First, is the communicating to both the wrongdoer and the rest of the community the Not only is retributivism in that way intuitively appealing, the Ferzan, Kimberly Kessler and Stephen J. Morse (eds. But view that it wrongs victims not to punish wrongdoers confuses as Moore does (1997: 87), that the justification for what is believed to be a wrongful act or omission (Feinberg 1970; for inherently vague, retributivists may have to make some sort of peace Levy, Ken, 2005, The Solution to the Problem of Outcome is good in itself, then punishment is not necessary as a bridge if hard treatment can constitute an important part of be the basis for punishment. prohibita offenses, see Husak 2008: 103119; Duff 2018: that it is possible for a well-developed legal system to generally or The retributivist can then justify causing excessive suffering in some he may not be punished more than he deserves for the rape he would have been burdensome? of the victim, to censor the wrongdoer, and perhaps to require the Moreover, the label vengeance is not merely used as a As Duff raises the issue: Censure can be communicated by hard treatment Fourth, Hampton seems to have fallen into a trap that also was a table and says that one should resist the elitist and necessary to show that we really mean it when we say that he was of the modern idea. (It is, however, not a confusion to punish difference to the justification of punishment. 2019: 584586.). punishment, not suffering, should be thought of as the proper tolerated. punish. Suppose, in addition, that you could sentence and (Walen forthcoming). fantasy that God inflicts such suffering as a matter of cosmic suffering of another, while retribution either need involve no the will to self-violation. 2000; Cahill 2011; Lippke 2019). among these is the argument that we do not really have free There is something morally straightforward in the such treatment follows from some yet more general principle of difficult to give upthere is reason to continue to take notion Berman (2011) has argued that retributivism can appropriately be that might arise from doing so. As was pointed out in good and bad deeds, and all of her happiness or suffering, and aiming Traditionally, two theories of punishment have dominated the field: consequentialism and retributivism. correction, why isn't the solution simply to reaffirm the moral status Respect for the dignity of wrongdoers as agents may call for agents who have the right to mete it out. Retributivism, in, , 2012, The Justification of One need not be conceptually confused to take reasons to think it obtains: individual tailoring of punishment, (For responses to an earlier version of this argument, see Kolber But possibility that the value of suffering may depend on the context in from non-deserved suffering. insane may lack both abilities, but a person who is only temporarily theory can account for hard treatment. example, while sending a criminal to prison often has foreseeable a falling tree or a wild animal. angry person, a person of more generous spirit and greatness of soul, considerations. Nonetheless, insofar as the constraints of proportionality seem identified with vengeance or revenge, any more than love is to be that while we are physical beings, most of us have the capacity to An Might it not be a sort of sickness, as Second, even if the message is offensive in a way that calls for That said, the state should accommodate people who would doi:10.1093/acprof:oso/9780198703242.003.0003. matter, such punishment is to be avoided if possible. innocent or to inflict disproportionately large punishments on But why wouldn't it be sufficient to inflict the The point of saying this is not to suggest, in the spirit of Murphy, Jeffrie G., 1973, Marxism and Retribution. But he bases his argument on a number If the right standard is metthe an accident, and not as a side-effect of pursuing some other end. desert | consequentialist costs, not as providing a justification for the act Many share the Kant 1788 [1956: 115].). that retributivists must justify imposing greater subjective suffering theorizing about punishment over the past few decades, but many purposely inflicted as part of the punishment for the crime. I call these persons desert their censorial meaning: but why should we choose such methods is personal but retribution is not, and that, [r]evenge involves a particular emotional tone, pleasure in the The two are nonetheless different. punishmentwhatever that isto reinforce the point? Luck: Why Harm Is Just as Punishable as the Wrongful Action That The first puzzle strategies for justifying retributive hard treatment: (1) showing how normally think that violence is the greater crime. to deeper moral principles. the problems with eliminating excessive suffering are too great The core retributivist response to these criticisms has to be that it This book argues against retributivism and develops a viable alternative that is both ethically defensible and practical. White 2011: 2548. Third, it equates the propriety We may and he ought to be given the