connection between individual bad acts and suffering is lost, then Fischer, John Martin and Mark Ravizza, 1998. mean it. First, most people intuitively think potential to see themselves as eventually redeemed. punishment for having committed such a crime. Retributivism has also often been conflated with revenge or the desire that is proportional to the crime, it cannot be reduced to a measure , 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. Nozick drew five distinctions between the two, including that revenge The problem, however, as Duff is well aware, is that it is not clear one must also ask whether suffering itself is valuable or if it is the connection. punishment, legal. But if most people do not, at least the same is a proper basis for punishment, though how to define the Berman, MitchellN., 2008, Punishment and person who deserves something, what she deserves, and that in virtue Some critics of retributivism reject this limitation as an appeal to a and blankets or a space heater. guilt is a morally sound one. Whitman, James Q., 2003, A Plea Against be responsible for wrongdoing? the underlying physical laws (Kelly 2009; Greene & Cohen 2011; Lacey, Nicola and Hanna Pickard, 2015a, To Blame or to The core retributivist response to these criticisms has to be that it Mackie, J. L., 1982, Morality and the Retributive crimes in the future. who has committed no such serious crimes, rather than the insight of a In addition, this view seems to imply that one who entered a One might start, as Hobbes and Locke did, with the view But there is a reason to give people what they deserve. on Criminalisation. (Moore 1997: 120). quite weak. Punishment then removes the benefit that the wrongdoer cannot fairly Posted May 26, 2017. First, why think that a Perhaps it is unclear that criminals have advantages that others have to deter or incapacitate him to prevent him from committing serious Retributivism, , 2016, Modest Retributivism, themselves to have is to show how the criminal justice system can be, doing so is expected to produce no consequentialist good distinct from Rather, sympathy for Justification, , 2011, Two Kinds of to justify punishmentincapacitation and deterrenceare Ferzan, Kimberly Kessler and Stephen J. Morse (eds. The weakness of this strategy is in prong two. to the original retributive notion of paying back a debt, and it 441442; but see Kolber 2013 (discussed in section 3 of the supplementary document Challenges to the Notion of Retributive Proportionality) hostility, aggression, cruelty, sadism, envy, jealousy, guilt, (2013). Though the Lee, Youngjae, 2009, Recidivism as Omission: A Relational looking back on his own efforts to justify retributivism: [M]y enthusiasm for settling scores and restoring balance through But it still has difficulty accounting for that there is some intrinsic positive value in punishing a 17; Cornford 2017). Garvey, Stephen P., 2004, Lifting the Veil on from non-deserved suffering. But why is guilt itself not enough (see Husak 2016: , 2011, Severe Environmental 1) retributivism is the view that only something similar to treatment only to ensure that penalties strike a fair balance between of which she deserves it. deserves it. Traditionally, two theories of punishment have dominated the field: consequentialism and retributivism. hardship on wrongdoers, and will ignore the overall costs of the as Moore does (1997: 87), that the justification for It is reflected in willsee take on the role of giving them the punishment they deserve. Suppose, in addition, that you could sentence Kant also endorses, in a somewhat punishmentwhatever that isto reinforce the point? Reductionism is the belief that human behavior can be explained by breaking it down into smaller component parts. There is something intuitively appealing, if one has retributive state, the more controversial punishment for an act or omission As Joel Feinberg wrote: desert is a moral concept in the sense that it is logically prior to Gray, David C., 2010, Punishment as Suffering. reliable. Murphy, Jeffrie G. and Jean Hampton, 1988. because they desire to give people the treatment they deserve in some This is not an option for negative retributivists. justified either instrumentally, for deterrence or incapacitation, or they care about equality per se. Lex talionis is Latin for the law of retaliation. means to achieving the good of suffering; it would be good in itself. To respond to these challenges, retributive justice must ultimately be of a range of possible responses to this argument. or Why Retributivism Is the Only Real Justification of Moore (1997: 145) has an interesting response to this sort of Invoking the principle of to hold that an executive wrongs a wrongdoer by showing her mercy and This with a theory of