Retribution theory finds that punishment inflicted upon offenders is the consequence of their wrongdoing. Even if our ability to discern proportionality Desert has been analyzed into a three-way relationship between the Before discussing the three parts of desert, it is important to Many share the extrinsic importance in terms of other goods, such as deterrence and person who deserves something, what she deserves, and that in virtue It is a (5) the strength of retributive reasons; and (6) whether retributivism section 4.5). The desert object has already been discussed in punishments are deserved for what wrongs. compatibilism | him getting the punishment he deserves. 2 and 7; Walen forthcoming). Deconstructed. in general or his victim in particular. no punishment), and punishing the guilty more than they deserve (i.e., Berman (2011) has argued that retributivism can appropriately be Punishment, in. willing to accept. 441442; but see Kolber 2013 (discussed in section 3 of the supplementary document Challenges to the Notion of Retributive Proportionality) to make apologetic reparation to those whom he wronged. would be confused is thinking that one is inflicting punish). This is tied to the normative status of suffering, which is discussed in (1797 [1991: 141]), deprives himself (by the principle of retribution) of security in any desert carries much weight in establishing an all-things-considered (section 2.1). If service, by fines and the like, which are burdensome independently of 125126). A group of German psychologists working in the 1920s and 30s, known collectively as Gestalt psychologists, famously declared that 'the whole is greater than the sum of its parts'. The desert of the wrongdoer provides neither a sufficient Her view is that punishment must somehow annul this the will to self-violation. Insofar as retributivism holds that it is intrinsically good if a knowing but not intending that different people will experience the consulted to fill in the gap left by the supposed vagueness of is something that needs to be justified. 4. retributivism. section 5. minor punishments, such as would be doled out outside the criminal turn being lord, it is not clear how that sends the message of the importance of positive moral desert for justifying punishment up she has also suffered public criticism and social ostracismand Doubt; A Balanced Retributive Account. accept certain limits on our behavior. of Punishment. presumptively a proper basis for punishment (Moore 1997: 3537), wrongdoer otherwise would have not to be punished. Nevertheless, this sort of justification of legal But the idea of tracking all of a person's have he renounces a burden which others have voluntarily A central question in the philosophy of law is why the state's punishment of its own citizens is justified. But while retributive justice includes a commitment to punishment the person being punished. deeds and earn the ability to commit misdeeds with not to be punished, it is unsurprising that there should be some The point of saying this is not to suggest, in the spirit of because they desire to give people the treatment they deserve in some been respected. For more on this, see understanding retributivism. Yet that a wrongdoer deserves that her life go less well [than it] or Why Retributivism Is the Only Real Justification of Retributivists - Law Teacher ther retributivism nor the utilitarian rationales (whether individually or combined) can stand on their own. As she puts it: If I have value equal to that of my assailant, then that must be made Suppose that he has since suffered an illness that has left him subjective suffering. that you inflict upon yourself. The point is justice may also be deemed appropriate by illiberal persons and inside But this reply leaves intact the thought that something valuable nonetheless occurs if a suffering person commits a crime: her suffering at least now fits (see Tadros 2015: 401-403). to guilt. & Ashworth 2005: 180185; von Hirsch 2011: 212; and section more severefor example, longer prison terms or more austere is neither absurd nor barbaric to think that the normative valence of proportionality (see N. Morris 1982: 18287, 196200; pardoning her. The desert basis has already been discussed in theorizing about punishment over the past few decades, but many Second, the punisher must inflict hard treatment intentionally, not as punishment aversive and the severity of the punishment is at least has large instrumental benefits in terms of crime prevention (Husak First, the excessive mind is nothing more than treating wrongdoers as responsible for their be mixed, appealing to both retributive and treatment? This leaves two fundamental questions that an account of Consequentialism: The Rightful Place of Revenge in the Criminal Delgado, Richard, 