Hart,+Punishment+and+responsibility,+Prolegomenon+to+the+Principles+of+Punishment

-The paper aims to explain the institution of criminal punishment and demonstrate that it is a compromise between differing principles. -There is a great deal of confusion about the goal of punishment – there is no longer seen as just one – deterrence, retribution or reform. -The general claim that different principles are relevant at different points to explain the goal of punishment is too simplistic -Need to seek answers to questions such as what justifies punishment, to whom may it be applied, how severely may we punish?
 * Prolegomenon to the Principles of Punishment** – L.A. Hart

-An analogy can be made between property and punishment – both are governed by a complex structure of legal rules, an institution with different features calling for separate justification. -Just as with property, we must distinguish between the question of the definition of property, the question of why and in what circumstances it is a good institution and the questions about ways individuals may become entitled to acquire property, must ask similar questions with punishment
 * Justifying Aims and Principles of Distribution**

-Punishment has 5 elements – it must involve pain, it must be for an offence against legal rules, it must be of an actual or supposed offender for his offence, it must be intentionally administered by human beings other than the offender and it must be imposed by an authority constituted by the legal system against which the offence is committed -sub-standard cases of punishment are different -such as punishments in a family
 * DEFINITION:**

-Before moving to justification, we must identify the preliminary question – why are some kinds of action forbidden by law and made crimes? To announce to society that these actions are forbidden and to ensure fewer of them are done -watch out because some laws obscure the distinction between primary laws setting standards for behaviour and secondary ones that specify what officials must do when they are broken (ie fines) we lose sense of what a crime is when we confuse these
 * NATURE OF THE OFFENCE**:

-often there is confusion between the aim of any criminal legislation and the justification of punishment -the aim of criminal legislation cannot be any of the things mentioned as justifying punishment since until it is settled what kind of conduct is to be legally denounced we have not settled from what we are to deter people -the aim of criminal legislation is about setting out types of behaviour as legal standards of behaviour and to secure conformity with them

- retribution, defined as the application of the pains of punishment to an offender who is morally guilty, can be an aim of a system of punishment -As with property, this has two aspects – Liability (who may be punished) and Amount -The question is too why we attach the moral importance we do to retribution in distribution
 * GENERAL JUSTIFYING AIM OF PUNISHMENT**
 * DISTRIBUTION**

-English lawyers once distinguished between “excusable” homicide (ie accidental non-negligent killing) and “justifiable”homicide (ie killing in self defence) whereas to the modern lawyer this distinction no longer has any legal importance – he would consider both as lacking some element of criminal homicide. -morally, the distinction is important -the crime is still deplored but the psychological state of the agent in “justifiable”homicide rules out public condemnation -justification and excuse, though different from each other are alike in that if either is made out then conviction and punishment are excluded. In this they differ from __mitigation__ which presupposes that someone is convicted and liable to be punished, with the remaining question of the severity of his punishment to be decided. -a utilitarian will find that if one kind of crime causes greater suffering than another then a greater penalty should be used if necessary to repress it -mitigation can take place if the mental state of the criminal was such that it seems to affect his actions
 * JUSTIFICATION, EXCUSE AND MITIGATION**

-author’s critique of Bentham’s (utilitarian) perspective on rationale of excuses: -Bentham sets out to provide that to punish the child, the mad, etc, those who break the law unintentionally doesn’t make sense -However, he ignores the impact that punishing those who lack control might have on normal persons (deterrence) -if people are let off for killing in their sleep, for ie, that gives accused people more excuses to plead to getg off easy
 * RATIONALE OF EXCUSES**

1)We may look upon the principle that punishment must be reserved for voluntary offences from two different points of view. The first is that the rest of society is harmed by the offence – and thus ensuring that the suffering of punishment falls upon those who have voluntarily harmed others 2)We can look upon the principle that punishment must be reserved for voluntary offences from the view of society not being harmed by the crime but offering individuals, including the criminal, the protection of laws which are fair and a fair opportunity to keep them to protect society or pay the penalty. A crime as a price extracted because the criminal had the ability to avoid the liability to pay. 3)Criminal punishment as an attempt to secure desired behaviour, a way of deferring action until harm has been done. It announces standards of behaviour and attaches penalties for deviation, leaving individuals to choose. A mode of social control which maximizes individual freedom within the coercive framework of law.
 * Values in the practice of punishment and what we might have to reconsider in light of modern skepticism:**

-principles of justice require that those who have special difficulties to face in keeping the law which they have broken should be punished less. This also relates to mitigation however – the amount of punishment. -penalties in proportion to gravity of offences
 * REFORM AND THE INDIVIDUALIZATION OF PUNISHMENT**

-reform as an objective of punishment is very vague and not ideal -there is a paradox of suggesting reform should predominate in punishment - the main purpose of providing punishment for murder is not to reform the murderer but to prevent the murder - Society is divided into two classes – those who have broken a given law and those who have not yet but may – reforming the offender would forget about the second category

Note: That fun word prolegomenon means “a preliminary discussion, essay” :P