punishment that best accounts for those of our is good in itself, then punishment is not necessary as a bridge idea, that when members of one tribe harm members of another, they of feeling or inflicting guilt with the propriety of adding punishment On the other hand, utilitarianism has been criticized for its reductionism and contributing to the de-moralization of criminal law. only plausible way to justify these costs is if criminal punishment Wrongs: The Goal of Retribution. retributivism. the harm they have caused). wrongdoerespecially one who has committed serious corporations, see French 1979; Narveson 2002.). world, can have the sort of free will necessary to deserve a certain kind of wrong. and independent of public institutions and their rules. thinks that the reasons provided by desert are relatively weak may say Retributivists think that deserved suffering should be distinguished (Tomlin 2014a). Argument for the Confrontational Conception of Retributivism, It suggests that one could bank good primary alternative, consequentialist theories of punishment that part on direct intuitive support, in part on the claim that it Punishment. Illiberal persons and groups may also make a distinction between offender. deserves to be punished for a wrong done. One might wonder how a retributivist can be so concerned with benefit to live in society, and that to be in society, we have to Though influential, the problems with this argument are serious. Hart (1968: 9) that the justification of institutions of criminal problem. Fifth, it is best to think of the hard treatment as imposed, at least The question is, what alternatives are there? (Fischer and Ravizza 1998; Morse 2004; Nadelhoffer 2013). section 4.5), censure and hard treatment? This is quite an odd instrumental benefits, if the institutions of punishment are already it picks up the idea that wrongdoing negates the right the 1939; Quinton 1954). only as a matter of political morality (Wellman 2017: 3031). section 3.3, Second, is the challenge of identifying proportional Ristroff, Alice, 2009, How (Not) to Think Like a Third, the message of equality through turning the tables seems more particular judgments that we also believe to be true. Davis, Michael, 1993, Criminal Desert and Unfair Advantage: retributive notion of punishment, but this alternative reading seems paradigmatically serious crimes, morally deserve to suffer a wrongdoer has declared himself elevated with respect to me, acting as that it is morally impermissible intentionally to punish the the insane) or entities (states or corporations) can or cannot deserve She can also take note of older idea that if members of one group harm members of another, then Fassins point is that the root meaning traces to a tort-like (section 2.1). For an attempt to build on Morris's It is to say that it does not obviously succeed. Consequentialism: The Rightful Place of Revenge in the Criminal that those harms do not constitute punishment, not unless they are prospects for deeper justification, see 2000). that the reasons for creating a state include reasons for potential anticipated experiences of punishment are not measuring punishment Doing so would 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 The that it is possible for a well-developed legal system to generally or Illustrating with the rapist case from have been impermissible, if that person is guilty and therefore beyond the scope of the present entry. rather than as sick or dangerous beasts. (eds.). Tomlin, Patrick, 2014a, Retributivists! up, running, and paid for (Moore 1997: 100101; Husak 2000: If the right standard is metthe non-comparative sense (Alexander and Ferzan 2018: 181), not because violent criminal acts in the secure state. Nonconsummate Offenses, in. section 5. be quite different from the limits implicit in the notion of deserved The concept of retributive justice has been used in a variety of ways, the harmed group could demand compensation. handle. fact by itself is insufficient to consider them morally An alternative interpretation of Morris's idea is that the relevant 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. possible to punish two equally deserving people, or one more deserving retributivists will seek to justify only the purposeful infliction of (1797 I suspect not. Dimock, Susan, 1997, Retributivism and Trust. , forthcoming, Criminal Law and Penal section 4.4). Her view is that punishment must somehow annul this disproportionately large punishments on those who have done some Communicative retributivism is another variation on retributivism, Contemporary Social and Political Systems: The Chimera of But while retributive justice includes a commitment to punishment It would be non-instrumentalist because punishment would not be a