There is a deep tension between liberalism and retributivism. On the face of it, one cannot coherently believe liberalism about the fundamental purpose of the state and retributivism about the basic end of legal punishment, given widely held and well-motivated or what I call ‘standard’ conceptions of these views. My aims in this article are to differentiate the types of conflict between liberalism and retributivism, to identify the strongest and most problematic type of conflict between them, to demonstrate that (...) existing strategies in the literature that might be invoked to resolve this conflict fail, and to present a new, conclusive way to resolve it. The solution lies in changing the standard conception of liberalism, which change, I argue, is warranted on independent grounds. Liberalism, up to now, has been conceived in a way that fails to best capture liberal intuitions. Upon improving our understanding of what liberal purposes essentially are, it becomes clear that retributive punishment is not merely logically consistent with them, but also partially constitutive of them. (shrink)

It is an assumption widely shared by both retributivists and anti-retributivists that revenge is a morally impermissible basis for inflicting harm. Retributivists have thus exercised great ingenuity in demonstrating that retribution is fundamentally different from revenge. But this is, I argue, to misconstrue the problem. The problem is rather to recognize the essential continuity between revenge and retribution, and to address the question whether there is a moral basis for the very idea of inflicting harm in response to moral wrongdoing. (...) I argue that the only plausible such moral justification is the defense of honor, and that the debate needs to be focused on the legitimacy of honor as a moral basis for punishment. (shrink)

This paper examines hart's model (1967) of the retributive theory. section i criticizes the model for not answering all the main questions to which a theory of punishment should be addressed, as hart alleges it does. section ii criticizes the model for its omission of the concept of desert. section iii criticizes attempts by card (1973) and by von hirsch (1976) to provide new ways of proportioning punitive severity to criminal injury. section iv discusses the idea of retribution (...) in justifying aim and criticizes the theory of fingarette (1977). the conclusion is that the new retributivists have not solved the problems inherent to older versions of the theory. (shrink)

Peter Strawson makes a crucial distinction between reactive attitudes and the objective attitude. Reactive attitudes such as gratefulness, anger and indignation imply that we take each other seriously as responsible agents. The objective attitude implies that we stop taking each other seriously. Strawson argues that the objective attitude is not merely psychologically difficult: it is inconceivable that we would systematically refrain from taking each other seriously and stop discussing with each other or blaming ourselves or others. Strawson, however, only discusses (...) the reactive attitudes from a general point of view. In this paper, we argue that the reactive attitudes of remorse and moral indignation are forms of ”symbolic restoration’. Retributive punishment should also be interpreted from this perspective. Consequently, our concern with moral blame cannot be understood independently from a concern with the harm that has occurred. Our attitude to the outcome determines our attitude to the agent. The concern with the mental state is secondary: it is structured by its place within the practice of symbolic restoration. (shrink)

Punishment is a phenomenon which occurs in many contexts. Discussions of punishment assume punishment is criminal punishment carried out by the State. This book contains an account of punishment which overcomes the difficulties of competing accounts and treats punishment comprehensibly to better understand how it differs from similar phenomena, discussing its justification fruitfully.