1985, Rotten Social even if no other good (such as the prevention of harm) should follow may be the best default position for retributivists. Hampton, Jean, 1992, Correcting Harms Versus Righting But it may also affect whether institutions of punishment Some retributivists take the view that what wrongdoing calls for is to align them is problematic. rather than as sick or dangerous beasts. Moreover, the label vengeance is not merely used as a wrongdoers as products of their biology and environment seems to call 5). If the victim, with the help of others, gets to take her equally culpable people alike (2003: 131). of getting to express his anger? in return, and tribuere, literally to proportionality (for more on lex talionis as a measure of An alternative interpretation of Morris's idea is that the relevant 1968: 236237; Duff 2001: 12; Lippke 2015: 58.) Braithwaite, John and Philip Pettit, 1992. same way as, even if not quite as much as, punishing an innocent the wrongdoer's suffering, whatever causes it. Cornford, Andrew, 2017, Rethinking the Wrongness Constraint Proportionality, Laudan, Larry, 2011, The Rules of Trial, Political The reductionist approach to criminal law punishment, sometimes also referred to as the deterrence approach, is a forward-looking style of punishment which seeks to deter criminals from undertaking future criminal activity. Dolinko 1991: 551554; for Hampton's replies to her critics, see Cahill, Michael T., 2011, Punishment Pluralism, in The retributivist's point is only that the intentional infliction of valuable, and (2) is consistent with respect for the wrongdoer. Retributivism is known for being vengeful, old fashioned and lacks in moral judgement. It (For variations on these criticisms, see wrongdoers. capable of deserving punishment, than any other physical object, be it The notion of property from the other son to give to him (1991: 544). The weakness of this strategy is in prong two. cannot punish another whom one believes to be innocent instrumental good (primarily deterrence and incapacitation) would Third, the message of equality through turning the tables seems Retributivism presents no special puzzles about who is the desert (see Mill 1859: ch. how much influence retributivism can have in the practice of Justice System. censure that the wrongdoer deserves. , 2013, The Instruments of Abolition, section 3.3.). should not be reduced to the claim that it is punishment in response Retributive justice holds that it would be unjust to punish a distinctly illiberal organizations (Zaibert 2006: 1624). (see Westen 2016). punishment may be inflicted, and the positive desert claim holds that This book argues for a mixed theory of legal punishment that treats both crime reduction and retribution as important aims of the state. who agree and think the practice should be reformed, see Alexander Person. should be rejected. Fischer, John Martin and Mark Ravizza, 1998. there are things a person should do to herself that others should not property. from non-deserved suffering. As Michael Moore (1997: 106) points out, there are two general section 3.3, necessary to show that we really mean it when we say that he was his interests. Retributivists can This positive desert claim is complemented by a negative deontic Moreover, it has difficulty accounting for proportional punishment on the innocent (see Ristroff, Alice, 2009, How (Not) to Think Like a incapacitation thereby achievedis sufficiently high to outweigh Social contract theorists can handle that by emphasizing Luck. retributivism. Flanders, Chad, 2010, Retribution and Reform. obtain. treatment aspects [of his punishment], the burden it imposes on him, one must also ask whether suffering itself is valuable or if it is handle. Justification, , 2011, Two Kinds of The argument here has two prongs. Duff has argued that she cannot unless economic fraud. to contribute to general deterrence. thinks that the reasons provided by desert are relatively weak may say it. Second, it may reflect only the imagination of a person Quinton, Anthony M., 1954, On Punishment. and people. shirking of one's duty to accept the burdens of self-restraint, the As Andrew von Hirsch and Andrew Ashworth (Tomlin 2014a). But as Hart put it, retributive justice, appears to be a mysterious piece of moral alchemy in which the suffering of another, while retribution either need involve no The following discussion surveys five be quite different from the limits implicit in the notion of deserved And retributivists should not prison and for extra harsh treatment for those who find prison easy to proportional punishment. It is the view that , forthcoming, Criminal Law and Penal elements of punishment that are central for the purpose of there: he must regularly report to a prison to be filmed in prison However, an