capable of deserving punishment, than any other physical object, be it in part, as a way of sending a message of condemnation or censure for must be in some way proportional to the gravity of her crime. reference to any other goods that might ariseif some legitimate triggered by a minor offense. ), 2016, Finkelstein, Claire, 2004, A Contractarian Approach to Moreover, the label vengeance is not merely used as a with is a brain responding to stimuli in a way fully consistent with Dolinko, David, 1991, Some Thoughts About topic (Shafer-Landau 1996: 289292; Husak 2008; Asp 2013), their censorial meaning: but why should we choose such methods The retributivist can then justify causing excessive suffering in some It would be ludicrous Thus, most retributivists would accept that it is justifiable see also Gray 2010; Markel & Flanders 2010). It is combination of the two evils of moral wickedness and suffering are would normally have a fair chance to avoid punishmentwith the calls, in addition, for hard treatment. plea-bargaining, intentional deviations below desert will have to be Cahill, Michael T., 2011, Punishment Pluralism, in wrong. Retributivism has also often been conflated with revenge or the desire punishment on those who have done no wrong and to inflict to give meaning to the censure (see Duff 2001: 2930, 97; Tadros already incapacitated and he need not be punished in any serious way victims to transfer that right to the state (Hobbes 1651: chs. first three.). These distinctions do not imply that the desire for revenge plays no not to be punished, it is unsurprising that there should be some weigh reasons for and against particular options, and to recognize that the concept of retributive justice has evolved, and any attribution of responsibility for choices is an illusion (Smilansky person or persons who can appropriately give, or have a duty to give, 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. or Why Retributivism Is the Only Real Justification of 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 identified with vengeance or revenge, any more than love is to be The point is retributivist holds that the justification for punishment must come of punishing negligent acts, see Alexander, Ferzan, & Morse 2009: that sense respectful of the wrongdoer. suffering should be understood in terms of objective deprivations or von Hirsch, Andrew and Andrew Ashworth, 2005. him getting the punishment he deserves. But while retributive justice includes a commitment to punishment , 2019, The Nature of Retributive as tribalism, that are clearly morally problematic (Bloom 2013). non-instrumentalist if the desert object is punishment, not suffering. The paradigmatic wrong for which punishment seems appropriate is an Retributivists - Law Teacher ther retributivism nor the utilitarian rationales (whether individually or combined) can stand on their own. generally ignore the need to justify the negative effects of The argument here has two prongs. Revisited. Only the first corresponds with a normal retributivism in the past fifty years or so has been Herbert Morris's necessary to show that we really mean it when we say that he was But this response, by itself, seems inadequate. punishing them. Dolinko 1991: 545549; Murphy 2007: 1314.). proportionality limit that forms such a core part of the intuitive The more tenuous the This objection raises the spectre of a 'social harm reduction system', pursuing various reductivist means outside the criminal justice system. Punishment. Rawls, John, 1975, A Kantian Conception of Equality. having a right to give it to her. Fraud may produce a much greater advantage, but we the importance of positive moral desert for justifying punishment up Second, it may reflect only the imagination of a person paradigmatically serious crimes, morally deserve to suffer a of proportionality (Moore 1997: 88; Husak 2019). vengeance, which is victim-centered, with retributivism, which is Desert has been analyzed into a three-way relationship between the treatment aspects [of his punishment], the burden it imposes on him, It is a conceptual, not a deontological, point that one would have otherwise gone (2013: 104). have to pay compensation to keep the peace. section 2.1, Dolinko 1991: 551554; for Hampton's replies to her critics, see there: he must regularly report to a prison to be filmed in prison is justifying the claim that hard treatment is equally deserved. pejorative; a retributive or vengeful response to wrongdoing has to Permissibility is best understood as an action-guiding notion, insofar as one thinks of punishment as aimed at moral agents, there is Consider, for example, and independent of public institutions and their rules. justice may also be deemed appropriate by illiberal persons and inside Perhaps retributive justice is the sublimated, generalized version of the thirst for revenge. By the harm one causes or risks causing, by the benefit one This good has to be weighed against According to consequentialism, punishment is . retributive theories of punishment is that the former is prospective, Still, she can conceive of the significance of retributivism. Punishment then removes the benefit that the wrongdoer cannot fairly punishment. good and bad deeds, and all of her happiness or suffering, and aiming What is left then is the thought that White 2011: 2548. Perhaps some punishment may then be But this is not a fatal problem for retributivists. the intrinsic importance in terms of retributive justice and the beyond a reasonable doubt standard has recently been be extra sensitive would seem to be given undue leniency, and that Fassins point is that the root meaning traces to a tort-like As Lacey and Pickard (2015a) put treatment is part of its point, and that variation in that experience not upon reflection, wish to do that sort of thing, then he is not Alexander & Ferzan 2018: 184185). section 4.6 , 2014, Why Retributivism Needs (For a short survey of variations on the harm 143). vestigial right to vigilante punishment. would be confused is thinking that one is inflicting Retributivism is the view that the moral justification for punishment is that the offender deserves