The article discusses retributive justice and punitive restraint in response to the worst types of crime. I take the Breivik Case as a starting point. Anders Behring Breivik was sentenced to 21 years of preventive detention for killing 69 people, mainly youths, at Utøya and 8 people in Oslo on July 22nd, 2011. Retributivist theories as well as commonly held retributive intuitions suggest that much harsher punishment is required for such crimes. According to some retributivist theories, most (...) notably on the influential theories of Kant and Hegel, the death penalty is warranted for murderers like Breivik. This suggests that the rationale for punitive restraint in a case like the Breivik Case can only be found in forward- looking, consequentialist theories of punishment, or by adding to retributivist theories a side-constraint in the form of a principle of parsimony. However, I argue that if we look closer at the function of punishment in the retributivist theories of Kant and Hegel, they too imply a rationale for punitive restraint, even for such horrific crimes as here discussed. Against Kant and Hegel’s own views on the death penalty, I argue that their broader “freedom theories” of retributive justice do not imply the justice of the death penalty or life imprisonment. In the last part of the article, I explore differences in the concepts of freedom entailed by Kant and Hegel’s theories, and I relate these to some of the background factors relevant to the Breivik Case. (shrink)

One might legitimately ask what reasons other than vanity could prompt an author to issue a collection of his previously published essays. The best reason, I think, is the belief that the essays hang together in such a way that, as a book, they produce a whole which is in a sense greater than the sum of its parts. When this happens, as I hope it does in the present case, it is because the essays pursue related themes in such (...) a way that, together, they at least form a start toward the development of a systematic theory on the common foundations supporting the particular claims in the particular articles. With respect to this collection, the essays can all be read as particular ways of pursuing the following general pattern of thought: that a commitment to justice and a respect for rights (and not social utility) must be the foundation of any morally acceptable legal order; that a social contractarian model is the best way to illuminate this foundation; that a retributive theory of punish ment is the only theory of punishment resting on such a foundation and thus is the only morally acceptable theory of punishment; that the twentieth century's faddish movement toward a "scientific" or therapeutic response to crime runs grave risks of undermining the foundations of justice and rights on which the legal order ought to rest; and, finally, that the legitimate worry about the tendency of the behavioral sciences to undermine the values of. (shrink)

Hsiao has recently developed what he considers a ‘simple and straightforward’ argument for the moral permissibility of corporal punishment. In this article we argue that Hsiao's argument is seriously flawed for at least two reasons. Specifically, we argue that a key premise of Hsiao's argument is question-begging, and Hsiao's argument depends upon a pair of false underlying assumptions, namely, the assumption that children are moral agents, and the assumption that all forms of wrongdoing demand retribution.

Retributivists who proclaim our moral obligation to punish criminals have displayed, on their own behalf, a type of argumant which I shall call Moral Balance. There are three versions of Moral Balance. According to Moral Balance I, retaliatory punishment restores the equality disturbed by the criminal. Moral Balance II philosophers admire the proportion between morality and welfare which punishment can yield. Those who hold with Moral Balance Ill are fascinated by the equilibrium of social benefits and burdens set by punishment. (...) All three versions are flawed as follows: they imply that crime is morally justified.Moral Balance 1: EqualityHegel informs us that:his is the action of a rational being and this implies that it is something universal and that by doing it the criminal has laid down a law which he has explicitly recognized in his action and under which in consequence he should be brought as under his right. (shrink)

Many people have the intuition that the failure to impose punishment on perpetrators of such serious human rights violations as murder, torture and rape that occurred in the course of violent conflict preceding a society’s transition from authoritarianism to democracy amounts to an injustice. This intuition is to an appreciable extent accounted for by the retributivist outlook of a high proportion of those who share it. Colleen Murphy, however, though she accepts that retributivism may justify punishment of offenders in stable (...) democracies, claims in her recent book on transitional justice that retributivism is inapplicable in the circumstances of transitional justice. I argue that the four arguments she provides in support of this claim are unsuccessful and that retributivism, assuming it to be a tenable rationale for punishment, justifies the subjection of perpetrators of at least some serious human rights abuses to sanctions in at least some transitional societies. (shrink)