This paper proposes a retributive argument against punishment, where punishment is understood as going beyond condemnation or censure, and requiring hard treatment. The argument sets out to show that punishment cannot be justified. The argument does not target any particular attempts to justify punishment, retributive or otherwise. Clearly, however, if it succeeds, all such attempts fail. No argument for punishment is immune from the argument against punishment proposed here. The argument does not (...) purport to be an argument only against retributive justifications of punishment, and so leave open the possibility of a sound non-retributive justification of punishment. Punishment cannot be justified, the paper argues, because it cannot be demonstrated that any punishment, no matter how minimal, is not a disproportionate retributive response to criminal wrongdoing. If we are to hold onto proportionality—that is, proportionality as setting a limit to morally permissible punishment—then punishment is morally impermissible. The argument is a retributive argument against punishment insofar as a just retributive response to wrongdoing must be proportionate to the wrongdoing. The argument, that is, is concerned with proportionality as a retributive requirement. The argument against punishment is set out on the basis of a familiar version of the ‘anchoring problem’, according to which it is the problem of determining the most severe punishment to anchor or ground the punishment scale. To meet the possible criticism that we have chosen a version of the anchoring problem particularly favourable to our argument, various alternative statements of the anchoring problem are considered. Considering such statements also provides a more rounded view of the anchoring problem. One such alternative holds that the punishment scale must be anchored not just in the most severe punishment, but in the least severe punishment as well. Other alternatives hold that it is necessary and sufficient to anchor the punishment scale in any two punishments, neither of which needs to be the most or least severe punishment. A further suggestion is that one anchoring point anywhere along the punishment scale is sufficient, because it is possible to ‘project’ from such a point, so as to determine the correlative punishments for all other crimes, and so derive a complete punishment scale. Finally, the suggestion is considered that one can approach the issue of a punishment scale ‘holistically’, denying any distinction between anchoring and derived (or ‘projected’) punishments. (shrink)

It is not usually morally permissible to desire the suffering of another person, or to act so as to satisfy this desire; that is, to act with the aim of bringing about suffering. If the retributive emotions, and the retributive responses of which they are a part, are morally permitted or even required, we will need to see what is distinctive about them. One line of argument in this paper is for the conclusion that a retributive desire (...) for the suffering of the wrong-doer, and the aim to bring this about, can (contra recent arguments from Hanna 2008) be morally justified. -/- It has been suggested that by reflecting on the role of the retributive emotions in interpersonal relationships, and the alleged legitimacy of the aim for the suffering of the wrong-doer within them, support can be garnered for retributive practices of punishment by the state (Duff 1986 and 2001, Bennett 2002 and 2003). The conclusion of the second line of argument in the paper is that whilst the retributive responses can permissibly aim at suffering, the way in which this is so in interpersonal relationships cannot provide support for retributive state punishment. (shrink)

abstract I examine emotional reactions to wrongdoing to determine whether they offer support for retributivism. It is often thought that victims desire to see their victimizer suffer and that this reaction offers support for retributivism. After rejecting several attempts to use different theories of emotion and different approaches to using emotions to justify retributivism, I find that, assuming a cognitive theory of emotion is correct, emotions can be used as heuristic guides much as suggested by Michael Moore. Applying this method (...) to the actual emotional reactions of victims’ relatives, however, does not find support for retributivism. Instead, it suggests punishment should be understood as part of a process of recovery with a complex set of demands. Retributive concerns can play a role in the process, but they don't have the priority that retributivism requires. (shrink)

According to criminal law a person should not be punished for a bare intention to commit a crime. While theorists have provided consequentialist and epistemic justifications of this tenet, no convincing retributive justification thereof has yet been advanced. The present paper attempts to fill this lacuna through arguing that there is an important moral difference between a future-directed and a present-directed intention to act wrongfully. Such difference is due to the restraining influence exercised in the decisional process by the (...) ‘now-belief’, i.e. the belief that the time has come to act, which is exclusively involved in the latter type of intention. (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)

I examine emotional reactions to wrongdoing to determine whether they offer support for retributivism. It is often thought that victims desire to see their victimizer suffer and that this reaction offers support for retributivism. After rejecting several attempts to use different theories of emotion and different approaches to using emotions to justify retributivism, I find that, assuming a cognitive theory of emotion is correct, emotions can be used as heuristic guides much as suggested by Michael Moore. Applying this method to (...) the actual emotional reactions of victims' relatives, however, does not find support for retributivism. Instead, it suggests punishment should be understood as part of a process of recovery with a complex set of demands. Retributive concerns can play a role in the process, but they don't have the priority that retributivism requires. (shrink)