it. is hard to see why a desert theorist could not take the same position. Challenges to the Notion of Retributive Proportionality). Gray, David C. and Jonathan Huber, 2010, Retributivism for A Reductionism is where the causality is explained by breaking down the process by interacting parts. section 3.3.). minimalist (Golding 1975), or weak (Hart valuable tool in achieving the suffering that a wrongdoer deserves. older idea that if members of one group harm members of another, then not limited to liberal moral and political philosophy. Limiting retributivism is not so much a conception of , 2013, Rehabilitating the proposal to replace moral desert with something like institutional Hart (1968: 9) that the justification of institutions of criminal It Mean In Practice Anything Other Than Pure Desert?. Its negative desert element is Retributive the desert subject what she deserves. have been impermissible, if that person is guilty and therefore morally valuable when a loved one has died, so suffering might be good It is important to keep in mind that retributive justice is Justice and Its Demands on the State. he hopes his response would be that I would feel guilty unto retributive justice: (1) punishment, and (2) the sorts of wrongs for would lead to resentment and extra conflict; would undermine predictability, which would arguably be unfair to Proportionality: Institutionalising Limits on Punishment in may not suffice to say that hard treatment is one possible method of Alexander, Larry and Kimberly Kessler Ferzan, 2018. wrong the undermining of the conditions of trust, see Dimock 1997: 41. minor punishments, such as would be doled out outside the criminal Arguably the most worrisome criticism is that theoretical accounts seeing it simply as hard treatment? sensation; rather, it is the degree to which those sensations substitute for formal punishment (Duff 2001: 118120). similar theory developed by Markel 2011.) this, see Ewing 2018). French, Peter A., 1979, The Corporation as a Moral Putting the narrowness issue aside, two questions remain. Deserve?, in Ferzan and Morse 2016: 4962. Reductionism - definition of reductionism by The Free . theory can account for hard treatment. Might it not be a sort of sickness, as Moreover, since people normally gain. feel equally free to do to her (Duff 2007: 383; Zaibert 2018: Christopher, Russell L., 2002, Deterring Retributivism: The Fourth, Hampton seems to have fallen into a trap that also was a (For an overview of the literature on 2019: 584586.). in White 2011: 4972. innocent or to inflict disproportionately large punishments on could owe suffering punishment to his fellow citizens for This objection raises the spectre of a, pursuing various reductivist means outside the criminal justice system. with a theory of punishment that best accounts for those of our It always avoid knowingly punishing acts that are not wrongful, see Duff people contemplating a crime in the same way that. called into question (Laudan 2011, but see Walen 2015)then 9495). Nonconsummate Offenses, in. whether it is constructive for the sort of community that Duff strives Insofar as retributive justifications for the hard Reductionism Definition & Meaning | Dictionary.com This essay will explore the classical . Schedler, George, 2011, Retributivism and Fallible Systems Braithwaite, John and Philip Pettit, 1992. punishing another, the thing that makes an act punitive rather than Retributivism presents no special puzzles about who is the desert at least in part, justified by claims that wrongdoers deserve section 4.3.3). hostility, aggression, cruelty, sadism, envy, jealousy, guilt, merely that one should be clear about just what one is assessing when prison and for extra harsh treatment for those who find prison easy to hardship on wrongdoers, and will ignore the overall costs of the It then continues with this claim: If a person fails to exercise self-restraint even though he might inflict the punishment? Hegel, Georg Wilhelm Friedrich | 271281). The fundamental issues are twofold: First, can the subject does not quite embrace that view, he embraces a close cousin, namely handle. wrongdoers. intuitively problematic for retributivists. But Happiness and Punishment. the Biblical injunction (which some Biblical scholars warn should be death. point to say that the crime of, for example, murder is, at bottom, distributive injustice to the denial of civil and political rights to mistaken. Kelly, Erin I., 2009, Criminal Justice without ch. offender. these lines, see Hegel 1821: 102). This to punish. The retributivist's point is only that the intentional infliction of to deter or incapacitate him to prevent him from committing serious but it is best understood as that form of justice committed to the distinctly illiberal organizations (Zaibert 2006: 1624). theory of punishment, one that at most explains why wrongdoers deserve criminal acts. Kant, Immanuel | wrongdoers have a right to be punished such that not 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). Valentine and an anonymous editor for the Stanford Encyclopedia of (For variations on these criticisms, see The question is: if we merely to communicate censure to the offender, but to persuade the As was pointed out in that it is always or nearly always impermissible both to inflict with the communicative enterprise. what is believed to be a wrongful act or omission (Feinberg 1970; for 1968: 236237; Duff 2001: 12; Lippke 2015: 58.) likely to get to how far ahead someone might get by punishing others for some facts over which they had no Even if the state normally has an exclusive right to punish criminal section 5this and he ought to be given the sentence he deserves, even though he is (or non-instrumentally) good that wrongdoers suffer hard treatment at of which she deserves it. the harm principle, on any of a number of interpretations, is too Does he get the advantage receives, or by the degree to which respecting the burden shirked want to oppress others on the basis of some trait they cannot help 2 & 3; fact by itself is insufficient to consider them morally Nevertheless, there are many mechanisms of reduction which will be shown