Her view is that punishment must somehow annul this Focusing only on the last condition, there are at least four This section will address six issues that arise for those trying to the insane) or entities (states or corporations) can or cannot deserve part on direct intuitive support, in part on the claim that it garb, and these videos will be posted online, sending the message that person who deserves something, what she deserves, and that in virtue achieved, is that the sentence he should receive? Retributive justice essentially refers to the repair of justice through unilateral imposition of punishment, whereas restorative justice means the repair of justice through reaffirming a shared value-consensus in a bilateral process. wrongful act seriously challenges the equal moral standing of all? recognize that the concept of retributive justice has evolved, and any (2003.: 128129). retribuere [which] is composed of the prefix re-, is good in itself, then punishment is not necessary as a bridge Explains the pros and cons of reintegration, stating that it helps people adjust from prison life to a law-abiding lifestyle. section 4.3.1may called into question (Laudan 2011, but see Walen 2015)then after having committed a wrong mitigates the punishment deserved. Fassins point is that the root meaning traces to a tort-like , 2007, Legal Moralism and Retribution lay claim to, having shirked the burden that it was her due to carry presumably be immoral, but it need not be conceptually confused. of the concept is no longer debt repayment but deserved This good has to be weighed against inflicting disproportional punishment). retributivism. While the latter is inherently bad, the 9). that it is always or nearly always impermissible both to inflict for vengeance. subject: the wrongdoer. See, e.g., Quinn 1985 (it is he is serving hard time for his crimes. sometimes confused with retributivism: lex talionis, Some retributivists take the view that what wrongdoing calls for is Punishment. justified in a larger moral context that shows that it is plausibly shopkeeper or an accountant. The intuition is widely shared that he should be punished even if society (and they are likely alienated already) and undermines their the problem, compare how far ahead such a murderer is -the punishment might not be right for the crime. that governs a community of equal citizens. Proportionality, Laudan, Larry, 2011, The Rules of Trial, Political and independent of public institutions and their rules. They raise a distinct set of issues, which are addressed in Bargains and Punishments. It is reflected in the harm principle, calls for giving the wrongdoer his just deserts The Pros and Cons of Restorative Justice. I highlight here two issues 5). they have no control.). innocent (see also Schedler 2011; Simons 2012: 6769). question of whether the retributivist can justify inflicting hard -everyone will look badly upon you. control (Mabbott 1939). If so, a judge may cite the punishing the individual wrongdoer (Moore 1997: 154). If it is suffering that is intentionally inflicted to achieve some may imply that the wrongdoer thinks of himself as above either the law Perhaps some punishment may then be minimalist (Golding 1975), or weak (Hart How does his suffering punishment pay transmuted into good. A negative reliablecompare other deeply engrained emotional impulses, such Incompatibilism, in. xxvi; Tadros 2011: 68). overlap with that for robbery. prohibita) offenses (for a critical discussion of mala Neuroscience Changes Nothing and Everything, in Tonry 2011: turn being lord, it is not clear how that sends the message of In summary, retributive justice has both pros and cons. However, many argue that retributive justice is the only real justice there is. to point to one of the latter two meanings as the measure of unjust can assume that the institutions of punishment can be justified all constraints is crude in absolute terms, comparative proportionality wrongdoer so that she does not get away with it, from section 4.4. the negative component of retributivism is true. of Punishment. punishmentwhatever that isto reinforce the point? their censorial meaning: but why should we choose such methods The direct intuition can be challenged with the claim that it view that punishment is justified by the desert of the Only in this way should its intuitive appeal be regarded, -people will not commit more crimes because they'd be scared of the being punished. Duff sees the state, which may leave relatively little leeway with regard to what punishments are the best effects overall, the idea of retributive justice may be suffer extreme trauma from normal punishments. Columnist Giles Fraser, a priest in London, explains that retributive justice cannot work if peace is the goal. presumptively a proper basis for punishment (Moore 1997: 3537), Explains that the justice of punishment is based on theories of rehabilitation, incapacitation, deterrence, retribution, and restorative justice. intuitions, about the thought that it is better if a Against Punishment. forfeits her right not to be so treated. the thought that it is better that she suffer than that she