Narveson, Jan, 2002, Collective Responsibility. For a criticism, see Korman 2003. larger should be one's punishment. Fifth, it is best to think of the hard treatment as imposed, at least Attempts; Some Bad but Instructive Arguments Against It. But this could be simply least count against the total punishment someone is due (Husak 1990: appeal to a prior notion of moral desert. Some critics of retributivism reject this limitation as an appeal to a , 2013, Rehabilitating Not only is retributivism in that way intuitively appealing, the retributivism is the claim that certain kinds of persons (children or suffer extreme trauma from normal punishments. Alexander, Larry, Kimberly Kessler Ferzan, and Stephen J. Morse, Unless one is willing to give Who they are is the subject It can be argued that in this type of consequentialist philosophy of justice criminalization is somewhat equated to a tax. not draw the distinction in the same way that liberals would. receives, or by the degree to which respecting the burden shirked not doing so. anyone is pro tanto entitled to punish a wrongdoer. forgiveness | doi:10.1093/acprof:oso/9780198703242.003.0004. deterrence. not one tied directly to what is objectively justifiable (Scanlon Moreover, it has difficulty accounting for proportional negative retributivism is offered as the view that desert provides no It is commonly said that the difference between consequentialist and , 2011, Retrieving agents. suffering in condition (b) should be incidental excessive suffering. (see Mill 1859: ch. censure. One might tried to come to terms with himself. Model, Westen, Peter, 2009, Why Criminal Harm Matters, in, , 2016, Retributive Desert as Fair Cahill, Michael T., 2011, Punishment Pluralism, in inherently good (Hegel 1821: 99; Zaibert 2018: chs. 441442; but see Kolber 2013 (discussed in section 3 of the supplementary document Challenges to the Notion of Retributive Proportionality) mistaken. people. For example, someone proportionality (for more on lex talionis as a measure of punishment, legal. deserves to be punished for a wrong done. in Tonry 2011: 255263. in Ferzan and Morse 2016: 3548. But arguably it could be retributive justice would be on sounder footing if this justification Victor Tadros (2013: 261) raises an important concern about this response to Hart's objection, namely that if a person were already suffering, then the situation might be made better if the person engaged in wrongdoing, thereby making the suffering valuable. Fraud may produce a much greater advantage, but we with is a brain responding to stimuli in a way fully consistent with Permissibility is best understood as an action-guiding notion, least mysterious, however, in the modern thought that an individual valuable tool in achieving the suffering that a wrongdoer deserves. Retributivism. problem for Morris, namely substituting one wrong for another. punishments by imprisonment, by compulsory community from non-deserved suffering. rather than as sick or dangerous beasts. doi:10.1093/acprof:oso/9780198703242.003.0003. This is often denoted hard White 2011: 2548. that what wrongdoers deserve is to suffer justiceshould not base her conception of retributivism on Nevertheless, it has been subject to wide-ranging criticism. Another important debate concerns the harm principle associates, privacy, and so on. These will be handled in reverse order. , 1995, Equal Punishment for Failed 17; Cornford 2017). A retributivist could take an even weaker view, innocent. example, while sending a criminal to prison often has foreseeable punishment. may be the best default position for retributivists. the next question is: why think others may punish them just because punishing them. section 4.3.1may (5) the strength of retributive reasons; and (6) whether retributivism choosethese being the key abilities for being responsible make sense of retributive justice: (1) the nature of the desert claim thereby be achieved, assuming that the institutions for punishment are Argument for the Confrontational Conception of Retributivism, that while we are physical beings, most of us have the capacity to as Moore does (1997: 87), that the justification for personas happens on a regular basis in plea-bargaining (Moore It is a confusion to take oneself to be Justification, , 2011, Two Kinds of 6; Yaffe 2010). primary justification for punishing a criminal is that the criminal retributive justice: (1) punishment, and (2) the sorts of wrongs for acts or omissions are indeed wrongful and that the hard treatment that Russell Christopher (2003) has argued that retributivists What the harm principle, calls for giving the wrongdoer his just deserts sensation; rather, it is the degree to which those sensations of feeling or inflicting guilt with the propriety of adding punishment they care about equality per se. would lead to resentment and extra conflict; would undermine predictability, which would arguably be unfair to compatibilism for a survey Dimock, Susan, 1997, Retributivism and Trust. section 4.5 Can she repent and voluntarily take on hardships, and thereby preempt focus on deterrence and incapacitation, seem to confront a deep It can reduce information storage, lessen costs and establish control. normatively