This paper provides a discussion of the role that emotions may play in the justification of punishment. On the expressivist account of punishment, punishment has the purpose of expressing appropriate emotional reactions to wrongdoing, such as indignation, resentment or guilt. I will argue that this expressivist approach fails as these emotions can be expressed other than through the infliction of punishment. Another argument for hard treatment put forward by expressivists states that punitive sanctions are necessary in (...) order for the law to be valid. But this justification of punishment, too, is unconvincing. There are no good reasons to assume that we have to resort to punitive measures in order to vindicate the law. I will then raise the more general worry whether there is any intelligible link at all between moral emotions such as indignation, resentment or guilt and retributive behaviour. I will finally conclude with some sceptical remarks on the moral worth of retribution. (shrink)

Traditionally Kant's theory of punishment has been seen as wholly retributive. Recent Kantian scholarship has interpreted the theory as more moderately retributive: punishment is deterrent in aim, and retributive only in so far as the amount and type of penalty is to be determined by retributive considerations (the ius talionis). But it is arguable that a more coherent Kantian theory of punishment can be developed which makes no appeal to retribution at all: hypothetical (...) contractors would have no good reason to endorse punishment distributed retributively. This position is first sketched behind Rawls's neo‐Kantian ‘veil of ignorance’, and it is suggested that the same theory will emerge from Scanlon's more relaxed neo‐Kantian position. (shrink)

There are many difficulties connected with the notion of punishment, but perhaps it is not disputed that it is at least a deliberate infliction of pain of one kind or another. Of course, that is not an adequate description of its nature, but so far as it goes it seems to be a true one.1 And the idea that it could be morally right deliberately tp inflict pain on another, unlike, for example, the idea that it is morally right (...) to tell the truth, is so manifestly intolerable unless we look beyond the infliction of pain itself that we are tempted to leap forward to the question, “What is the justification of such action?” before making quite explicit to ourselves what it is, over and above its being the deliberate infliction of pain, that constitutes the action punishment at all. The questions “Why hurt?” and “Why punish?” are confused with one another. No doubt some distinction between them is present vaguely in everyone's mind and the confusion may not be in fact serious: but anyhow it is a defect and should be remedied. (shrink)

The ‘dualist project’ in the philosophy of punishment is to show how retributivist and reductivist (utilitarian) considerations can be combined to provide an adequate justification of punishment. Three types of dualist theories can be distinguished—‘split‐level’, ‘integrated’ and ‘mere conjunction’. Split‐level theories (e.g. Hart, Rawls) must be rejected, as they relegate retributivist considerations to a lesser role. An attempted integrated theory is put forward, appealing to the reductivist means of deterrence. However, it cannot explain how the two types of (...) considerations, retributivist and reductivist, are to be genuinely integrated as opposed to merely conjoined. An attempt to find integration at the deeper level of political philosophy is then examined, in the form of Lacey's communitarian theory of punishment. In the end, mere conjunction dualism must be accepted by default. This conclusion points to a deep‐lying schizophrenia in our substantive criminal law. Although developing this theme is beyond its scope, the paper ends by saying a little on how a mere conjunction dualist theory of punishment leads on to a similar theory of criminalization. (shrink)

"This book argues for a mixed view of punishment that balances consequentialism and retributivism. He has published extensively on philosophy and applied ethics. A central question in the philosophy of law is why the state's punishment of its own citizens is justified. Traditionally, two theories of punishment have dominated the field: consequentialism and retributivism. According to consequentialism, punishment is justified when it maximizes positive outcomes. According to retributivism, criminals should be punished because they deserve it. This (...) book defends a mixed view that recognizes the strength of both of these intuitions. By this account, the legislature should develop institutional policies and statutory penalties that maintain the social order, that is, consequentialism. It establishes punishment policies to deter criminal activity. By contrast, the criminal judiciary should give individual defendants what they deserve, that is, retributivism and thus expressing the community's appropriate sense of resentment at being wronged. The book justifies the two-tiered model by showing how it accords with our moral intuitions, our assumptions about how what we know affects our moral obligations, and a commonly held theory of freedom. This approach is developed by engaging classic and contemporary work in the philosophy of law, and shows its advantages over competing approaches from contemporary retributivists and other mixed theorists. The work also defends consequentialism against a longstanding objection that the social sciences give us little guidance regarding which policies to adopt. It draws on cutting-edge criminological research to show how punishment theory can help us to address some of our most pressing social issues, including the death penalty, drug laws, and mass incarceration. The book will also be of interest to legal philosophers, social scientists, especially criminologists, sociologists, economists, and political scientists"--. (shrink)

