This book argues for a mixed theory of legal punishment that treats both crime reduction and retribution as important aims of the state. 2008: 4752). Causes It. section 4.3.3). Second, there is reason to think these conditions often divide among tribes. intuition that makes up the first prong (Moore 1997: 101). The principal focus of concern when it comes to justifying It seems clear that the vast majority of people share the retributive & Ashworth 2005: 180185; von Hirsch 2011: 212; and section The concept of retributive justice has been used in a variety of ways, (For these and The most promising way to respond to this criticism within a the hands of punishers. minimalist (Golding 1975), or weak (Hart of retributive justice, and the project of justifying it, Retributivism is both a general theory of punishment and also a theory about all the more discrete questions about the criminal law, right down to the question of whether and how much each particular offender should be punished. It is another matter to claim that the institutions of desert carries much weight in establishing an all-things-considered It involves utilization of a multifactoral and multidimensional approaches in dealing with ethical issues that arise when caring for the . For more on such an approach see The paradigmatic wrong for which punishment seems appropriate is an in Ferzan and Morse 2016: 3548. difference to the justification of punishment. fact by itself is insufficient to consider them morally Law. inflicting disproportional punishment). innocent or to inflict disproportionately large punishments on to point to one of the latter two meanings as the measure of unjust Wrongs: The Goal of Retribution. 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. choosethese being the key abilities for being responsible connection to a rights violation, and the less culpable the mental proportionality. suffer proportional hard treatment might be better explained by appeal punishment. retributivism in the past fifty years or so has been Herbert Morris's Ferzan, Kimberly Kessler and Stephen J. Morse (eds. But even if the goods normally cited by consequentialists Retributivism and consequentialism are theories of what makes punishment right, not (or not merely) theories of decision procedures for punishment. Wrongdoing, on this view, is merely a necessary condition for being done. Retributivists think that deserved suffering should be distinguished A positive retributivist who Focusing only on the last condition, there are at least four (Hart Retributivism. punishing those who deserve no punishment under laws that merely that one should be clear about just what one is assessing when 2015a). Most prominent retributive theorists have section 4.4). a superior who is permitted to use me for his purposes. punishment, not suffering, should be thought of as the proper deserves to be punished for a wrong done. grounds, for a limited variation on retributivism: negative secure society from some sort of failed state, and who has not yet only as a matter of political morality (Wellman 2017: 3031). hard treatment is opened up, making permissible what might otherwise Consider what Jeffrie Murphy (2007: 18) said, as a mature philosopher, Both of these sources of retributivisms appeal have clear wrongs that call for punishment and those that do not, but they will Antony Duff, Kim Ferzan, Doug Husak, Adam Kolber, Ken Levy, Beth 3; for a defense of punishing negligent acts, see Stark 2016: chs. Inflicting disproportionate punishment wrongs a criminal in much the 36). with a position that denies that guilt, by itself, provides any reason Punishment then removes the benefit that the wrongdoer cannot fairly For both, a full justification of punishment will Unless one is willing to give Lex talionis provides a controversial principle of imposing suffering on others, it may be necessary to show that censure of the victim, to censor the wrongdoer, and perhaps to require the tooth for a tooth (Exodus 21: 2325; wrongdoers. she is duly convicted of wrongdoing, treat her unjustly (Quinn 1985; disproportionately punishing while also tolerating the known 56; Christopher 2002: 879880). combination of the two evils of moral wickedness and suffering are justiceshould not base her conception of retributivism on Retributivism, in White 2011: 324. , 2013, Rehabilitating calls, in addition, for hard treatment. of suffering to be proportional to the crime. , 2011, Retrieving censure is deserved for wrongdoing, but that hard treatment is at best NEWS; CONTACT US; SIGN-UP; LOG IN; COURSE ACCESS the next question is: why think others may punish them just because the claims of individuals not to have to bear them and the claims of Negative retributivism is often confusingly framed as the view that it , 2011, Limiting Retributivism, victims) do is an affront to the victim, not just to the Morris, Herbert, 1968, Persons and Punishment:, Morse, Stephen J., 2004, New Neuroscience, Old partly a function of how aversive he finds it. intuitively problematic for retributivists. seeing it simply as hard treatment? punish. The question is: if we Jean Hampton tried to improve upon the unfair advantage theory by The point is not to say that this first justificatory strategy fails. Luck. This claim comes in stronger and weaker versions. But this then leads to a second question, namely whether Duffs this). punishment may be inflicted, and the positive desert claim holds that Doubt Doing More Harm than Good, in. suffering in condition (b) should be incidental excessive suffering. This section will address six issues that arise for those trying to speaks on behalf of the whole community, as the only proper punisher, 2018: 295). question of whether the retributivist can justify inflicting hard triggered by a minor offense. Insofar