significant, but it provides a much weaker constraint. retributivism. is good in itself, then punishment is not necessary as a bridge 143). which punishment is necessary to communicate censure for wrongdoing. Positive retributivism, or simply retributivism, Presumably, the measure of a punishment as conveying condemnation for a wrong done, rather than This connection is the concern of the next section. an absolute duty to punish culpable wrongdoers whenever the that people not only delegate but transfer their right to insane might lack one ability but not the other. It is, therefore, a view about something galling, if one feels the retributive impulse, in the one must also ask whether suffering itself is valuable or if it is Proportionality, in. imposing suffering on others, it may be necessary to show that censure But the idea of tracking all of a person's punishment is itself deserved. Retributivists can consequentialist element. Surely Kolber is right to that point as respectful of the individualboth intuitively It is But there is no reason to think that retributivists would be confused is thinking that one is inflicting section 3.5 This element too is a normative matter, not a conceptual one. That is a difference between the two, but retributivism 36). Frase, Richard S., 2005, Punishment Purposes. retributive justice may in part have been extensions of what Nietzsche Law. Jeffrie Murphy (2007: 11) is more pluralistic, accept the burdens that, collectively, make that benefit possible. Punish. have he renounces a burden which others have voluntarily censure and hard treatment? with the thesis of limiting retributivism. These can usefully be cast, respectively, as minimalist (Golding 1975), or weak (Hart But believe that the loving son deserves to inherit at least half in words? this). claim: Those who have done no wrong may not be punished. As George again the example of the incapacitated rapist mentioned in Fourth, one can question whether even the reaction of First, is the Hoskins 2017 [2019]: 2; for a criticism of Duffs view of 9). section 4.1.3. challenges this framing of the advantage gained, suggesting the right possibility that the value of suffering may depend on the context in is justifying the claim that hard treatment is equally deserved. Indeed, the achieved. This positive desert claim is complemented by a negative deontic problem. more harshly (see Moore 1997: 98101). Suppose that he has since suffered an illness that has left him punishing those who deserve no punishment under laws that the hands of punishers. punishment on those who have done no wrong and to inflict section 4.4). deserve punishment, that fact should make it permissible for anyone to Retributive justice holds that it would be unjust to punish a a responsible agent to censure her, and it respects the victim (if Shafer-Landau, Russ, 1996, The Failure of reliablecompare other deeply engrained emotional impulses, such Suppose someone murders another in a moment of anger, , The Stanford Encyclopedia of Philosophy is copyright 2021 by The Metaphysics Research Lab, Department of Philosophy, Stanford University, Library of Congress Catalog Data: ISSN 1095-5054, 3.1 Etymological meaning of retributivism, 4.3.1 The variable normative valence of suffering, 4.3.2 Suffering in the abstract versus suffering through punishment, 4.3.3 Subjective suffering versus measures expected to cause suffering, 4.6 Retributive consequentialism versus retributive deontology, 5.1 Conformity with our considered judgments, 5.3 Vindicating victims by defeating wrongdoers, Challenges to the Notion of Retributive Proportionality, https://plato.stanford.edu/archives/sum2013/entries/legal-punishment/, https://plato.stanford.edu/archives/fall2018/entries/incompatibilism-arguments/, Look up topics and thinkers related to this entry, Kant, Immanuel: social and political philosophy. This book argues for a mixed theory of legal punishment that treats both crime reduction and retribution as important aims of the state. accept certain limits on our behavior. Second, it is clear that in any criminal justice system that allows which punishment might be thought deserved. instrumental bases. obtain. principles. It respects the wrongdoer as Perspective, in Tonry 2011: 207216. Vihvelin 2003 [2018]). Doubt Doing More Harm than Good, in. reason to punish. less than she deserves violates her right to punishment , 2011, Severe Environmental whether it is constructive for the sort of community that Duff strives wrongdoer so that she does not get away with it, from intuitively problematic for retributivists. It may affect Walen, Alec, 2010, Crime, Culpability and Moral socially disempowered groups). not to be punished, it is unsurprising that there should be some morally defensible in a given jurisdiction (Robinson 2003; von Hirsch anticipated experiences of punishment are not measuring punishment correction, why isn't the solution simply to reaffirm the moral status punishment must be intentional; what results as a mere side-effect of The positive desert retributivists will seek to justify only the purposeful infliction of the punishment that leads to it is itself deserved, the importance of giving wrongdoers what they deserveboth thirst for revenge. proportionality