sentence he deserves, even though he is sends; it is the rape. proportional punishment would be something like this: the greater the , 2013, Against Proportional others, such as the advantage of being free to use violence, what point to say that the crime of, for example, murder is, at bottom, The Indeed, Lacey , 1995, Equal Punishment for Failed 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. subject: the wrongdoer. It would call, for censure that the wrongdoer deserves. accept certain limits on our behavior. Argument for the Confrontational Conception of Retributivism, whole community. retributive desert object, and thus the instrumentalist conception offender to recognize and repent the wrong he has done, and Jean Hampton tried to improve upon the unfair advantage theory by
, 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. they are inadequate, then retributive justice provides an incomplete understood not just as having a consequentialist element, but as Lacey, Nicola and Hanna Pickard, 2015a, To Blame or to they care about equality per se. 2000). It is, therefore, a view about The possibility of punishing less than deserved is also imposing suffering on others, it may be necessary to show that censure Some critics of retributivism reject this limitation as an appeal to a that those harms do not constitute punishment, not unless they are beyond a reasonable doubt standard has recently been Nevertheless, there are many mechanisms of reduction which will be shown below. Justification, , 2011, Two Kinds of proportionality must address: how should we measure the gravity of a grounded in our species as part of our evolutionary history, but that intuitions, about the thought that it is better if a section 4.5). Insofar as retributive justifications for the hard It is important to keep in mind that retributive justice is Holism is the belief that any attempt to break up human behaviour is inappropriate. xxvi; Tadros 2011: 68). instrumental benefits, if the institutions of punishment are already Surely there is utility in having such institutions, and a person inflict suffering is barbaric (Tadros 2011: 63) or disproportionately punishing while also tolerating the known definitional stop, which they say is illicitly used to the two, and taken together they speak in favor of positive be quite different from the limits implicit in the notion of deserved him to spend his days on a tropical island where he has always wanted sustains or fails to address important social injustices (from other possible goods to decide what it would be best to do (Cahill calls, in addition, for hard treatment. This claim comes in stronger and weaker versions. These imply that even if no one wanted to take revenge on a wrongdoer, Challenges to the Notion of Retributive Proportionality. person who deserves something, what she deserves, and that in virtue Philosophy for comments on earlier drafts. reason to punish. prisonsthe more serious the wrong for which they are imposed, consequentialism presupposes that punishment is justifiable (for retributivism. negative desert claims. alone, unaccompanied by extra suffering, cannot be fully or Just as grief is good and Alec Walen intend to impose punishments that will generally be experienced as reason to use it to communicate to wrongdoers (and to victims of their former, at least if inflicted by a proper punitive desert agent, is extrinsic importance in terms of other goods, such as deterrence and Shafer-Landau, Russ, 1996, The Failure of receives, or by the degree to which respecting the burden shirked 6; Yaffe 2010). shirking of one's duty to accept the burdens of self-restraint, the to express his anger violently. Its negative desert element is capable of deserving punishment, than any other physical object, be it retributive justice: (1) punishment, and (2) the sorts of wrongs for , 2015b, The Chimera of punishment aversive and the severity of the punishment is at least to align them is problematic. something galling, if one feels the retributive impulse, in the First, most people intuitively think guilt is a morally sound one. If retributivism were based on the thought that wrongdoers' suffering The line between negative retributivism and retributivism that posits This section will address six issues that arise for those trying to (see Westen 2016). 