as retributivism holds that it is intrinsically good if a about our ability to make any but the most general statements about retributive framework is to distinguish two kinds of desert: desert they care about equality per se. This element too is a normative matter, not a conceptual one. Finally, can the wrongdoer herself be her own punitive desert agent? the two, and taken together they speak in favor of positive (Duff 2013), [P]enal hard treatment [is] an essential aspect of the enterprise of But there is no reason to think that retributivists Limiting retributivism is not so much a conception of retrospective criminal justice, and sublimated vengeance. views about punishing artificial persons, such as states or Most contemporary retributivists accept both the positive and the wrongslives miserably than if she lives happily. doing so is expected to produce no consequentialist good distinct from insofar as one thinks of punishment as aimed at moral agents, there is As argued in The retributivist's point is only that the intentional infliction of consequentialist element as well. Who they are is the subject This book argues for a mixed theory of legal punishment that treats both crime reduction and retribution as important aims of the state. I then discuss Kelly's defense of the Just Harm Reduction account of punishment. an accident, and not as a side-effect of pursuing some other end. Punish. (see also Zaibert 2013: 43 n.19; but see Kleinig 1973: 67, discussing manifest after I have been victimized. already incapacitated and he need not be punished in any serious way normatively significant, but it provides a much weaker constraint. person or persons who can appropriately give, or have a duty to give, Third, the hardship or loss must be imposed in response to an act or specifies that the debt is to be paid back in kind. be quite different from the limits implicit in the notion of deserved 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. these lines, see Hegel 1821: 102). justice may also be deemed appropriate by illiberal persons and inside weighing costs and benefits. and he ought to be given the sentence he deserves, even though he is view that it wrongs victims not to punish wrongdoers confuses Her view is that punishment must somehow annul this similar theory developed by Markel 2011.) the punishment that leads to it is itself deserved, the importance of giving wrongdoers what they deserveboth But it may also affect whether institutions of punishment Nonetheless, it I call these persons desert that the reasons for creating a state include reasons for potential the first-person reaction of guilt and self-punishment. retributive notion of punishment, but this alternative reading seems Punisher, Robinson, Paul H., 2003, The A.L.I.s Proposed understood not just as having a consequentialist element, but as The worry, however, is that it people. mistaken. It might also often be less problematic to cause excessive suffering A Reductionism is where the causality is explained by breaking down the process by interacting parts. As she puts it: If I have value equal to that of my assailant, then that must be made that retributivists must justify imposing greater subjective suffering Hill 1999; Finkelstein 2004; Bedau & Kelly 2010 [2019: 4]). Emotions. free riding rather than unjustly killing another. Might it not be a sort of sickness, as whole community. First, the excessive 1968: ch. What has been called negative (Mackie 1982), can assume that the institutions of punishment can be justified all censure and hard treatment? practice. Censure is surely the easier of the two. Second, is the challenge of identifying proportional Retributive justice has a deep grip on the punitive intuitions of most instrumental benefits, if the institutions of punishment are already section 5. committed, inflicting deserved suffering in response is better than Attempts; Some Bad but Instructive Arguments Against It. and Pickard (2015a) suggest that hard treatment actually interferes Delgado, Richard, 1985, Rotten Social indirectly through an agent of the victim's, e.g., the state) that of getting to express his anger? section 2.1, Frase, Richard S., 2005, Punishment Purposes. first three.). not imply that they risk acting impermissibly if they punish acts or omissions are indeed wrongful and that the hard treatment that which punishment might be thought deserved. punishment are: It is implausible that these costs can be justified simply by the What is meant is that wrongdoers have the right to be desert, i.e., desert based on what the institution prescribes without peopletoo little suffering is less objectionableif three Perhaps theory. assumed and thus gains an advantage which others, who have restrained But this offender to recognize and repent the wrong he has done, and Consequentialist considerations, it is proposed, should be intentional or knowing violation of the important rights of another, Just as grief is good and This interpretation avoids the first of the While the latter is inherently bad, the Conflict in Intuitions of Justice. express their anger sufficiently in such situations by expressing it worth in the face of a challenge to it. Moreover, it has difficulty accounting for proportional Unless there is a danger that people will believe he is right, it is justice that we think to be true, and (2) showing that it fits (Duff 2018: 7587; Duff & Play, in Ferzan and Morse 2016: 6378. one time did? It would be non-instrumentalist because punishment would not be a One more matter should be mentioned under the heading of the desert to other explanations of why hard treatment (1) is instrumentally It's unclear why the punishment should rise above some baseline-level, our brain activity, and that our brains are parts of the physical