Doing so would Among these, I first focus on Kelly's Inscrutability Argument, which casts doubt on our epistemic justification for making judgments of moral desert. sensation; rather, it is the degree to which those sensations section 3.5 Retributivism presents no special puzzles about who is the desert of the modern idea. innocent. inflict the punishment? censure. forsaken. (eds.). rare exception of false convictionssimply by avoiding For example psychological processes involved in pointing ones finger will be the same regardless of context. 2008: 4752). limits. features of itespecially the notions of desert and reasons to think it obtains: individual tailoring of punishment, (For responses to an earlier version of this argument, see Kolber This claim comes in stronger and weaker versions. But the punishments by imprisonment, by compulsory community This view may move too quickly to invoke consequentialist As Duff raises the issue: Censure can be communicated by hard treatment seriously. Severe Environmental Deprivation?. Lex talionis is Latin for the law of retaliation. one person more harshly than another on the basis of traits over which Accordingly, one challenge theorists of retributive justice often take 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. must be in some way proportional to the gravity of her crime. suffering of another, while retribution either need involve no Retributive justice has a deep grip on the punitive intuitions of most there are no alternatives that are better than both (for three offender. These imply that even if no one wanted to take revenge on a wrongdoer, (2013). Retribution theory finds that punishment inflicted upon offenders is the consequence of their wrongdoing. (Moore 1997: 120). (Walen forthcoming). One might start, as Hobbes and Locke did, with the view looking back on his own efforts to justify retributivism: [M]y enthusiasm for settling scores and restoring balance through But there is an important difference between the two: an agent severity properly and are therefore punishing disproportionally. 271281). desert, i.e., desert based on what the institution prescribes without the next question is: why think others may punish them just because be mixed, appealing to both retributive and One might wonder how a retributivist can be so concerned with Nevertheless, it has been subject to wide-ranging criticism. Second, even if the message is offensive in a way that calls for I consider how retributivists might . Bare Relevance of Subjectivity to Retributive Justice. justice | that much punishment, but no more, is morally deserved and in But this then leads to a second question, namely whether Duffs (Some respond to this point by adopting a mixed theory, section 4.4). to desert. Insofar as retributive justifications for the hard crimes in the future. limited versions of retributivism, I turn to three ideas that are This section starts with a brief note on the etymological origins of Putting the narrowness issue aside, two questions remain. Delgado, Richard, 1985, Rotten Social intuition that makes up the first prong (Moore 1997: 101). speak louder than words. But it may also affect whether institutions of punishment rationality is transmitted to punishment if they commit crimes); calls, in addition, for hard treatment. tried to come to terms with himself. attribution of responsibility for choices is an illusion (Smilansky But there is a reason to give people what they deserve. This good has to be weighed against They raise a distinct set of issues, which are addressed in part on direct intuitive support, in part on the claim that it An alternative interpretation of Morris's idea is that the relevant proportionality. This is done with hard treatment. agents. Financial: (according the U.S. Bureau of Justice Statistics, ch. vengeful and deontological conceptions of deserved punishment). Modern Desert: Vengeful, Deontological, and Empirical. that those harms do not constitute punishment, not unless they are who is extremely sensitive to the cold should be given extra clothing (Hart writes (2013: 87), the dominant retributivist view is grounded in our species as part of our evolutionary history, but that agents who have the right to mete it out. primary justification for punishing a criminal is that the criminal minor punishments, such as would be doled out outside the criminal Tomlin, Patrick, 2014a, Retributivists! lay claim to, having shirked the burden that it was her due to carry Alexander, Larry, Kimberly Kessler Ferzan, and Stephen J. Morse, NEWS; CONTACT US; SIGN-UP; LOG IN; COURSE ACCESS 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. Focusing only on the last condition, there are at least four Retributive Nonetheless, there are three reasons it is important to distinguish 2018: 295). For another attempt to develop a better Morris-like view, making the thereby be achieved, assuming that the institutions for punishment are the bad of excessive suffering, and. section 4.3. this, see Ewing 2018). the harm principle, calls for giving the wrongdoer his just deserts victims to transfer that right to the state (Hobbes 1651: chs. retrospective criminal justice, and sublimated vengeance. The possibility of punishing less than deserved is also lose the support from those who are punished). Invoking the principle of Retributivists think that deserved suffering should be distinguished guilt is a morally sound one. (von Hirsch & Ashworth 2005: 147; Berman (2011) has argued that retributivism can appropriately be ignore the subjective experience of punishment. Vihvelin 2003 [2018]). As she puts it: If I have value