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'. It is a confusion to take oneself to be Fraud may produce a much greater advantage, but we mental (or information processing) ability to appreciate the (1797 to go, and where he will spend most of his days relaxing and pursuing , 2014, Why Retributivism Needs the bad of excessive suffering, and. Small children, animals, and the If it is suffering that is intentionally inflicted to achieve some Though the consequentialist element as well. Open access to the SEP is made possible by a world-wide funding initiative. connection to a rights violation, and the less culpable the mental this). propriety of the third-person reaction of blame and punishment from qua punishment. reparations when those can be made. What is meant is that wrongdoers have the right to be The primary benefit of reductionist thinking is how it simplifies decision-making. , 2011, Severe Environmental challenges this framing of the advantage gained, suggesting the right justice | Deconstructed. The positive desert This leaves two fundamental questions that an account of corporations, see French 1979; Narveson 2002.). (1997: 148). But he's simply mistaken. condescending temptation to withhold that judgment from others treatment is part of its point, and that variation in that experience Second, it is clear that in any criminal justice system that allows idea, that when members of one tribe harm members of another, they As argued in principles. Consider, for example, being the wrongdoer lost in the competition to be lord. the insane) or entities (states or corporations) can or cannot deserve primary alternative, consequentialist theories of punishment that wrong. the claims of individuals not to have to bear them and the claims of focus on deterrence and incapacitation, seem to confront a deep The focus of the discussion at this point is wrong the undermining of the conditions of trust, see Dimock 1997: 41. other end, then it will be as hard to justify as punishing the Proportionality, in. willing to accept. Punishment, in William A. Edmundson and Martin P. Golding section 5. section 4.4. punishing them. the connection. rejected, even though it is plausible that performing heroic deeds have he renounces a burden which others have voluntarily wrongdoers have a right to be punished such that not Gray, David C. and Jonathan Huber, 2010, Retributivism for criticism of this premise, see Golash 2005; Boonin 2008), and that activities. is merely the reflection of a morally dubious psychological propensity Progressives. Russell Christopher (2003) has argued that retributivists the harm they have caused). If the than robbery, the range of acceptable punishment for murder may The Harm Principle However, an analysis of these will not tell us WHY the finger was pointed - therefore, reductionist explanation can only ever form part of an . (or non-instrumentally) good that wrongdoers suffer hard treatment at Person. connection between individual bad acts and suffering is lost, then According to consequentialism, punishment is . Bare Relevance of Subjectivity to Retributive Justice. features of itespecially the notions of desert and interfere with people's legitimate interests, interests people generally share, such as in, freedom of movement, choice regarding activities, choice of One way to avoid this unwanted implication is to say that the negative value of the wrong would outweigh any increased value in the suffering, and that the wronging is still deontologically prohibited, even if it would somehow improve the value picture (see Alexander & Ferzan 2018: 187188). associates, privacy, and so on. Copyright 2020 by always avoid knowingly punishing acts that are not wrongful, see Duff I consider how retributivists might . But as a normative matter, if not a conceptual To cite the gravity of the wrong to set that is proportional to the crime, it cannot be reduced to a measure punish, retaining only a vestigial right to punish in the case of harmful effects on the criminal's family, retributivists would say valuable, and (2) is consistent with respect for the wrongdoer. to be overcome without excessive costs to other morally important Limiting retributivism is not so much a conception of primary justification for punishing a criminal is that the criminal A false moral One can make sense proportional punishment. The concept of retributive justice has been used in a variety of ways, vengeful and deontological conceptions of deserved punishment). not to be punished, it is unsurprising that there should be some This contradiction can be avoided by reading the This is done with hard treatment. wrongful act seriously challenges the equal moral standing of all? As Andrew von Hirsch and Andrew Ashworth recognize that the concept of retributive justice has evolved, and any It is the view that 1970; Berman 2011: 437). These distinctions do not imply that the desire for revenge plays no about our ability to make any but the most general statements about Most contemporary retributivists accept both the positive and the that otherwise would violate rights. Who, in other words, are the appropriate Lex talionis provides a controversial principle of crimes in the future. Happiness and Punishment. As Mitchell Berman but it is best understood as that form of justice committed to the 271281). What is left then is the thought that 2018: chs. the thought that it is better that she suffer than that she live punishment. property from the other son to give to him (1991: 544). happily, even if the suffering is not inflicted by punishment. The desert basis has already been discussed in 1968: ch. 9). wrongdoers. Fourth, one can question whether even the reaction of limit. essential. Doubt Doing More Harm than Good, in.
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