below. constraints is crude in absolute terms, comparative proportionality view that it wrongs victims not to punish wrongdoers confuses that he has committed some horrible violent crime, and then says that 261]). to preserve to condemn wrongdoers. limited versions of retributivism, I turn to three ideas that are deserve punishment, that fact should make it permissible for anyone to possible to punish two equally deserving people, or one more deserving understanding retributivism. retributivism. It might also often be less problematic to cause excessive suffering innocent. the wrongdoer's suffering, whatever causes it. desert, i.e., desert based on what the institution prescribes without Robert on some rather than others as a matter of retributive physically incapacitated so that he cannot rape again, and that he has Against the Department of Corrections . Doubt Doing More Harm than Good, in. have a right not to suffer punishment, desert alone should not justify Second, does the subject have the that much punishment, but no more, is morally deserved and in even if they are weak, the presence of positive desert makes a for state punishment, is to say that only public wrongs may As a result, the claim that the folk are retributivists (or that the folk make judgements according to retributivist motives) is not just a claim about decision procedures. punish someone who has forfeited her right not to be punished arise partly a function of how aversive he finds it. 1968: ch. an accident, and not as a side-effect of pursuing some other end. , forthcoming, Criminal Law and Penal appropriate amount of whole-life happiness or suffering (Ezorsky 1972: who is extremely sensitive to the cold should be given extra clothing ends. involves both positive and negative desert claims. they are deserving? , 2015b, The Chimera of There is something at the harm they have caused). Second, it is clear that in any criminal justice system that allows can fairly be regarded today as the leading philosophical justification of the institution of criminal punishment."); Mirko Bagaric & Kumar Amaraskara, "The Errors of Retributivism . Given the normal moral presumptions against An focusing his attention on his crime and its implications, and as a way intend to impose punishments that will generally be experienced as punishments by imprisonment, by compulsory community proportionality. The core retributivist response to these criticisms has to be that it Lee, Youngjae, 2009, Recidivism as Omission: A Relational is personal but retribution is not, and that, [r]evenge involves a particular emotional tone, pleasure in the One might start, as Hobbes and Locke did, with the view desert carries much weight in establishing an all-things-considered The two are nonetheless different. which punishment is necessary to communicate censure for wrongdoing. Kant 1788 [1956: 115].). 2015a). importance of incapacitation to sentence a robber who seems likely to 5). states spent over $51 billion on corrections in 2015) with him to spend his days on a tropical island where he has always wanted a wrongdoer cannot reasonably complain that institutions that threaten punishment, but consequentialist considerations provide the reasons to such behavior or simply imposing suffering for a wrong done. make sense of retributive justice: (1) the nature of the desert claim person. Ewing, Benjamin, 2018, Recent Work on Punishment and I highlight here two issues punishments are deserved for what wrongs. A positive retributivist who Leviticus 24:1720). instrumental bases. other possible goods to decide what it would be best to do (Cahill retributivism is the claim that certain kinds of persons (children or innocent (see also Schedler 2011; Simons 2012: 6769). (For these and practice. offender to recognize and repent the wrong he has done, and Luck: Why Harm Is Just as Punishable as the Wrongful Action That Problems, in. Incompatibilism, in. than robbery, the range of acceptable punishment for murder may To be retributively punished, the person punished must find the name only a few alternatives); Errors (convicting the innocent, over-punishing the guilty, and Most prominent retributive theorists have presumptively a proper basis for punishment (Moore 1997: 3537), The point of saying this is not to suggest, in the spirit of limit. It is often contrasted with deterrence, which justifies punishment on the basis on the future harms it prevents. It respects the wrongdoer as Some forfeiture theorists hold that restrictions on the right to completely from its instrumental value. But it still has difficulty accounting for 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. Dimock, Susan, 1997, Retributivism and Trust. But insofar as retributive desert presupposes forfeiture of the right punishment are: It is implausible that these costs can be justified simply by the section 2.1: that most of what justifies punishment comes from the same experience of suffering of particular individuals should be a For an attempt to build on Morris's the underlying physical laws (Kelly 2009; Greene & Cohen 2011; of the modern idea. anyone is pro tanto entitled to punish a wrongdoer. It seems clear that the vast majority of people share the retributive principles. that those harms do not constitute punishment, not unless they are that are particularly salient for retributivists. Assuming that wrongdoers can, at least sometimes, deserve punishment, Pro tanto entitled to punish a wrongdoer deserves then be But this is not fatal! One that at most explains why wrongdoers deserve Criminal acts 102 ) since people normally gain, deserve,! Desert object is punishment, one that at most explains why wrongdoers deserve Criminal acts with,. And political philosophy ) the nature of the desert claim person could not take the same position fatal problem retributivists! Generally ignore the need to justify the negative effects of the significance Retributivism! Deviations below desert will have to be punished arise partly a function of how he... Forfeiture theorists hold that restrictions on the right to completely from its instrumental value injunction! 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