The enterprise of state punishment requires the use of limited resources for which there are other competitors, such as national defense, market regulation, and social welfare. How resource-demanding retributive justice will turn out to be depends on how retributivists answer a series of questions concerning the theory’s structure. After elaborating these questions and the varieties of retributive justice that answers to them might generate, I consider the resource demands of retributive justice in the context (...) of competing theories of distributive justice. Various tensions and outright conflicts between the pursuit of retributive and distributive justice are then explored. (shrink)

ABSTRACT In this article I explore whether liberal retributive justice should be conceived of either individualistically or holistically. I critically examine the individualistic account of retributive justice and suggest that the question of retribution – i.e., whether and when punishment of an individual is compatible with just treatment of that individual – must be answered holistically. By resorting to the ideal of sensitive reasons, a model of legitimacy at the basis of our best normative models of (...) democracy, the article argues that in modern liberal democracies, punishment of an offender A for f is compatible with just treatment of A only if punishment of an individual for f can be legitimate in A's and A's fellow citizens' eyes. Only once retributive justice is understood in this holistic fashion the imposition of punishment can be made compatible with just treatment of individuals. RESUMO Neste artigo, exploro se justiça retributiva liberal deve ser concebida ou individualista ou de forma holística. Examino criticamente a conta individualista da justiça retributiva e sugiro que a questão da retribuição – quando a punição de um indivíduo é compatível com o tratamento justo desse indivíduo – deve ser respondida de forma holística. Recorrendo ao ideal de razões sensíveis, um modelo de legitimidade na base dos nossos melhores modelos normativos de democracia, argumento que, nas democracias liberais modernas, a punição de um delinquente A para φ é compatível com o tratamento justo de A só se punição de um indivíduo para φ pode ser legítimo aos olhos de A e seus concidadãos. Uma vez que a justiça retributiva é entendida dessa forma holística, a imposição da pena pode ser compatível com o tratamento justo de indivíduos. (shrink)

"An eye for an eye will make the whole world blind." This quote, often attributed to Gandhi, suggests the illegitimacy of the retributive urge. On the other hand, many feel a strong intuitive sense that "justice must be served" and that violators of justice must be fittingly punished. In this paper I examine the urge for retributive justice and argue that, at its base, it is rooted in a profound desire to have a wrongdoer see (...) the nature of his or her wrongdoing, with the ultimate aim of inducing the repentance and reformation needed for a genuine healing of relationship. In this way, the urge for retributive justice may be seen as having, as its true end, the restoration of wholesome relations between wrongdoer and wronged. (shrink)

This article explores how historical narratives affect the evaluation of political decisions regarding justice during peace negotiations. Specifically, this study evaluates how different narratives of the Colombian armed conflict relate to the preference for either restorative or retributive justice. Results revealed that a historically accurate narrative that included structural elements correlated with the preference for restorative justice, whereas a schematic narrative that focused on individual greed favoured the preference for retributive justice. These results are (...) explained in terms of the characteristics of expert historical narratives, which include structural elements, such as economic and institutional factors. The presence of these elements in the explanation of conflicts decreases the weight of individual decisions and, in this way, prevent ingroup attributional biases. (shrink)

'Free will skepticism' refers to a family of views that all take seriously the possibility that human beings lack the control in action - i.e. the free will - required for an agent to be truly deserving of blame and praise, punishment and reward. Critics fear that adopting this view would have harmful consequences for our interpersonal relationships, society, morality, meaning, and laws. Optimistic free will skeptics, on the other hand, respond by arguing that life without free will and so-called (...) basic desert moral responsibility would not be harmful in these ways, and might even be beneficial. This collection addresses the practical implications of free will skepticism for law and society. It contains eleven original essays that provide alternatives to retributive punishment, explore what changes are needed for the criminal justice system, and ask whether we should be optimistic or pessimistic about the real-world implications of free will skepticism. (shrink)

Why is it that we think today so very differently about distributive and retributive justice? Why is the notion of desert so neglected in our thinking about distributive justice, while it remains fundamental in almost every account of retributive justice? I wish to take up this relatively neglected issue, and put forth two proposals of my own, based upon the way control functions in the two spheres.