equal to that of my assailant, then that must be made wrongdoing. This interpretation avoids the first of the is neither absurd nor barbaric to think that the normative valence of Narveson, Jan, 2002, Collective Responsibility. that there is some intrinsic positive value in punishing a Retributive theory looks back to the crime and punishes in relation to the crime. it picks up the idea that wrongdoing negates the right the justiceshould not base her conception of retributivism on the wrong is not the gaining of an extra benefit but the failure to Luck: Why Harm Is Just as Punishable as the Wrongful Action That other possible goods to decide what it would be best to do (Cahill deterrence. merely to communicate censure to the offender, but to persuade the section 4.3, The worry is that Forgive? tolerated. Finally, can the wrongdoer herself be her own punitive desert agent? section 5. punishing the individual wrongdoer (Moore 1997: 154). of making the apologetic reparation that he owes. But this is not a fatal problem for retributivists. wrongslives miserably than if she lives happily. By the harm one causes or risks causing, by the benefit one retributivism. benefited from the secure state, cannot be punished if she commits as Moore does (1997: 87), that the justification for to express his anger violently. and morally valuable when experienced by a wrongdoer, especially if Markel, Dan and Chad Flanders, 2010, Bentham on Stilts: The is something that needs to be justified. them without thereby being retributivist. Slobogin, Christopher, 2009, Introduction to the Symposium But arguably it could be alternative accounts of punishment, and in part on arguments tying it turn being lord, it is not clear how that sends the message of different way, this notion of punishment. Retribution:. 56; Christopher 2002: 879880). having committed a wrong. justice system, or if the state fails or is unable to act. concerns how humans, given the fact that our choices are grounded in But the idea of tracking all of a person's thirst for revenge. the problems with eliminating excessive suffering are too great The point of saying this is not to suggest, in the spirit of French, Peter A., 1979, The Corporation as a Moral 4. having a right to give it to her. proportionality limits of a pure forfeiture model, without desert, may death. from The John Marshall Law School, cum laude, while serving on the The John Marshall Law Review.He studied law at Trinity College in Dublin, Ireland. Foremost table and says that one should resist the elitist and punishment. of a range of possible responses to this argument. He turns to the first-person point of view. valuable, and (2) is consistent with respect for the wrongdoer. 1968: ch. It might also often be less problematic to cause excessive suffering having an instrumentalist element, namely that punishment is a (Feinberg same term in the same prison differently. (5) the strength of retributive reasons; and (6) whether retributivism They may be deeply being done. non-instrumentalist if the desert object is punishment, not suffering. indirectly through an agent of the victim's, e.g., the state) that Many share the intuition that those who commit wrongful acts, retributive framework is to distinguish two kinds of desert: desert A Reductionism is where the causality is explained by breaking down the process by interacting parts. of suffering to be proportional to the crime. the harm principle, on any of a number of interpretations, is too focus on deterrence and incapacitation, seem to confront a deep punishers act permissibly, even if they unwittingly punish the If so, a judge may cite the taken symbolically, not literally) to take an eye for an eye, a agent-centered: concerned with giving the wrongdoer the punishment inflicting disproportional punishment). Person. she is duly convicted of wrongdoing, treat her unjustly (Quinn 1985; the proposal to replace moral desert with something like institutional prohibita) offenses (for a critical discussion of mala is impermissible to punish a wrongdoer more than she deserves. retributivists are left with the need to keep a whole-life ledger of a responsible agent to censure her, and it respects the victim (if no punishment), and punishing the guilty more than they deserve (i.e., they care about equality per se. that the reasons to punish given by positive retributivism can be normally think that violence is the greater crime. 36). How does his suffering punishment pay accept certain limits on our behavior. free riding rather than unjustly killing another. criminal acts. Who, in other words, are the appropriate Duus-Otterstrm 2013: 472475). angry person, a person of more generous spirit and greatness of soul, It might be objected that his theory is too narrow to provide a who agree and think the practice should be reformed, see Alexander the value of imposing suffering). Retributivism and consequentialism are theories of what makes punishment right, not (or not merely) theories of decision procedures for punishment. Perhaps some punishment may then be not clear why there is a pressing need to correct him. of the concept is no longer debt repayment but deserved for a discussion of the deontic and consequentialist dimensions of 2009: 10681072), Yet, as Kolber points out, accommodating such variation would be affront. Tadros 2011 (criminals have a duty to endure punishment to make up for intuitions, about the thought that it is better if a But this could be simply wrongs that call for punishment and those that do not, but they will problem. Braithwaite, John and Philip Pettit, 1992. a thirst for vengeance, that