke the property clause and (2) even of
they invoke it, it remains difficult, as a market value must be paid for the
property.
⧫ Judge Antonie Gildenhuys provided a way in which the expropriation
amount can be calculated: Market value- present value of subsidies.
⧫ Ntsebeza also notes that there is massive delays and legal costs when
farmers exercise their property rights when faced with expropriation- this
lengthens the rectification process.
⧫ Is there really incompatibility between the 2? The answer tends to be no;
they are reconcilable.
⧫ Never will this promote reconciliation between the advantaged and the
disadvantaged.

Emily Mawhinney’s theory of Restorative Justice

 Theory was developed in the light of the Rwandan genocide, where the
Hutu murdered 800 000 people from the Tutsi minority
 The immediate response after the slaughter and the establishment of
another government (RPF), was to reckon with the horrific past through
three instruments:
1. International Criminal Tribunal for Rwanda
2. Rwandan National Court systems.
3. Gacaca (Means act of sitting down and discussing things).

 Similar to the South African TRC

 Aim is restorative justice through a dialogical triad
 “Dialogical triad”: A way in which three parties, the victims, offenders
and the entire community can indulge in a truth-seeking endeavour.
 Face-to-face encounters are possible; perpetrators offer apology and
seeks forgiveness
 The important aspect about this form of rectification, is that it does not
force one party to compensate the other
 It is the adoption of norms that aim at reconciliation and the healing of
relationships between individuals and communities.

 However, these systems of rectification do have their problems

 For one, public support is always low of such processes, while the
neutrality of the commissions will always be at question.
 Study Unit 4: Why Punish the Guilty?

❖ There are 2 types of theories regarding punishment:

1. Forward- Looking: Which penalty would be morally right to give

now. Punishment will only be right if it would bring about good
consequences in the future.

2. Backward- looking: Look into the past to ascertain whether it

would be justified now- Look at the nature of the crime and
proportionally punish the guilty.

The South African system is a hybrid of these two lines of thought on

punishment.
The South African law also recognises the principle of recidivism:
Where a criminal has been punished and then repeats the crime, then
there will be a stronger or harsher penalty the second time the criminal
commits the same crime.

Forward-Looking Theories of Punishment’s Justification

1. Utilitarian Theory of Punishment

❖ Jeremy Bentham- British Philosopher

❖ “Punishment is justified if it minimises harm and maximises the benefits
in the long run”
 ❖ Therefore, some types of punishments are also justified, in the sense
that they provide more of a minimisation of harm and a maximisation of
pleasure (Benefit) in the long run.

▪ Bentham provides three ways in which this can be achieved:

1. Incapacitation: Taking away the physical power of offending

2. Reform: Taking away the desire of offending
3. Deterrence: Making them afraid of offending

Bentham places specific emphasis on the concept of deterrence, as by

striking fear into other members of the society it makes it more
improbable that they will commit the same crime in the future.
“Utilitarianism”: Greatest good principle- The correct way to deal with
something is by ensuring that the action creates the biggest possible
good.
Even though this theory will not benefit the offender, it provides the
greatest good towards society.

Understanding Bentham’s Three ways of Benefitting society in the long

run

1. Incapacitation: Imprisonment as a clear example, however, a

fine is not relevant to incapacitation, as a fine does not provide
a form of incapacitation.
➢ Imprisonment provides for the physical restraint of the
victim and therefore incapacitates them.

2. Reform: Reforming an offender’s character to the point where

he/ she has no desire/ interest to do any harm.
 → Threat of punishment or the physical imposition of
punishment can take away an offender’s desire.

3. Deterrence: Making the offender afraid of offending.

➢ Deterrence of the society at large and not usually
specifically the offender justifies this.

Exceptions

❖ Bentham provides no argument that punishment of a victim is always

justified.
❖ Exceptions he provides:

1. Where crimes would occur even if the offender was punished-

People will not be deterred by his/her punishment.

2. Where punishment would prevent crime, but the good effect of

the punishment is drowned in the negative that comes with the
punishment.
→ As an example, it is pointless to sentence a person to
jail for 3 years if that person stole R40 000, but the
yearly cost to keep someone in jail is approximately
R50 000. The “bad” of the punishment then outweighs
the “good” thereof.

3. The good resulting from the punishment could have been

obtained by leveraging a less harsh punishment.
→ If you could simply provide counselling for someone and
it would rectify the prisoner, why imprison that person?

Evaluating and concluding the Utilitarian Theory

➢ Forward looking theories of punishment normally motivates the

continuation of that punishment/ justice system.
 ➢ The utilitarian theory sometimes allows people to be punished more
harshly than they deserve.
➢ For example, a utilitarianist may condone harsh punishment for petty
crimes, provided that deterrence occurs. Taxi drivers changing lanes
without using their indicators can be sentenced to life imprisonment, as
this will prevent other taxi drivers from driving that way.
➢ Example:
➢ Utilitarianist theory also could allow for a man to not be punished for
killing his wife if his punishment would not deter people.
➢ If that same man shows extreme remorse during the trial, it would be to
the benefit of society for that man to not be punished.
➢ If the punishment of the man would not deter people, it does not make
sense to punish that man, as it would cause even more harm.
➢ Harm: It would cost massive amounts of money to imprison that man.