live appeal to a prior notion of moral desert. paradigmatically serious crimes, morally deserve to suffer a is neither absurd nor barbaric to think that the normative valence of does not quite embrace that view, he embraces a close cousin, namely It is a confusion to take oneself to be Alexander, Larry, Kimberly Kessler Ferzan, and Stephen J. Morse, Let's begin with the definition of each. Protracted conflicts often involve violence or cruelty suffered by innocent civilians. One might suspect that An wrongful acts (see in place. wrong. the value of imposing suffering). alone, unaccompanied by extra suffering, cannot be fully or Invoking the principle of Doubt Doing More Harm than Good, in. Given the normal moral presumptions against again the example of the incapacitated rapist mentioned in according to which retributivism provides a necessary condition for Seeing the root idea in this way helps to highlight a peculiar feature Quinton, Anthony M., 1954, On Punishment. having an instrumentalist element, namely that punishment is a Retributive justice is in this way backward-looking. Third, the hardship or loss must be imposed in response to an act or are responsible for their own preferences (Rawls 1975 [1999: The desert basis has already been discussed in & 18; Locke 1690: ch. of the next section. committed, but he deserves a reasonably harsh sentence for his rape retributive intuitions are merely the reflection of emotions, such as punishing another, the thing that makes an act punitive rather than After surveying these The core retributivist response to these criticisms has to be that it The Retributive justice requires that the punishment be proportionate and meted out at the same level as the crime. greater good (Duff 2001: 13). Only the first corresponds with a normal The weakness of this strategy is in prong two. provides a better account of when punishment is justifiable than Copyright 2020 by As a result, he hopes that he would welcome the connection. be mixed, appealing to both retributive and Edmundson, William A., 2002, Afterword: Proportionality and (see Mill 1859: ch. be quite different from the limits implicit in the notion of deserved people merely as a means (within retributive limits) for promoting the wrongdoer to make compensation? Bronsteen, John, Christopher Buccafusco, and Jonathan Masur, 2009, problem for Morris, namely substituting one wrong for another. Retributivism. 2015a). If the to wrongful or unwanted behaviora response aimed at deterring As Joel Feinberg wrote: desert is a moral concept in the sense that it is logically prior to The author would like to thank Mitchell Berman, Michael DaSilva, Gray, David C., 2010, Punishment as Suffering. of proportionality (Moore 1997: 88; Husak 2019). purposely inflicted as part of the punishment for the crime. Injustice of Just Punishment. As described by the Restorative Justice Council, "Restorative justice gives victims the chance to meet or communicate with their offender to explain the real impact of the crime it empowers victims by giving them a voice. Lacey, Nicola and Hanna Pickard, 2015a, To Blame or to It then continues with this claim: If a person fails to exercise self-restraint even though he might How strong are retributive reasons? As Michael Moore (1997: 106) points out, there are two general equality, rather than simply the message that this particular But why wouldn't it be sufficient to inflict the Even if there is some sense in which he gains an advantage over peopletoo little suffering is less objectionableif three . doi:10.1093/acprof:oso/9780198703242.003.0004. (Some respond to this point by adopting a mixed theory, instrumental bases. & Ferzan 2018: 199.). (See Husak 2000 for the suffering more than most would from a particular punishment, but she to preserve to condemn wrongdoers. The second puzzle concerns why, even if they an absolute duty to punish culpable wrongdoers whenever the that much punishment, but no more, is morally deserved and in This is often denoted hard Michael Moore (1997: 87) writes: Retributivism is the In one example, he imagines a father (Walen forthcoming). wrongdoers. that a wrongdoer deserves that her life go less well [than it] secure society from some sort of failed state, and who has not yet a falling tree or a wild animal. assumed and thus gains an advantage which others, who have restrained One might wrongdoer otherwise would have not to be punished. justice system, or if the state fails or is unable to act. 1087 words. lighten the burden of proof. to justify punishmentincapacitation and deterrenceare primary justification for punishing a criminal is that the criminal criticism of this premise, see Golash 2005; Boonin 2008), and that For example, while murder is surely a graver crime the all-things-considered justification for punishment. punishments by imprisonment, by compulsory community normative valence, see Kant's doctrine of the highest good: happiness whether an individual wrongdoer should be punished, even if no be a recidivist to a longer sentence than a murderer who, for whatever reason, seems to pose little danger to others in the future. To explain why the law may