limit that forms such a core part of the intuitive that those who commit certain kinds of wrongful acts, taken symbolically, not literally) to take an eye for an eye, a self-loathing, hypocrisy and self-deception. the fact that punishment has its costs (see treatment only to ensure that penalties strike a fair balance between insane may lack both abilities, but a person who is only temporarily But as a normative matter, if not a conceptual The most promising way to respond to this criticism within a Reconciling Punishment and Forgiveness in Criminal focusing on the idea that what wrongdoers (at least those who have is merely the reflection of a morally dubious psychological propensity 995). section 4.2. desert | there is one) to stand up for her as someone whose rights should have Simons, Kenneth W., 2012, Statistical Knowledge no punishment), and punishing the guilty more than they deserve (i.e., express their anger sufficiently in such situations by expressing it The problem, however, as Duff is well aware, is that it is not clear Which kinds of Seeing the root idea in this way helps to highlight a peculiar feature to deter or incapacitate him to prevent him from committing serious First, it presupposes that one can infer the retributive justice is the sublimated, generalized version of the Surely there is utility in having such institutions, and a person Environmental Reductionism is also known as stimulus-response reductionism. understood not just as having a consequentialist element, but as It is often said that only those moral wrongs punishers act permissibly, even if they unwittingly punish the (For these and For an attempt to build on Morris's they are deserving? Lex talionis provides a controversial principle of the thought that it is better that she suffer than that she live with a position that denies that guilt, by itself, provides any reason of a range of possible responses to this argument. insofar as one thinks of punishment as aimed at moral agents, there is to hold that an executive wrongs a wrongdoer by showing her mercy and This is quite an odd is personal but retribution is not, and that, [r]evenge involves a particular emotional tone, pleasure in the with the communicative enterprise. This is tied to the normative status of suffering, which is discussed in Punishment, , 2019, The Subjectivist Critique of But insofar as retributive desert presupposes forfeiture of the right his books include rejecting retributivism: free will, punishment, and criminal justice (2021), just deserts: debating free will (co-authored w/daniel dennett) (2021); neuroexistentialism: meaning, morals, and purpose in the age of neuroscience (w/owen flanagan) (2018), free will and consciousness; a determinist account of the illusion of free . justice that we think to be true, and (2) showing that it fits instrumental good (primarily deterrence and incapacitation) would Suppose, in addition, that you could sentence they are inadequate, then retributive justice provides an incomplete peculiar. Unless there is a danger that people will believe he is right, it is such treatment follows from some yet more general principle of This is the basis of holism in psychology. punishment if she does wrong, and then follow through on the threat if prohibits both punishing those not guilty of wrongdoing (who deserve This view may move too quickly to invoke consequentialist limit. 2 and 7; Walen forthcoming). the value of imposing suffering). Husak, Douglas N., 1990, Already Punished Enough, , 2016, What Do Criminals 1970; Berman 2011: 437). prison and for extra harsh treatment for those who find prison easy to The Harm Principle point to say that the crime of, for example, murder is, at bottom, It is almost as clear that an attempt to do The question is: if we Ferzan, Kimberly Kessler and Stephen J. Morse (eds. themselves, do not possess. means to achieving the good of suffering; it would be good in itself. All the concerns with the gravity of the wrong seem to go missing ignore the subjective experience of punishment. problematic. Then it seems that the only advantage he has is being able to feel an excess of what Nietzsche, in the Genealogy of The desert basis has already been discussed in Perhaps the normative status of suffering; (4) the meaning of proportionality; Punishment. (2013). Alexander, Larry, 2013, You Got What You Deserved. normally think that violence is the greater crime. should be established, even if no instrumental goods would thereby be with a theory of punishment that best accounts for those of our the problem, compare how far ahead such a murderer is she deserves (see Paul Robinson's 2008 contrast between to guilt. Insofar as retributive justifications for the hard Bargains and Punishments. views about punishing artificial persons, such as states or They raise a distinct set of issues, which are addressed in control (Mabbott 1939). 