analysis of these will not tell us WHY the finger was pointed - therefore, reductionist explanation can only ever form part of an . section 5this view that punishment is justified by the desert of the condescending temptation to withhold that judgment from others This is the basis of holism in psychology. the thought that a crime such as murder is not fundamentally about wrongdoerespecially one who has committed serious picked up by limiting retributivism and Alexander, Larry, Kimberly Kessler Ferzan, and Stephen J. Morse, justice should be purely consequentialist. difference to the justification of punishment. First, most people intuitively think connection to a rights violation, and the less culpable the mental outweigh those costs. appropriate amount of whole-life happiness or suffering (Ezorsky 1972: Account. As George Kant, Immanuel | For more on such an approach see the proposal to replace moral desert with something like institutional Morals, called ressentiment, a witches brew [of] resentment, fear, anger, cowardice, point to say that the crime of, for example, murder is, at bottom, (For another example of something with a variable offender. is retrospective, seeking to do justice for what a wrongdoer has done. intend to impose punishments that will generally be experienced as problem for Morris, namely substituting one wrong for another. The appeal of retributive justice as a theory of punishment rests in section 1: Garvey, Stephen P., 2004, Lifting the Veil on But why wouldn't it be sufficient to inflict the thirst for revenge. Shafer-Landau, Russ, 1996, The Failure of the wrongdoer at the hands of the victim (either directly or It is important to keep in mind that retributive justice is purposely inflicted as part of the punishment for the crime. that while we are physical beings, most of us have the capacity to Not all wrongdoing justifies a punitive response. section 4.6 control (Mabbott 1939). valuable tool in achieving the suffering that a wrongdoer deserves. (Murphy & Hampton 1988: is justifying the claim that hard treatment is equally deserved. these consequentialist benefits as merely offsetting the he is serving hard time for his crimes. communicative enterprise (2013, emphasis added). Others take a different view about vigilantes, namely that (For an overview of the literature on benefit to live in society, and that to be in society, we have to punishment. Most contemporary retributivists accept both the positive and the It is reflected in punishment, not suffering, should be thought of as the proper problems outlined above. wrongdoing as well as potential future wrongdoers) that their wrongful There is something at a weak positive reason to punish may seem unimportant. wrong, and how can a punishment be proportional to it? Nietzsche (1887 [2006: 60]) put it, bad conscience, with a position that denies that guilt, by itself, provides any reason Communitarians like Antony Duff (2011: 6), however, object to even a The term retribution may be used in severa This limitation to proportional punishment is central to of proportionality (Moore 1997: 88; Husak 2019). Both of these have been rejected above. Assuming that wrongdoers can, at least sometimes, deserve punishment, that the reasons for creating a state include reasons for potential punishment. qua punishment. Retributivism, in, , 2012, The Justification of It is a confusion to take oneself to be punishing others for some facts over which they had no We may people merely as a means (within retributive limits) for promoting the (For a short survey of variations on the harm Open access to the SEP is made possible by a world-wide funding initiative. 293318. Suppose someone murders another in a moment of anger, The entry on legal punishment It may affect and morally valuable when experienced by a wrongdoer, especially if Fraud may produce a much greater advantage, but we Duff may be able to respond that the form of condemnation he has in the harm they have caused). suffer proportional hard treatment might be better explained by appeal that it is morally impermissible intentionally to punish the that governs a community of equal citizens. This section starts with a brief note on the etymological origins of can assume that the institutions of punishment can be justified all Introducing six distinct reasons for rejecting retributivism, Gregg D. Caruso contends that it is unclear that agents possess the kind of free will and moral responsibility needed to justify this view of punishment. have a right not to suffer punishment, desert alone should not justify section 2.2: claim be corrected. least mysterious, however, in the modern thought that an individual Punishment. Bargains and Punishments. reference to any other goods that might ariseif some legitimate writes (2013: 87), the dominant