Crux of the reasoning against this forward-looking theory of justice:

✓ If someone subjectively knew an offender would not have a change of heart

(repentance and remorse)- Reform
✓ The man would cause more harm in jail to police officers and other
inmates- Incapacitation
✓ His punishment would go unnoticed and not deter others- Deterrence
✓ This would be enough grounds not to punish that man according to the
forward-looking, utilitarian theory of justice according to Bentham.
✓ If you follow the line of thought that this is scenario is a reason why that
person must be punished more harshly, you will incline towards the
backward-looking theory of justice.

Backward-Looking Theories of Punishment

❖ NB! The strengths of forward-looking theories of justice are the

weaknesses of the backward-looking strengths of justice and vice versa.
❖ Forward-looking theories have strong justification for maintaining a
punishment system, but with backward-looking theories this is more
difficult.
❖ Backward-looking theories do not appeal to any thing, as the harm it
creates greatly outweighs the good
❖ As an example: Spending Thousands of Rands to let the offender suffer
creates more harm than it does good.
❖ Proportionality is inherent to backward-looking theories: A Murderer
must be punished more harshly than a petty thief.
❖ Retributive theories: Requires a judge to look into the past to look at the
nature of the crime and then punish that offender according to that, without
looking at the balance of good vs Harm inflicted by the punishment.
❖ Why should the state inflict a proportionate penalty? “Desert”-
Someone must be punished the same as the punishment for not studying is
a low mark.
❖ Fairness: This curbs the advantage the offender has received as a result
of the crime- Criminal will have a unfair advantage.

Jean Hampton: Expressive Function Theory of Retribution

❖ Core: State punishment is justified, as it is a sign of disapproval towards

the offender that degraded other people.
❖ The state must therefore show disapproval to affirm the superlative
inherent dignity of victims in the face of mistreatments from offenders.
❖ Hampton states that victims do not need mere compensation for what
has been done to them; They also need Recognition for the fact that
they have been degraded (Respect).
❖ If offenders were to be acquitted, then that technically means they are
not treated as legal subjects, but as animals with no accountability.

Problems with Hampton’s theory

 Why can only punishment adequately express respect for the victim?
  For example, will a festival for the victim in the absence of the offender
really give back respect to the victim?
 For example, monetary compensation of a murder victim’s family will
not bring about respect; Would rather allow murder for money.

 Hampton’s symbolic view of punishment: Are symbolic punishments

really worth the harm?

Evaluating and concluding the backward looking theories of justice

→ Punishment is universally accepted to fight serious
crime
→ Therefore, backward-looking theories struggle to morally
justify punishment as it is not to prevent crime in the
future, but rather on punishing the victim.
→ Crime must be fought using non-punitive means

Reconciliation through Punishment

▪ Should offenders be punished less?

▪ South African Reconciliation act- forbade the punishment of those guilty
of Human Right violations during Apartheid (Amnesty).
▪ When offenders did not confess at the TRC, they were able to be held
liable for their crimes according to criminal law.

Tutu’s Defence of Reconciliation

✓ Makes two main arguments for reconciliation for the TRC’s approach
(Truth- and reconciliation committee.
1. Ubuntu
➢ Human beings are capable of relating to one another in
ways no other beings can.
 ➢ When people are not exercising ubuntu, may indigenous
communities would say that person is not human
➢ One becomes a real person “through other persons”.
➢ Social harmony- we must be party to harmonious
relationships in society.
➢ This social harmony includes generosity, hospitality and
compassion- Caring for others’ quality of life.
➢ You may not have a better human life, but will be a
better person through this.
➢ Therefore, do not punish offenders if they are willing
to confess their misdeeds and they are willing to not
do it again.
➢ These people may then be willing to compensate their
victims- Places a price on crime maybe?

2. Restorative justice
→ Is a more personal approach than seeking retributive
justice.
→ Backward-looking theory of justice is inapt- does not
seek to do good the offender any good and does not
compensate the victim at all.
→ Must rather repair the broken relationship between the
parties, victim and offender.

❖ However, Tutu does not use a utilitarian justification of punishment.

 Different to the utilitarian outlook of individual pleasure.
 Utilitarianism would punish offenders to promote the greater good,
while Tutu’s theory focuses on rehabilitation of offenders.

Evaluation of Tutu’s theory

Tutu states that reform must take place in the place of punishment, but
often reform is more likely after punishment has taken place.
 Critique: Commentators still holds that punishment is needed for
retribution.

Death Penalty in South Africa

❖ On the face of it, it would seem that both backward-and forward looking
theories justifies the death penalty.
❖ Utilitarian view: Bentham addresses the death penalty and argues that
is not a utilitarian principle:
➢ Capital punishment is not needed to incapacitate criminals- Can
be done by mere confinement.
➢ Criminals are more likely to risk their lives and therefore
deterrence is also not achieved.
➢ About 90% of modern criminologists believe that death penalty is
not an effective way to prevent homicide any more than
➢ Retribution Factor: Proportionately, the death penalty may be
fair- Kant also endorsed this.
➢ Hampton argues against this: Fitting penalties are apt to
counter the degradation of the victim by the offender.

Arguments against the death penalty: The Concourt’s view.

❖ Concourt (Mokgoro and Langa) describes another form of Ubuntu: It

prescribes respect for human dignity
❖ However, the prescription of respect and social harmony can be
reconciled in theory

❖ Arguments against these views:

1. Capital punishment is not necessarily degrading (Can be
seen as respect towards the offender who made the free, but
wrong choice).
 2. It is on the whole morally justified: It would be morally
justified to shoot a would-be killer, if such a person for example
pulls out a knife with the intent to stab and kill you.
 Is self defence analogous to killing an offender?
 Mokgoro states that it isn’t, as executing an offender
does not save an innocent life.