Is It Really a Rule Without Punishment?

By: A. Lu

Your parents say that 11 pm is your bed time, but they don’t punish you if you don’t go to bed by 11pm, so is 11 pm really your bed time?

Introduction

The question of whether 11 PM is really your bedtime if your parents do not punish you for staying up later can be explored from various angles. If we consider a family as a small society, then the rules within the family can be seen as its legal system, with "going to bed by 11 PM" functioning as a rule in this micro-society. The absence of punishment brings raises the issue of whether a legitimate society can exist without punishment. This essay argues that 11 PM isn't genuinely your bedtime if there’s no punishment because a system of law or regulation requires enforcement mechanisms to be effective.

I endorse the view that punishment serves a communicative function (Antony Duff, 2011), and that punishment itself is a central part of the message we as a society try to communicate. Second, I argue that an alternative to legal punishment such as a system of pure-restitution is insufficient. Third, authority, both within a government and within a family, is essential for maintaining order and compliance. The source thesis and the theory of implied consent demonstrate that authority stems from trust and the provision of benefits, creating a continuous and reciprocal relationship between the authority figure and the governed. This authority necessitates the enforcement of rules through punishment to be effective.

Communicative Retributivism

How do we justify punishment? According to Bentham (1789), punishment is a means to exclude greater evil. Such consequentialist account is one of the most classical ways to justify punishment. There are other justifications such as retributivism. However, here I endorse communicative retribution, as it can better answer the two main questions facing any justification of punishment: why and what does the offender deserve to suffer, and why the government should administer punishment? 

It is undeniable and obvious that because the offender committed wrongdoing, they deserve condemnation. A crime affects the whole society, so the offender deserves condemnation from the entire public. This also answers why the government should administer punishment: the harm done impacts the whole society, and thus only government-imposed punishment can satisfy societal condemnation.

Punishment as communication means that the purpose of punishment is to convey the censure or condemnation that offenders deserve for their crimes (Bennett, 2008). It is a bidirectional transmission between the victim, society, and the offender. The primary audience of the condemnatory message is the offender, although the broader society may be a secondary audience (Duff, 2001).

Punishment expresses societal feelings. For instance, if an offender robs an innocent person and is caught, they need to receive punishment to understand their wrongdoing and rectify it. This induces guilt, fear of being punished, and regret in the offender, while also satisfying public anger and resentment. Punishment communicates to society and the victim that justice is served, and that we are right to feel these emotions.

I want to stress that the audience of the punishment is both the victim and the public, not only the victim herself. A pure retributivist account focuses on the relationship between the victim and the offender but does not place enough emphasis on the public dimension of the crime. Communicative retributivism, however, involves the entire society by expressing collective emotions. Aristotle posits that a virtuous act involves repetition and internalization. Thus, if communication enhances societal condemnation of offenders, moral education follows, deterring future crimes and reinforcing societal norms. 

There is an objection that suggests other ways of communication, such as court discussions, without the need for harsh treatment (Feinberg, 1970). However, this objection is weak, as harsh treatment is a crucial element of moral communication. Mere words are insufficient; anyone can express anger, but without causing difficulty or harm to the offender, the impact is minimal. Harsh treatment, however, causes actual harm, inducing fear and deterring both the offender and potential future offenders, making it a more efficient means of communication.

Objections to pure-restitution 

Pure-restitution means restoring the victim to the state they were in before they were harmed (David Boonin, 2008). According to Boonin, pure-restitution is a system that could replace punishment. However, there are two main problems with this approach.

First, pure-restitution cannot satisfy the victim's desire to see the offender punished. While pure-restitution aims to compensate the victim to their pre-harm state, it overlooks an essential aspect of recovery: the emotional need for the offender to suffer. For instance, a rape victim may feel extreme hatred towards the offender and have a need, beyond physical and mental compensation, to see the offender punished. This need is a direct result of the crime which did not exist before the harm occurred.

The victim's need to see the offender suffer is justified and reasonable. John Rawls' concept of the "veil of ignorance" (1971) suggests that even if one entertains the possibility of being a potential future criminal, they would agree to punishment because it is reasonable. A logical person designing a legal system behind the veil of ignorance would choose to include punishment along with basic restitution. Pure-restitution focuses solely on compensating the victim, but this alone does not provide enough deterrence to prevent future crimes. To make offenders recognize their wrongdoing, something beyond mere compensation is necessary. Although Boonin claims that pure-restitution can also serve as a deterrent, this may involve punitive elements that contradict his theory. Thus, pure-restitution alone is insufficient for preventing future crimes.

Second, Boonin argues that the offender does make up for the mental harm and other non-physical harm done to the victim and the public, but this misunderstands the irreparable harm objection. The problem with pure-restitution is not the degree or extent of the wrong but the type of wrong and the corresponding result the offender would receive. Pure-restitution is fundamentally about compensating the victim, whether though financial compensations, therapies, increased security, or other means. However, it is certain that these would do not involve causing physical harm to the offender.