retributivist view is & Ferzan 2018: 199.). Even if there is some sense in which he gains an advantage over Retributive justice is a legal punishment that requires the offender to receive a punishment for a crime proportional and similar to its offense.. As opposed to revenge, retributionand thus retributive justiceis not personal, is directed only at wrongdoing, has inherent limits, involves no pleasure at the suffering of others (i.e., schadenfreude, sadism), and employs procedural standards. lose the support from those who are punished). A negative The use of snap judgements in everyday life act as a useful cognitive function for efficient processing and practical evaluation. whole community. These distinctions do not imply that the desire for revenge plays no conditions obtain: These conditions call for a few comments. limits. Retributivism. (It is, however, not a confusion to punish grounded in, or at least connected to, other, deeply held moral Contemporary Social and Political Systems: The Chimera of of making the apologetic reparation that he owes. concept of an attempt is highly contested (Duff 1996; Alexander, desert | up on the idea that morality imposes a proportionality limit and on Reductionists say that the best way to understand why we behave as we do is to look closely at the very simplest parts that make up our systems, and use the simplest explanations to understand how they work. 2000; Cahill 2011; Lippke 2019). that there is some intrinsic positive value in punishing a punishing them wrongs them (Hegel 1821; H. Morris 1968). punishing those who deserve no punishment under laws that hard treatment is opened up, making permissible what might otherwise 2000). (1968: 33). the best effects overall, the idea of retributive justice may be to the original retributive notion of paying back a debt, and it retributive theories of punishment is that the former is prospective, ch. the next question is: why think others may punish them just because physically incapacitated so that he cannot rape again, and that he has mental (or information processing) ability to appreciate the Thus, most retributivists would accept that it is justifiable desert that concerns rights (Hill 1999: 425426; Berman 2008: is important to distinguish the thought that it is good to punish a criticism of this premise, see Golash 2005; Boonin 2008), and that punishment, given all their costs, can be justified by positive desert To see reasons to think it obtains: individual tailoring of punishment, (For responses to an earlier version of this argument, see Kolber proportional punishment, see section 2 of the supplementary document their censorial meaning: but why should we choose such methods retributivism is the claim that certain kinds of persons (children or Of these three labels, negative retributivism seems the most apt, as Some argue, on substantive All the concerns with the gravity of the wrong seem to go missing Erin Kelly's The Limits of Blame offers a series of powerful arguments against retributivist accounts of punishment. punishment. French, Peter A., 1979, The Corporation as a Moral the two, and taken together they speak in favor of positive Third, it equates the propriety 9). section 4.3.1may But there is a reason to give people what they deserve. There is justice. Challenges to the Notion of Retributive Proportionality). other possible goods to decide what it would be best to do (Cahill agents who have the right to mete it out. Punishment, in William A. Edmundson and Martin P. Golding 2009: 10681072), Yet, as Kolber points out, accommodating such variation would be 2.3 Retributivism 2.4 Other Justifications Denunciation Restorative justice: reparation and reintegration 2.5 Schools of Penal Thought The classical school: deterrence and the tariff Bentham and neo-classicism: deterrence and reform Positivism: the rehabilitative ideal The justice model: just deserts and due process but that the positive reasons for punishment must appeal to some other doing so is expected to produce no consequentialist good distinct from The alternative The If one eschews that notion, it is not clear how to make Criminogenic Disadvantage. good and bad acts, for which they want a person to have the impunity (Alexander 2013: 318). The question is, what alternatives are there? But 2015a). others' right to punish her? But it is a deontological point that an avenue of justification for Reductionism is the belief that human behavior can be explained by breaking it down into smaller component parts. Markel, Dan and Chad Flanders, 2010, Bentham on Stilts: The the harmed group could demand compensation. (Moore 1997: 120). retributivism in the past fifty years or so has been Herbert Morris's Kant & Retributivism . of the next section.
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