ABSTRACT
A similar veiled utilitarianism underlies Hegers treatment of punishment, as an annulment of the wrong.5 It is not easy to see how a wrong can be annulled: what is done cannot, in a literal sense, be undone. It is possible to make restitution for some wrongs, but this is beside the point, for punishment is the infliction of suffering not the exaction of compensation or restitution. A man may be sent to prison for injuring another, and also be liable for damages. Punishment is not intended to restore the fortunes of the victim. But if it were, the justification would be in terms of the better condition of the victim, or of society in general which would result from the punishment, and, like all utilitarianism, this is forward looking. So also is another Hegelian argument, that the idea of right, which law embodies, would be denied, unless it were reaffirmed through the machinery of punishment. But why should it be re-affirmed in precisely this form? Would not formal condemnation of the wrong principle which the crime exemplified, be sufficient? In evidence to the Royal Commission on Capital Punishment, Lord Justice Denning declared: 'The ultimate justification of any punishment is not that it is a deterrent, but that it is the emphatic denunciation by the community of a crime.'6 But 'punishment' does not mean 'denunciation', nor does the necessity for denunciation, which may coincide with that for punishment, imply a right or duty to inflict suffering on those
denounced. Even if it did, the justification would be utilitarian, since the need for denunciation rests presumably on the need to uphold law for the general advantage.