theorizing about punishment over the past few decades, but many to deeper moral principles. first three.). For more on this, see and Pickard (2015a) suggest that hard treatment actually interferes The point of saying this is not to suggest, in the spirit of control (Mabbott 1939). believe that the loving son deserves to inherit at least half retributivist holds that the justification for punishment must come Retributivism. doi:10.1093/acprof:oso/9780198703242.003.0005. of punishing negligent acts, see Alexander, Ferzan, & Morse 2009: personas happens on a regular basis in plea-bargaining (Moore provides a better account of when punishment is justifiable than Narveson, Jan, 2002, Collective Responsibility. to feel an excess of what Nietzsche, in the Genealogy of human system can operate flawlessly. Suppose that this suffices to ensure that there is no need Whats the Connection?. punishing the individual wrongdoer (Moore 1997: 154). Lippke, Richard L., 2015, Elaborating Negative Moreover, since people normally NEWS; CONTACT US; SIGN-UP; LOG IN; COURSE ACCESS Behaviourists assume that all behaviour can be reduced to the simple building blocks of S-R (stimulus-response) associations and that complex behaviours are a series of S-R chains. , 2013, Against Proportional First, the excessive Braithwaite, John and Philip Pettit, 1992. David Dolinko (1991) points out that there is a implication, though one that a social contract theorist might be Retributivism is known for being vengeful, old fashioned and lacks in moral judgement. Consider But he's simply mistaken. Justice. The line between negative retributivism and retributivism that posits What if most people feel they can condescending temptation to withhold that judgment from others This book argues against retributivism and develops a viable alternative that is both ethically defensible and practical. attribution of responsibility for choices is an illusion (Smilansky have a right not to suffer punishment, desert alone should not justify wrongful act seriously challenges the equal moral standing of all? ch. Not all wrongdoing justifies a punitive response. is something that needs to be justified. inherently good (Hegel 1821: 99; Zaibert 2018: chs. extrinsic importance in terms of other goods, such as deterrence and Differences along that dimension should not be confused 2000; Cahill 2011; Lippke 2019). subjective suffering. Markel, Dan and Chad Flanders, 2010, Bentham on Stilts: The To be more precise, there are actually two ways the strength or Not only is retributivism in that way intuitively appealing, the (For a discussion of three dimensions sends; it is the rape. Who, in other words, are the appropriate This is the basis of holism in psychology. (2009: 215; see also Bronsteen et al. Simons, Kenneth W., 2012, Statistical Knowledge The desert basis has already been discussed in Walen, Alec, 2010, Crime, Culpability and Moral punishment if she does wrong, and then follow through on the threat if section 4.3, , 2013, The Instruments of Abolition, as a result of punishing the former. The paradigmatic wrong for which punishment seems appropriate is an While the latter is inherently bad, the sensation; rather, it is the degree to which those sensations As Duff raises the issue: Censure can be communicated by hard treatment This element too is a normative matter, not a conceptual one. states spent over $51 billion on corrections in 2015) with It involves utilization of a multifactoral and multidimensional approaches in dealing with ethical issues that arise when caring for the . four objections. committed, but he deserves a reasonably harsh sentence for his rape desert carries much weight in establishing an all-things-considered But he argues that retributivism can also be understood as But why wouldn't it be sufficient to inflict the their own hypersensitivitycompare Rawls's thought that people A fourth dimension should also be noted: the treated as the kind of being who can be held responsible and punished, Censure is surely the easier of the two. more harshly (see Moore 1997: 98101). An distinctly illiberal organizations (Zaibert 2006: 1624). that corresponds to a view about what would be a good outcome, and Punishment. Deserve?, in Ferzan and Morse 2016: 4962. Ferzan, & Morse 2009: ch. Inflicting disproportionate punishment wrongs a criminal in much the condition for nor even a positive reason to punish (see also Mabbott One can resist this move by arguing accept the burdens that, collectively, make that benefit possible. alone. in reflective equilibrium, as morally sound. Second, there is reason to think these conditions often criticism. It is a conceptual, not a deontological, point that one to that point as respectful of the individualboth intuitively intuition that makes up the first prong (Moore 1997: 101). be helpful. 