In cases of severe bodily harm, such as rape or murder, physical punishment to the offender can be a reasonable thing to ask for. It is indefensible that this should contradict the theory of pure-restitution.

Justifying Authority

The two questions of punishment are why the offender deserves to suffer and why the government should administer punishment. The latter concerns the issue of authority. As I argued earlier, a legal system requires punishment to function. This section will demonstrate that there is authority between the government and the people, as well as between parents and children. If there is authority, there will be laws and obedience, necessitating punishment. If there is no punishment for not going to bed by 11 PM, then 11 PM isn't truly your bedtime.

What is authority? By definition, it is the right to command obedience. However, there is a difference between power and authority. Robert Wolff (1970) introduced the concepts of de facto and de jure authority. The former addresses what "is" while the latter deals with what "ought" to be—namely, that authority is justified between people and the government, as well as between parents and children.

What is the source of authority? The source thesis posits that authority comes from the source, not the content, of the law (Friedman, 1973). This means we generally obey laws because they are made by the government, not necessarily because we scrutinize each law's content. We trust the government's authority, feeling that breaking the law is inherently wrong. This trust and obedience illustrate the government's authority over us.

But where does this authority come from? According to the social contract theory, in the absence of laws and hierarchy, people lived in a state of nature (Hobbes, 1642). To resolve conflicts and maintain order, citizens collectively agree to subject themselves to the rule of a powerful state. The theory of implied consent suggests that such agreement can be tacit. Locke (1689) argues that simply by possessing property or using infrastructure like highway, we enjoy the benefit of being a member of the society and therefore tacitly consent to its laws and government.

Similar to this is the authority of parents over children. It is instinctive for children to listen to their parents, but why? Implied consent applies here as well. Parents provide benefits and protection, earning their children's trust and obedience. Just as the government protects our rights, parents support and guide their children, establishing authority through continuous care and protection.

There may be objections that implied consent is not voluntary. However, strong arguments support the idea that the relationship between the government and the people, as well as between parents and children, is continuous and reciprocal. The government provides benefits to the people, just as parents protect their children. To maintain these benefits, people and children follow rules and recognize authority not because they are morally coerced, but because they need to preserve the advantages they receive. This relationship is not a one-off reciprocity but an ongoing dynamic.

Conclusion

The idea that 11 PM is your bedtime, even without punishment for staying up later, hinges on the concept of authority and the necessity of enforcement mechanisms. A system of rules and laws, whether within a family or society, relies on authority and the presence of consequences to ensure compliance. This essay has explored three key aspects to support this argument: communicative retributivism, the insufficiency of pure-restitution, and the justification of authority. 

I have argued that communicative retributivism highlights the role of punishment as a means of conveying societal condemnation and ensuring that offenders understand their wrongdoing. This process not only deters future crimes but also reinforces societal norms and moral education. Second, pure-restitution, while valuable in compensating victims, fails to address the emotional and psychological needs of victims to see offenders suffer consequences. It also lacks the deterrent effect necessary to prevent future crimes. Punishment, therefore, remains a critical component of a functional legal system.

Reference

Friedman, Richard B., 1973, “On the Concept of Authority in Political Philosophy”, in Concepts in Social and Political Philosophy, Richard E. Flathman (ed.), New York: Macmillan. 

Friedman, D.D. (1978) The machinery of freedom. New Rochelle, N.Y: Arlington House.

Feinberg, J., 1970, ‘The Expressive Function of Punishment’, in his Doing and Deserving, Princeton, N. J.: Princeton University Press, 95–118.

Bennett, C., 2006, ‘State Denunciation of Crime’, Journal of Moral Philosophy, 3: 288–304.

Bentham, Jeremy, 1748-1832 (2010) An introduction to the principles of morals and legislation. The University of Adelaide Library. 

Boonin, D. (2011) The problem of punishment. New York: Cambridge University Press. 

Cruft, R., Kramer, M.H. and Reiff, M.R. (2011) Crime, punishment, and responsibility: The jurisprudence of Antony Duff. Oxford: Oxford University Press. 

Friedman, D.D. (1978) The machinery of freedom. New Rochelle, N.Y: Arlington House. 

Hobbes, T., Flathman, R.E. and Johnston, D. (1997) Leviathan: Authoritative text, backgrounds, interpretations. New York: W. W. Norton & Company. 

Locke, J. (2008) Two treatises of government and a letter concerning toleration. Yale University Press. 

Rawls, J. and Scanlon, T.M. (2020) A theory of justice: Original edition. Cambridge, MA: Harvard University Press. 

Wolff, R.P. (2020) In Defense of Anarchism. Berkeley, CA: University of California Press. 

3.29.2026