Although naming-and-shaming (shaming) is a commonly used tax enforcement mechanism, little is known about the efficacy of shaming tax evaders. Through two experiments, this study examines the effects of shaming tax evaders on third-party observers’ perceptions of retributive justice and tax compliance intentions, and whether the salience of persuasion of observers moderates these relationships. Based on insights from defiance theory, the message learning model, and persuasive communications, this study predicts and finds that shaming evaders increases observers’ tax compliance (...) intentions. Furthermore, the results show that higher persuasion, which includes sanction and normative appeals, affects observers’ tax compliance intentions. This study also suggests that shaming has a positive effect on perceptions of retributive justice. Importantly, the results reveal that perceptions of retributive justice in shaming punishment mediate the effect of shaming on tax compliance intentions. The implications for theory and practice are discussed. (shrink)

Within the United States, the most prominent justification for criminal punishment is retributivism. This retributivist justification for punishment maintains that punishment of a wrongdoer is justified for the reason that she deserves something bad to happen to her just because she has knowingly done wrong—this could include pain, deprivation, or death. For the retributivist, it is the basic desert attached to the criminal’s immoral action alone that provides the justification for punishment. This means that the retributivist position is not reducible (...) to consequentialist considerations nor in justifying punishment does it appeal to wider goods such as the safety of society or the moral improvement of those being punished. A number of sentencing guidelines in the U.S. have adopted desert as their distributive principle, and it is increasingly given deference in the “purposes” section of state criminal codes, where it can be the guiding principle in the interpretation and application of the code’s provisions. Indeed, the American Law Institute recently revised the Model Penal Code so as to set desert as the official dominate principle for sentencing. And courts have identified desert as the guiding principle in a variety of contexts, as with the Supreme Court’s enthroning retributivism as the “primary justification for the death penalty.” While retributivism provides one of the main sources of justification for punishment within the criminal justice system, there are good philosophical and practical reasons for rejecting it. One such reason is that it is unclear that agents truly deserve to suffer for the wrongs they have done in the sense required by retributivism. In the first section, I explore the retributivist justification of punishment and explain why it is inconsistent with free will skepticism. In the second section, I then argue that even if one is not convinced by the arguments for free will skepticism, there remains a strong epistemic argument against causing harm on retributivist grounds that undermines both libertarian and compatibilist attempts to justify it. I maintain that this argument provides sufficient reason for rejecting the retributive justification of criminal punishment. I conclude in the third section by briefly sketching my public health-quarantine model, a non-retributive alternative for addressing criminal behavior that draws on the public health framework and prioritizes prevention and social justice. I argue that the model is not only consistent with free will skepticism and the epistemic argument against retributivism, it also provides the most justified, humane, and effective way of dealing with criminal behavior. (shrink)

How may a society, in a morally defensible way, confront a past of injustice and suffering, and seek to break the spell of violence and disregard for human life? I begin by demonstrating the relevance of this question to the South African Truth and Reconciliation Commission, and I draw attention to André du Toit's long- standing interest in ways in which truth commissions may function to consolidate political change. In the second section of the article, I argue that truth commissions (...) should be regarded as a defensible moral compromise between the values of justice and social unity, and I criticize claims that truth commissions promote transitional justice, when that is understood as a distinctive conception of justice that emerges in circum stances of regime transition. In the third section, I criticize the claim that truth commissions are not a moral compromise at all but embody a superior, restorative conception of justice. I conclude by showing why retribution is required by criminal justice, and why truth commissions must be seen, not as an end in themselves, but as institutions whose function is to emphasize the importance of the rule of law, normal criminal justice, and legal recognition. (shrink)

How may a society, in a morally defensible way, confront a past of injustice and suffering, and seek to break the spell of violence and disregard for human life? I begin by demonstrating the relevance of this question to the South African Truth and Reconciliation Commission, and I draw attention to André du Toit’s longstanding interest in ways in which truth commissions may function to consolidate political change. In the second section of the article, I argue that truth commissions should (...) be regarded as a defensible moral compromise between the values of justice and social unity, and I criticize claims that truth commissions promote transitional justice, when that is understood as a distinctive conception of justice that emerges in circumstances of regime transition. In the third section, I criticize the claim that truth commissions are not a moral compromise at all but embody a superior, restorative conception of justice. I conclude by showing why retribution is required by criminal justice, and why truth commissions must be seen, not as an end in them selves, but as institutions whose function is to emphasize the importance of the rule of law, normal criminal justice, and legal recognition. (shrink)