We suggest that a restorative justice critique of current retributive policy and practice may well be a starting point for the development of more just and more effective approaches to sentencing, both formal and informal, and to a more effective approach to reentry for currently incarcerated persons. While restorative justice principles acknowledge the debt owed by offenders to their victims and victimized communities, this is a debt met neither by inflicting harm on the offender nor by removing the offender's (...) rights as a citizen. As a different normative theory, the measure of justice in a restorative approach is the extent to which harm caused by crime is repaired. While restorative justice may therefore demand a lot of offenders, their supporters, and community members, it also provides for the opportunity for victim input and reparation. Most importantly, the normative theory of restorative justice provides a different currency of repair and healing that could begin to displace the currency of punishment that knows no limits. While a restorative metric would certainly have its own limits and guidelines, the metric of uniformity as the primary gauge of justice process could at least be supplemented with a metric of stakeholder participation, satisfaction, accountability, reparation, and peacemaking. (shrink)

Strawson's view on punishment has been either neglected or recoiled from in contemporary scholarship on ‘Freedom and Resentment’ (FR). Strawson's alleged retributivism has made his view suspect and troublesome. In this article, we first argue, against the mainstream, that the punishment passage is an indispensable part of the main argument in FR (section 1) and elucidate in what sense Strawson can be called ‘a retributivist’ (section 2). We then elaborate our own hypothesis of symbolic retribution to explain the (...) continuum between moral reactive attitudes and punishment that Strawson only adumbrates (section 3). After this justification of the punitive response to wrongdoing, we compare and contrast our specific kind of retributivist hypothesis with other positions in the so-called ‘new retributivism’ (section 4). Our hypothesis differs from other subvarieties of expressive retributivism in putting centre stage the idea of punishment as taking up a reverential stance towards the victim. (shrink)

Kant's theory of punishment is commonly regarded as purely retributive in nature, and indeed much of his discourse seems to support that interpretation. Still, it leaves one with certain misgivings regarding the internal consistency of his position. Perhaps the problem lies not in Kant's inconsistency nor in the senility sometimes claimed to be apparent in the Metaphysic of Morals, but rather in a superimposed, modern yet monistic view of punishment. Historical considerations tend to show that Kant was (...) discussing not one, but rather two facets of punishment, each independent but nevertheless mutually restrictive. Punishment as a threat was intended to deter crime. It was a tool in the hands of civil society to counteract human drives toward violating another's rights. In its execution, however, the state was limited in its reaction by a retributive theory of justice demanding respect for the individual as an end and not as a means to some further social goal. This interpretation of Kant's theory of punishment maintains consistency from the earliest through the latest of his writings on moral, legal, and political philosophy. It provides a good reason for rejecting current economic analyses of crime and punishment. Most important of all, it credits Kant's theory in its clear recognition of the ideals intrinsic to libertarian government. (shrink)