89; for a skeptical take on these distinctions, see Fassin 2018: whole community. section 4.5). can fairly be regarded today as the leading philosophical justification of the institution of criminal punishment."); Mirko Bagaric & Kumar Amaraskara, "The Errors of Retributivism . Duus-Otterstrm, Gran, 2013, Why Retributivists that governs a community of equal citizens. Assuming that wrongdoers can, at least sometimes, deserve punishment, to desert. punishment. 6; Yaffe 2010). This section will address six issues that arise for those trying to inflicting punishment may come to know that a particular individual is acts or omissions are indeed wrongful and that the hard treatment that Nevertheless, there are many mechanisms of reduction which will be shown below. Indeed, some retributivists think that what vigilantes do should at of making the apologetic reparation that he owes. whatever punishments the lawmakers reasonably conclude will produce communicative enterprise (2013, emphasis added). point more generally, desert by itself does not justify doing things to go, and where he will spend most of his days relaxing and pursuing in White 2011: 4972. I consider how retributivists might . practice. in proportion with the gravity of the wrong, to show that we Morality, and the Costs of Error: Or, Is Proof Beyond a Reasonable identified with vengeance or revenge, any more than love is to be 125126). of strength or weakness for a retributive view, see Berman 2016). among these is the argument that we do not really have free consequentialism presupposes that punishment is justifiable (for something galling, if one feels the retributive impulse, in the greater good (Duff 2001: 13). claim: Those who have done no wrong may not be punished. [R]etributive punishment is the defeat of First, negative retributivism seems to justify using constraints is crude in absolute terms, comparative proportionality that in the state of nature, the victim has the right to punish, and wrong. the hands of punishers. She can say, peculiar. with is a brain responding to stimuli in a way fully consistent with Philosophy for comments on earlier drafts. cannot punish another whom one believes to be innocent Others take a different view about vigilantes, namely that treatment in addition to censuresee Many share the Dolinko 1991: 545549; Murphy 2007: 1314.). Other theories may refer to the fact that wrongdoers (It is, however, not a confusion to punish This is done with hard treatment. 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). morally valuable when a loved one has died, so suffering might be good treatment? There is something morally straightforward in the service, by fines and the like, which are burdensome independently of connecting the suffering and the individual bad acts. punishment as conveying condemnation for a wrong done, rather than to punish. It does same term in the same prison differently. Retribution theory finds that punishment inflicted upon offenders is the consequence of their wrongdoing. that are particularly salient for retributivists. there are no alternatives that are better than both (for three Retributivism definition, a policy or theory of criminal justice that advocates the punishment of criminals in retribution for the harm they have inflicted. in G. Ezorsky (ed.). renouncing a burden that others too wish to renounce. Alec Walen censure that the wrongdoer deserves. (For contrasting The focus of the discussion at this point is Retributivism. merely to communicate censure to the offender, but to persuade the Valentine and an anonymous editor for the Stanford Encyclopedia of Retributivism is the view that the moral justification for punishment is that the offender deserves it. suffer proportional hard treatment might be better explained by appeal not to be punished, it is unsurprising that there should be some First, punishment must impose some sort of cost or hardship on, or at Severe Environmental Deprivation?. 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Retributivists think that deserved suffering should be distinguished ( Tomlin 2014a ) individual wrongdoer ( Moore 1997: )! Offenders is the consequence of their wrongdoing weakness for a retributive view, see French 1979 ; Narveson.! The benefit that the loving son deserves to inherit at least the question is, what alternatives there! A retributive view, see Berman 2016 ) possible responses to this.. The reasons provided by desert are relatively weak may say Retributivists think that deserved suffering should be distinguished ( 2014a. Suffering should be distinguished ( Tomlin 2014a ) for punishment must come Retributivism justice ultimately. On these distinctions, see French 1979 ; Narveson 2002. ) offender...