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Professor Hubin Philosophy 338

RETRIBUTIVE THEORIES OF PUNISHMENT

I. Retributive Theories of Punishment: Retributive theories justify punishment by reference to desert. They must not be confused with a vengeance theory, which holds that punishment is justified because it allows society to vent its feelings of anger and disapproval. Retributive theories differ according to their standard of desert and the role they give desert in justifying punishment. A. The standard of desert 1. Harm Standard: People deserve punishment in proportion to the harm that their actions have caused. a. 2. Such an account of `desert' leaves out entirely considerations of blameworthiness; accidental harms would be treated on a par with intentional harms.

Moral Iniquity Standard: People deserve punishment in proportion to their iniquity (wickedness). a. b. The moral iniquity standard runs into serious epistemological (evidential) problems. Such an account ignores considerations of actual harmfulness. (a) While moral iniquity might explain why some people deserve punishment (in some sense of `deserve'), it fails to explain why we have the right to punish. Since we are concerned to develop an account of `desert' that justifies social institutions of punishment, this won't do.

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Balance of Justice Standard: People deserve punishment in proportion to the degree to which they have upset the balance of justice. This is typically understood as the degree to which they have brought about an unfair distribution of benefits and burdens in society. This standard seems to presuppose that adherence to the legal system establishes a fair distribution of benefits and burdens. Thus, the justification of punishment is dependent on the justice of the society in question. Adherents argue that this is as it should be, since we would not be justified in punishing people for violating laws that were unjust. a. Conditioning the justification of the system of legal punishment on the justice of the entire legal system has the following problem: If the system if unjust with regard to certain economic issues (for example), we would lose our justification for punishing someone for violating laws unrelated to this injustice (for violating child molestation laws, for instance). This is because there would not have been a balance of justice for the criminal to upset. (a) The obvious solution is to take the scope of the "balance of justice" to be narrower. If child molestation laws themselves define a fair distribution of burdens and benefits, then the child molester has upset this balance and deserves punishment.

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The role of desert 1. Negative Retributivism: Desert is a necessary condition for the justification of punishment but showing that people deserve punishment provides no positive reason for punishing them. (In effect, showing that people deserve to be punished shows that they do not have a right not to be punished. It does not give us a reason to punish them. For this, we must appeal to other, perhaps utilitarian, considerations.) Positive Retributivism: Desert is both a necessary condition for the justification of punishment and a positive reason for punishing. (An exceptionally strong version of positive retributivism would hold that desert is both a necessary and a sufficient condition for punishment. With the possible exception of Kant, no sane person holds such a view.)

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II. Retributive Answers to the Justification of Punishment A. The General Justification: Negative retributivists hold that the general justification of punishment is to produce good effects (reduction in crime, etc.) but this justification is only appropriate when the person punished deserves to be punished. Positive retributivists hold that at least part of the general justification for punishing is that the guilty deserve to be punished. B. Distribution: 1. Title: All retributivists believe that desert is necessary for punishment to be justified (with the possible exception of extreme cases). One should punish only those who are guilty (except in such extreme cases). Both negative and positive retributivists may freely admit that sometimes the guilty should not be punished. (Other aspects of their theories being the same, negative retributivists will admit this in more cases than will positive retributivists.) Severity: Desert will set upper limits to the amount of punishment that is deserved. Within these limits, negative retributivists will set the punishment at the level that will achieve the best social results. If there is no social benefit to punishing as severely as the upper limit allows, then there is no reason to do so. Positive retributivists may also set punishment lower than the upper bound set by desert, but they would need a positive argument for doing so--the positive reason we have to give people what they deserve would have to be overridden by countervailing considerations. a. It is sometimes thought that the retributive theory gives us a simple standard for determining the upper limit of punishment deserved: the punishment should "fit" the crime. But the notion of "fit" here is extremely vague. Lex talionis ("an eye for an eye, a tooth for a tooth"), which prescribes that the same thing be done to criminals as they have done to their victims, is not subscribed to in its literal form by our society, and for good reason. It is incoherent, frequently inapplicable and sometimes repugnant. What punishment should be given to child molesters and rapists? To embezzlers and forgers? To speeders and drunk drivers? To T.V. ministers who frequent prostitutes or violate their trust by defrauding their flock out of millions of dollars? About the best the notion of "fittingness" can do is to suggest a rough correlation between the severity of the crime and the severity of the penalty.

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