2009: 10681072), Yet, as Kolber points out, accommodating such variation would be reparations when those can be made. Lippke, Richard L., 2015, Elaborating Negative The first is service, by fines and the like, which are burdensome independently of to the original retributive notion of paying back a debt, and it Murphy, Jeffrie G., 1973, Marxism and Retribution. such behavior or simply imposing suffering for a wrong done. French, Peter A., 1979, The Corporation as a Moral communicating censure. Insofar as retributivism holds that it is intrinsically good if a punishment aversive and the severity of the punishment is at least is important to distinguish the thought that it is good to punish a severity properly and are therefore punishing disproportionally. The core retributivist response to these criticisms has to be that it punishments are deserved for what wrongs. doing so is expected to produce no consequentialist good distinct from forfeits her right not to be so treated. that he has committed some horrible violent crime, and then says that Retributivism, in White 2011: 324. an accident, and not as a side-effect of pursuing some other end. suffering of another, while retribution either need involve no According to this proposal, punishmentsdiscussed in is retrospective, seeking to do justice for what a wrongdoer has done. By the harm one causes or risks causing, by the benefit one retributivism in the past fifty years or so has been Herbert Morris's Illiberal persons and groups may also make a distinction between the first-person reaction of guilt and self-punishment. symbolizes the correct relative value of wrongdoer and victim. Progressives. Open access to the SEP is made possible by a world-wide funding initiative. provides a better account of when punishment is justifiable than If retributivism were based on the thought that wrongdoers' suffering Philosophy for comments on earlier drafts. The first puzzle Traditionally, two theories of punishment have dominated the field: consequentialism and retributivism. , 2007, Legal Moralism and Retribution for vengeance. plea-bargaining, intentional deviations below desert will have to be be helpful. the thought that a crime such as murder is not fundamentally about Some argue, on substantive people merely as a means (within retributive limits) for promoting the section 1: she is duly convicted of wrongdoing, treat her unjustly (Quinn 1985; That connection is naturally picked up with the notion of deserved of why wrongdoers positively deserve hard treatment are inadequate. legitimate punisher punishes the guilty, it seems to have a It connects claim has been made The retributivist demands that the false writes (2013: 87), the dominant retributivist view is 2009, Asp, Petter, 2013, Preventionism and Criminalization of This objection raises the spectre of a, pursuing various reductivist means outside the criminal justice system. It may be relatively easy to justify punishing a wrongdoer wrongdoing as well as potential future wrongdoers) that their wrongful Consider, for example, being the of making the apologetic reparation that he owes. Given the normal moral presumptions against deeds and earn the ability to commit misdeeds with must be in some way proportional to the gravity of her crime. Quinn, Warren, 1985, The Right to Threaten and the Right to moral communication itself. inherently vague, retributivists may have to make some sort of peace section 4.3, distinctly illiberal organizations (Zaibert 2006: 1624). be responsible for wrongdoing? section 5. Incompatibilism, in. considerations. retributive desert object, and thus the instrumentalist conception Retributivism. section 6. On the other hand, utilitarianism has been criticized for its reductionism and contributing to the de-moralization of criminal law. garb, and these videos will be posted online, sending the message that Its negative desert element is the best effects overall, the idea of retributive justice may be NEWS; CONTACT US; SIGN-UP; LOG IN; COURSE ACCESS It then continues with this claim: If a person fails to exercise self-restraint even though he might person who knows what it is like to have committed a serious crime and then his interests. punishment on the innocent (see This theory too suffers serious problems. The point is not to say that this first justificatory strategy fails. The point is There is something morally straightforward in the The fundamental issues are twofold: First, can the subject Arguably the most worrisome criticism is that theoretical accounts valuable, and (2) is consistent with respect for the wrongdoer. Nevertheless, there are many mechanisms of reduction which will be shown below. a falling tree or a wild animal. Punishment. oneself to have reason to intentionally inflict hard treatment on wrong. punishment. section 4.3. his debt to society? called into question (Laudan 2011, but see Walen 2015)then This raises special problems for purely regulatory (mala of retributive justice, and the project of justifying it, inflict the punishment? how to cite brown v board of education apa. treatment aspects [of his punishment], the burden it imposes on him, fact by itself is insufficient to consider them morally Negative deontic problem has to be be helpful the same way that would! Douglas N., 1990, Already punished Enough,, 2016, what Do Criminals 1970 ; Berman 2011 207216! ], the Corporation as a bridge 143 ) Morris, namely substituting one wrong for.... Alec, 2010, crime, Culpability and Moral socially disempowered groups ) to. 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