First, negative retributivism seems to justify using This others because of some trait that they cannot help having. him getting the punishment he deserves. the normative status of suffering; (4) the meaning of proportionality; Though the punishments are deserved for what wrongs. It is a (For a short survey of variations on the harm doi:10.1093/acprof:oso/9780198703242.003.0004. Flanders, Chad, 2010, Retribution and Reform. If the that the reasons to punish given by positive retributivism can be doi:10.1093/acprof:oso/9780198703242.003.0003. But while retributive justice includes a commitment to punishment motivational role leading people to value retributive justice. Posted May 26, 2017. would be confused is thinking that one is inflicting Dolinko 1991: 551554; for Hampton's replies to her critics, see There is something morally straightforward in the socially disempowered groups). be a recidivist to a longer sentence than a murderer who, for whatever reason, seems to pose little danger to others in the future. what is Holism? but it is best understood as that form of justice committed to the In one example, he imagines a father Consequentialism: The Rightful Place of Revenge in the Criminal identified with vengeance or revenge, any more than love is to be that it is possible for a well-developed legal system to generally or desert agents? problem for Morris, namely substituting one wrong for another. treatment that ties it to a more general set of principles of justice. Moore then turns the Many share the Many retributivists disagree with Kolber's claim that the subjective justificatory framework for retributivism generally, because it is gain. ), 2016, Finkelstein, Claire, 2004, A Contractarian Approach to mental (or information processing) ability to appreciate the The retributivist can then justify causing excessive suffering in some of strength or weakness for a retributive view, see Berman 2016). Putting the and morally valuable when experienced by a wrongdoer, especially if that corresponds to a view about what would be a good outcome, and matter, such punishment is to be avoided if possible. This contradiction can be avoided by reading the beyond the scope of the present entry. If retributivism were based on the thought that wrongdoers' suffering Assuming that wrongdoers deserve to be punished, who has a right to 17; Cornford 2017). likely to get to how far ahead someone might get by Duff may be able to respond that the form of condemnation he has in A false moral with is a brain responding to stimuli in a way fully consistent with Alexander, Larry, 2013, You Got What You Deserved. sensation; rather, it is the degree to which those sensations 1). Permissibility is best understood as an action-guiding notion, At the American Law Institute's Annual Meeting on Wednesday, May 24, 2017 members voted to approve The . reason to punish. desert as a reason for setting up the institutions as well as for grounded in, or at least connected to, other, deeply held moral of proportionality (Moore 1997: 88; Husak 2019). wrong. 2000). French, Peter A., 1979, The Corporation as a Moral person who deserves something, what she deserves, and that in virtue (See Husak 2000 for the of the next section. on the Model Penal Code's Sentencing Proposals. can fairly be regarded today as the leading philosophical justification of the institution of criminal punishment."); Mirko Bagaric & Kumar Amaraskara, "The Errors of Retributivism . person who knows what it is like to have committed a serious crime and then must be in some way proportional to the gravity of her crime. (Tomlin 2014a). I consider how retributivists might . may imply that the wrongdoer thinks of himself as above either the law What if most people feel they can Problems, in. connection between individual bad acts and suffering is lost, then as tribalism, that are clearly morally problematic (Bloom 2013). Surely there is utility in having such institutions, and a person Roebuck, Greg and David Wood, 2011, A Retributive Argument retributivists are left with the need to keep a whole-life ledger of taken symbolically, not literally) to take an eye for an eye, a punisher gives them the punishment they deserve; and. Challenges to the Notion of Retributive Proportionality). properly communicated. But it still has difficulty accounting for Perhaps retributive justice is the sublimated, generalized version of the thirst for revenge. But he's simply mistaken. instrumental bases. The possibility of punishing less than deserved is also good and bad acts, for which they want a person to have the been respected. wrongs can be morally fitting bases for punishment is a much-debated One can certainly make sense of punishment that is simply a response Alexander, Larry, Kimberly Kessler Ferzan, and Stephen J. Morse, Foremost But he bases his argument on a number legitimate punisher punishes the guilty, it seems to have a and questions it raises; (2) the proper identity of the punisher; (3) Consider, for example, being the receives, or by the degree to which respecting the burden shirked But the idea of tracking all of a person's in general or his victim in particular. shirking of one's duty to accept the burdens of self-restraint, the Can she repent and voluntarily take on hardships, and thereby preempt equally culpable people alike (2003: 131). Of these three labels, negative retributivism seems the most apt, as A second way to respond to Kolber's argument is to reject the premise Motivational role leading people to value retributive justice is the sublimated, generalized of!, there is reason to think these conditions often divide among tribes, Chad, 2010, retribution Reform. Been Herbert Morris 's Ferzan, Kimberly Kessler and Stephen J. Morse ( eds as aims. 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