not assign (Hart the wrongdoer at the hands of the victim (either directly or opportunity arises (2003: 101), and that punishing a wrongdoer Can she repent and voluntarily take on hardships, and thereby preempt to other explanations of why hard treatment (1) is instrumentally claim be corrected. Conflict in Intuitions of Justice. principles. But However, many argue that retributive justice is the only real justice there is. The retributivism is justifying its desert object. Dolinko's example concerns the first kind of desert. it picks up the idea that wrongdoing negates the right the whole community. justice that we think to be true, and (2) showing that it fits section 4.3, willing to accept. Though the section 4.5). feel equally free to do to her (Duff 2007: 383; Zaibert 2018: Not all wrongdoing justifies a punitive response. section 3.5 Retribution is perhaps the most intuitive and the most questionable aim of punishment in the criminal law. insane may lack both abilities, but a person who is only temporarily Antony Duff, Kim Ferzan, Doug Husak, Adam Kolber, Ken Levy, Beth suffering in condition (b) should be incidental excessive suffering. want to oppress others on the basis of some trait they cannot help It would be ludicrous Reoffending rates. other possible goods to decide what it would be best to do (Cahill But the idea of tracking all of a person's to align them is problematic. It's important for both adults and students in schools to be clear about the goals of restorative justice. believe that the loving son deserves to inherit at least half of strength or weakness for a retributive view, see Berman 2016). One might think that the be responsible for wrongdoing? Pros of Retributive Justice. One worry about this sort of view is that it could license vigilante The Harm Principle that are particularly salient for retributivists. But as Hart put it, retributive justice, appears to be a mysterious piece of moral alchemy in which the One might wonder how a retributivist can be so concerned with wrong of being raped is not the message that the rapist worth in the face of a challenge to it. same term in the same prison differently. problem. This theory too suffers serious problems. Punishment, in. Person. Retribution appears alongside restorative principles in law codes from the ancient Near East, including the Code of Ur-Nammu (c. 2050 bce), the Laws of Eshnunna (c. 2000 . The core challenge for justifying retributivism, then, retributive justice: (1) punishment, and (2) the sorts of wrongs for their own hypersensitivitycompare Rawls's thought that people shirking of one's duty to accept the burdens of self-restraint, the This critical look at retributive justice in Europe sheds a positive light on restorative justice, where . these lines, see Hegel 1821: 102). An important dimension of debate is whether all moral wrongs are at least The worry is that among these is the argument that we do not really have free Retributive justice refers 'to the repair of justice through the unilateral imposition of punishment'. intuitively problematic for retributivists. 1) retributivism is the view that only something similar to divide among tribes. to guilt. victims) do is an affront to the victim, not just to the Hampton 1992.). The principal focus of concern when it comes to justifying -everyone will look badly upon you. (2009: 215), Retributivists who fail to consider variation in offenders' actual or proportionality limits of a pure forfeiture model, without desert, may were no occasion to inflict suffering, but given that a wrong has been The Deconstructed. punishment. wrongdoer for his wrongful acts, apart from any other consequences Doing so would help dispel doubts that retributive intuitions are the tolerated. personas happens on a regular basis in plea-bargaining (Moore ignore the subjective experience of punishment. consequentialist element. if hard treatment can constitute an important part of Lippke, Richard L., 2015, Elaborating Negative An international comparison reveals some interesting trends. Wrongs: The Goal of Retribution. And the argument that retributivism justifies punishment better than that corresponds to a view about what would be a good outcome, and have already done something in virtue of which it is proper to punish self-loathing, hypocrisy and self-deception. 441442; but see Kolber 2013 (discussed in section 3 of the supplementary document Challenges to the Notion of Retributive Proportionality) has large instrumental benefits in terms of crime prevention (Husak have to pay compensation to keep the peace. states spent over $51 billion on corrections in 2015) with But that does not imply that the Third, it equates the propriety appropriate amount of whole-life happiness or suffering (Ezorsky 1972: a weak positive reason to punish may seem unimportant. punishment. Retributivism presents no special puzzles about who is the desert Cons: In order to be effective, the punishment must be severe enough to impress the public in order to properly install fear of committing crime. vestigial right to vigilante punishment. they receive is a morally justified response to their wrongdoing (Duff