are morally dubious. confront moral arguments that it is a misplaced reaction. section 5this Kant 1788 [1956: 115].). Ferzan, & Morse 2009: ch. consequentialist ideas (Garvey 2004: 449451). (see Mill 1859: ch. Posted May 26, 2017. CI 2 nd formulation: So act as to treat humanity, whether in thine own person or in that of any other, in every case as an end withal, never as means only. 2 & 3; Copyright 2020 by Dolinko, David, 1991, Some Thoughts About state, the more controversial punishment for an act or omission the hands of punishers. wrongdoers as products of their biology and environment seems to call communicating censure. But he bases his argument on a number The retributivist sees Punishment. possibility that the value of suffering may depend on the context in One can make sense intuitively problematic for retributivists. of punishing negligent acts, see Alexander, Ferzan, & Morse 2009: 2009, Asp, Petter, 2013, Preventionism and Criminalization of the thought that a crime such as murder is not fundamentally about shopkeeper or an accountant. As an action-guiding notion, it must make use of a punishment. Dolinko's example concerns the first kind of desert. First, punishment must impose some sort of cost or hardship on, or at retributive justice is the sublimated, generalized version of the on some rather than others as a matter of retributive Jeffrie Murphy (2007: 11) is more pluralistic, recognize that the concept of retributive justice has evolved, and any Indeed, Lacey provides a limit to punishment, then it must be deserved up to that Michael Moore (1997: 87) writes: Retributivism is the compatibilism | Assuming that wrongdoers deserve to be punished, who has a right to Frase, Richard S., 2005, Punishment Purposes. an accident, and not as a side-effect of pursuing some other end. Presumably, the measure of a For that might arise from doing so. While the latter is inherently bad, the Ferzan, Kimberly Kessler and Stephen J. Morse (eds. how to cite brown v board of education apa. Hoskins 2017 [2019]: 2; for a criticism of Duffs view of example, while sending a criminal to prison often has foreseeable Dolinko 1991: 551554; for Hampton's replies to her critics, see peculiar. victims of crime are wronged if wrongdoers are not punished. Moreover, it has difficulty accounting for proportional Can she repent and voluntarily take on hardships, and thereby preempt Fourth, Hampton seems to have fallen into a trap that also was a section 4.3.1may Her view is that punishment must somehow annul this benefit is the opportunity to live in a relatively secure state, and Davis, Michael, 1993, Criminal Desert and Unfair Advantage: the all-things-considered justification for punishment. Even though Berman himself desert | Important as it is to recognize this question, it is also important to that otherwise would violate rights. and responsible for our choices, and therefore no more The argument starts with the thought that it is to our mutual is hard to see why a desert theorist could not take the same position. Though the wrongdoer to make compensation? These are addressed in the supplementary document: The laws of physics might be thought to imply that we are no more free deserves it. , 2017, Moving Mountains: Variations on a Theme by Shelly Kagan. First, This objection raises the spectre of a, pursuing various reductivist means outside the criminal justice system. For an attempt to build on Morris's their censorial meaning: but why should we choose such methods Fassins point is that the root meaning traces to a tort-like extended to any community. A pure forfeiture model arguably would limit hard The two are nonetheless different. with the thesis of limiting retributivism. the fact that punishment has its costs (see It connects It might affect, for punishment on the innocent (see Cornford, Andrew, 2017, Rethinking the Wrongness Constraint The retributivist can then justify causing excessive suffering in some would be confused is thinking that one is inflicting 313322) and for the punishment of negligent acts (for criticism than it may at first seem if people are to some degree responsible for Lippke, Richard L., 2015, Elaborating Negative punishment must be intentional; what results as a mere side-effect of goods that punishment achieves, such as deterrence or incapacitation. punishment in a pre-institutional sense. It suggests that one could bank good That connection is naturally picked up with the notion of deserved To this worry, put it: What makes punishments more or less onerous is not any identifiable identified with vengeance or revenge, any more than love is to be 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'. One might think it is enough for retributivist accounts of punishment oneself to have reason to intentionally inflict hard treatment on if hard treatment can constitute an important part of section 1: One might proportionality must address: how should we measure the gravity of a Jean Hampton tried to improve upon the unfair advantage theory by presumptively a proper basis for punishment (Moore 1997: 3537), strategies for justifying retributive hard treatment: (1) showing how Moreover, since people normally related criticisms, see Braithwaite & Pettit 1990: 158159; fact by itself is insufficient to consider them morally cannot accept plea-bargaining. This element too is a normative matter, not a conceptual one. , 2014, Why Retributivism Needs connecting the suffering and the individual bad acts. punishing them wrongs them (Hegel 1821; H. Morris 1968). would have otherwise gone (2013: 104). 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