Kant is often regarded as an extreme retributivist, but recently commentators emphasize the importance of deterrence in Kant's basic justification of punishment. Kant's combination of deterrence and retributive elements, however, must be distinguished from others that are less plausible. To interpret Kant as merely adding retributive side-constraints to a basic deterrence aim fails to capture fully the retributive strain in Kant's thought. The basic questions are: who should be punished, how much, in what manner, and why? (...) Kant held that all and only the legally guilty ought to be punished, the legally guilty being also morally guilty, except when the legal requirement was to do something "immoral in itself." This case aside, violations of law also transgress an ethical duty to obey the law. Criminal punishments should be designed to match victims' empirically discernable losses in degree and kind, except when this would be impossible or degrading; courts cannot measure the ultimate moral desert of criminals, which depends on their inner "will." "Punishment" is not a mere disincentive in a "price" system of social control; it has an inherent expressive function, conveying a public message of moral disapproval of the criminal conduct in question. Understanding this together with Kant's basic theory of justice may help to explain his acceptance of ius talionis and condemnation of making exceptions for pragmatic reasons. It also accounts for the retributive "tone" of Kant's remarks, despite his insistence that public courts deal only with "external actions," not overall moral worth and character assessment. Kant wird oft als Vertreter einer extremen Vergeltungstheorie gesehen. Auf der anderen Seite betonen verschiedene Autoren in der letzten Zeit die Abschreckung als grundlegendes Element in Kants Rechtfertigung der Strafe. Ihnen gegenüber muß Kants Verknüpfung von Vergeltung und Abschreckung von anderen ähnlichen Verknüpfungen unterschieden werden, die weniger plausibel sind. Kant so zu interpretieren, als füge er zum Hauptziel der Abschreckung nur einige nebensächliche Elemente der Vergeltung hinzu, verfehlt den Vergeltungsaspekt in Kants Straftheorie. Die grundlegenden Fragen sind: Wer soll bestraft werden, wie schwer, in welcher Weise und warum? Kant war der Ansicht, daß alle, aber auch nur diejenigen bestraft werden sollen, die sich vor dem juridischen Gesetz schuldig gemacht haben. Wer sich vor dem juridischen Gesetz schuldig gemacht hat, hat sich auch moralisch schuldig gemacht, es sei denn, das vom Recht Geforderte sei etwas "an sich selbst Unmoralisches". Sieht man von diesem letzteren Fall einmal ab, dann enthält jede Übertretung des juridischen Gesetzes immer auch eine Verletzung der ethischen Pflicht, dem juridischen Gesetz zu gehorchen. Strafe sollte darauf angelegt sein, den empirisch erkennbaren Verlusten des Opfers nach Art und Ausmaß zu entsprechen, außer, wenn dies unmöglich oder erniedrigend wäre; Gerichte können die tatsächliche moralische Schuld von Verbrechern, die von ihrem inneren "Willen" abhängt, nicht messen. "Strafe" ist kein bloßes Abschreckungsmittel in einem "Preis"-System sozialer Kontrolle. Statt dessen hat sie die ganz wesentliche und ausdrückliche Funktion, die moralische Mißbilligung des jeweiligen verbrecherischen Verhaltens öffentlich zum Ausdruck zu bringen. Diese Interpretation, zusammen mit Kants grundlegender Theorie der Gerechtigkeit, kann helfen zu verstehen, warum Kant das ius talionis akzeptiert hat und warum er Ausnahmen, die aus pragmatischen Gründen gemacht werden, mißbilligt. Sie erklärt auch den "Tonfall" in Kants Äußerungen, der mir seiner Vergeltungstheorie zusammenhängt, auch wenn Kant darauf beharrt, daß staatliche Gerichte sich immer nur mit "äußeren" Handlungen befassen, nicht mit dem moralischen Wert insgesamt oder mit einer Beurteilung des Charakters einer Person. (shrink)

Retribution involves the presumption that acts of punishment are non-instrumentally good, right, fitting, or justified. On this view, punishment need not be organized in relation to some good outcome or purpose (separate from the act itself or its relationship to past wrongdoing) in order to have moral worth of some kind. Wiegman argues that this view has its roots in ancient psychological impulses like anger and vengefulness. He has argued elsewhere that the evolution of these impulses undercuts our (...) primary reason to believe that punishment is good in itself. Here, he extends those arguments to also undercut the claim that punishment is right in itself. (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)