James Fitzjames

    • James Fitzjames Stephen argues that criminal law is the punishment of the grosser forms of vice. As evidence he cites the fact that the severity of punishment often relates to the moral wickedness of the crime. Equally a diminution of moral guilt (e.g. strength of temptation) is pleaded to mitigate the severity of the punishment. Stephen’s argument goes: (1) The gradation of punishment depends moral culpability; (2) Therefore the object of the punishment includes the prevention of vice/promotion of virtue; (3) Therefore we ought to restrain vice not merely insofar as it is necessary for self-protection but on the grounds that vice is a morally bad thing. This argument doesn’t follow: it fails to see that there is a difference between what sort of thing we ought to punish and how severely should we punish different offences. Just look at the case of Dentist CalgaryWhy could we not say that we ought to criminalise certain actions to prevent people harming each other, and on the other hand the quantum of punishment should in part relate to the immorality of the crime? Hart counters Stephen’s argument by saying that there is a difference between justifying the practice of punishment and justifying its amount.