Within the United States, the most prominent justification for criminal punishment is retributivism. This retributivist justification for punishment maintains that punishment of a wrongdoer is justified for the reason that she deserves something bad to happen to her just because she has knowingly done wrong—this could include pain, deprivation, or death. For the retributivist, it is the basic desert attached to the criminal’s immoral action alone that provides the justification for punishment. This means that the retributivist position is not reducible (...) to consequentialist considerations nor in justifying punishment does it appeal to wider goods such as the safety of society or the moral improvement of those being punished. A number of sentencing guidelines in the U.S. have adopted desert as their distributive principle, and it is increasingly given deference in the “purposes” section of state criminal codes, where it can be the guiding principle in the interpretation and application of the code’s provisions. Indeed, the American Law Institute recently revised the Model Penal Code so as to set desert as the official dominate principle for sentencing. And courts have identified desert as the guiding principle in a variety of contexts, as with the Supreme Court’s enthroning retributivism as the “primary justification for the death penalty.” While retributivism provides one of the main sources of justification for punishment within the criminal justice system, there are good philosophical and practical reasons for rejecting it. One such reason is that it is unclear that agents truly deserve to suffer for the wrongs they have done in the sense required by retributivism. In the first section, I explore the retributivist justification of punishment and explain why it is inconsistent with free will skepticism. In the second section, I then argue that even if one is not convinced by the arguments for free will skepticism, there remains a strong epistemic argument against causing harm on retributivist grounds that undermines both libertarian and compatibilist attempts to justify it. I maintain that this argument provides sufficient reason for rejecting the retributive justification of criminal punishment. I conclude in the third section by briefly sketching my public health-quarantine model, a non-retributive alternative for addressing criminal behavior that draws on the public health framework and prioritizes prevention and social justice. I argue that the model is not only consistent with free will skepticism and the epistemic argument against retributivism, it also provides the most justified, humane, and effective way of dealing with criminal behavior. (shrink)

This paper discusses a non-state justice system (Sistema Comunitario de Seguridad, Justicia y Reeducación, hereafter: SCSJR) applied by some of the Afromexican and Indigenous communities of the Guerrero state in Mexico as an example of a maximalist restorative justice system. Restorative justice is presented here as an alternative to criminal justice. While it responds to similar moral concerns as retributive justifications do, it offers more adequate mechanisms of dealing with certain crimes and aims to reduce (...) coerciveness of justice when dealing with lawbreaking. Restorative justice is also an approach that should be perceived as more legitimate when handling cases where the state lacks the moral standing to prosecute offenders. The SCSJR is used as an example to demonstrate the possibility of a justice system based on restorative principles to be effective in handling the entirety of lawbreaking in a community. In the case of the SCSJR this approach to justice has been proved to be effective even in the wake of high levels of criminal activity in the region. This paper discusses the SCSJR’s institutions and attitude toward lawbreaking and argues that they demonstrate an example of a justice system based on restorative justice. (shrink)

This paper explores Rawls' positions on the subject of retributive (criminal) justice. It is first argued that Rawls' perspective is hybrid with respect to the two traditional dichotomies of retributivism vs. utilitarianism and of deontologism vs. consequentialism. There is evidence to the effect that Rawls is both a retributivist and a consequentialist. Secondly, Rawls' positions are discussed in the light of recent empirical research. It is argued that his view of retributive justice as being strictly reactive (...) conflicts with the present proactive dimension of criminal justice. It is also suggested that the principle that all inequality should profit the least advantaged members of society has now little application in criminal justice which essentially targets the poor and the powerless. (shrink)

Few defences of retribution in criminal justice make a plausible case for the view that punishment plays a necessary role in restoring relations between offenders, victims and the community. Even fewer defences of retribution make a plausible appeal to the interpersonal practice of apologizing as a symbolically adequate model for criminal justice. This review article considers Christopher Bennett’s engaging defence of an apology ritual in criminal justice, an account of justifiable punishment that draws from the best of (...) retributive and restorative justice theory. (shrink)

I am very grateful to Justin Coates, Adina Roskies, and Costanza Porro for their thoughtful and challenging comments on my book, The Limits of Blame: Rethinking Punishment and Responsibility. My response is organized around their discussion of four main topics: moral competence, proportionality, restorative justice, and excessive punishment.