What is Retributivism?

The Retributivists
Put in the simplest terms, a retributivist is a person who believes that the primary
justification for punishing a criminal is that the criminal deserves it. The devil (or
maybe the angel) is in the details, of course, and so what is really needed to defend
retributivism is a persuasive answer to three questions: (1) What is desert, (2) Why is
it morally important that punishment be based on desert, and (3) Why should the
state (which does not seek, aft er all, to promote all moral values) be concerned with
moral desert as an aim in its system of criminal punishment? (Murphy, 2011:95).
Retribution, therefore, is the general justifying aim of punishment. The opportunity to
use retributively justified punishments to deter and reform is only a bonus side effect,
and measures intended to deter and/or reform cannot rightly be more deleterious to
the convicted offenders interests than can be justified by retributive considerations
(Finnis, 2011:121).
it is necessary to set aside the assumption made all too casually by Nietzsche, but also
by Bentham, Hart, and countless other theoriststhe assumption that the essence of
punishment is the infliction of pain. The essence of punishments, as Aquinas clearly
and often explains, is that they subject off enders to something contrary to their wills
something contra voluntatem. This, not pain, is of the essence (Finnis, 2011:173).
Nietzsche saw the origins of punishment in the debtor- creditor relationship. Perhaps;
the evidence is scant. But we should be concerned not with origins but with practical,
moral intelligibilities. The debts from which just punishment liberates the offender are
not debts to the victims who might be plaintiffs in a civil proceeding or might
understandably but wrongly desire revenge. Rather, we may say, those debts are the
advantagethe inequalitywhich, in the willing of an off ence, is wrongly gained
relative to all the off enders fellows in the community against whose law, and so
whose common good, the offence offends: the advantage of freedom from external
constraints in choosing and acting (Finnis, 2011:175).
Hegel
G.W.F. Hegels view of punishment has received relatively little attention, particularly
when compared to the space devoted to his predecessor Immanuel Kant. Th is is
perhaps not surprising, given Hegels challenging (even obscure) writing style, which
has, it seems, also opened his view up to a wide range of interpretations: mixed,
reformist, deterrent, and retributivist. By contrast, Kants position is almost
universally regarded to be retributivist, so much so that he is oft en considered to be
the paradigmatic retributivist. This interpretation is based on just a few key passages
in the Metaphysics of Morals, extracted seemingly without diffi culty from his
broader philosophy (Johnson, 2011:147).
According to Hegel, crime is one of three kinds of wrongdoing, the other two being
civil wrong and fraud. Each of these forms of wrongdoing corresponds to a different
judgment type involving a particular relationship to right, and all these relationships
entail a fundamental opposition between right itself and an individual will. According
to The Encyclopedia Logic, civil wrongs, for instance, correspond to simple negative
judgments (Johnson, 2011:148).

As distinct from civil wrong and fraud, crime involves a coercive act by a free and
rational agent and represents a threefold negation: of the rights of the victim, the
right of the criminal himself (making his act self-contradictory), and right as such
(revealing the internally null and void nature of the crime). What Hegel means by
negation is not what contemporary logicians mean when they use this term. The scope
of contemporary logic is generally limited to consideration of propositions: their
internal structure, relationships, and to some extent, how these propositions relate to
the empirical world. Negation, therefore, just concerns propositions or parts of
propositions that are not the case t he denial of something. For Hegel, however,
negation concerns form and content; it is a kind of embedded notion that can reside
in processes, objects, and concepts themselves, rather than simply operating at the
level of statements about processes, objects, and so on (Johnson, 2011:149).
Hegels account of punishment follows directly from his view of crime, with
punishment involving a response to each of the negations invoked by crime o f the
victim, the criminal, and right itself. In the case of the victim, punishment serves to
acknowledge the criminals mistake in eff ectively ignoring her rights. Because the
criminal has also negated his own right through crime, punishment is required to
cancel this move and to bring the criminal back within the fold of civil society. And
just like the victim, the criminal has his legitimacy as a right-bearing individual
reinstated by punishment (Johnson, 2011:153).
For Hegel, a justification can be addressed to the criminal as someone who has
legislated an act by which he has rejected the victims right, as well as the principle of
right more broadly and, in fact, thereby undermined his own standing within society
(Johnson, 2011:160).
Rawls
John Rawls once proffered the view that retributive justice rests on the idea that
wrongdoing merits punishment. It is morally fitting that a person who does wrong
should suff er in proportion to his wrongdoing . . . and the severity of the
appropriate punishment depends on the depravity of his act. Similarly, Michael S.
Moore once summarily described retributivism as the view that punishment is
justified by the moral culpability of those who receive it. Underlying this
description is a sense that imposing punishment for moral wrongdoing is a selfevident obligation (Markel, 2011:50).
Nozick
Nozick identified five other distinctions between retribution and revenge: (a)
retribution ends cycles of violence, but revenge fosters them; (b) retribution limits
punishment so that it is in proportion to the wrongdoing, whereas revenge is not
necessarily limited by this principle; (c) the state administers retribution impartially,
while revenge is oft en personal; (d) retributivists seek equal application of the law,
whereas the avenger is not attached to such a principle; and (e) retribution is cool
and unemotional, while revenge (oft en) has a particular emotional tone of taking
pleasure in the suffering of another (Markel, 2011:58).
Hampton
There is good reason to believe Plato and Hegel accepted some thing like it, I and
more recently, Herbert Morris and Robert Nozick have maintained that the moral

education which punishment effects is at least part of punishment's justification. I

want to go further, however, and suggest that by reflecting on the educative character
of punishment we can provide a full and complete justification for it. Most of my
discussion will focus on the theory's application to the state's punishment of criminal
offenders, but I will also be looking at the theory's implications for punishment within
other societal institutions, most notably the family (Hampton, 1984:209).
But to say that the state's punishment is needed to prevent crime is not to commit
oneself to the deterrence justification of punishment-it all depends on what one takes
prevention to entail. And, as Hegel says, if we aimed to prevent wrongdoing only by
deterring its commission, we would be treating human beings in the same way that we
treat dogs (Hampton, 1984:211).
Punishments are like electrified fences. At the very least they teach a person, via pain,
that there is a "barrier" to the action she wants to do, and so, at the very least, they
aim to deter. But because punishment "fences" are marking moral boundaries, the
pain which these "fences" administer (or threaten to administer) conveys a larger
message to beings who are able to reflect on the reasons for these barriers' existence:
they convey that there is a barrier to these actions because they are morally wrong
(Hampton, 1984:212).
Because part of the goal of punishment is to educate the criminal, this theory insists
that as he is educated, his autonomy must be respected. The moral education theorist
does not want "education" confused with "conditioning." Shock treatments or
lobotomies that would damage or destroy the criminal's freedom to choose are not
appropriate educative techniques (Hampton, 1984:222).
Comparing punishments to electrical fences helps to make clear how a certain kind of
deterrent message is built into the larger moral point which punishment aims to
convey. If one wants someone to understand that an offense is immoral, at the very
least one has to convey to him or her that it is prohibited-that it ought not to occur.
Pain is the way to convey that message. The pain says "Don't!" If those who are
punished (or who watch the punishment take place) reject the moral message implicit
in the punishment, at least they will learn from it that there is a barrier to the actions
they committed (Hampton, 1984: 212-213).
Some readers might wonder how close the moral education view is to the old
retribution theory. Certain retributivists have also been very attracted to the idea that
punishment is a kind of speech act. For example, Robert Nozick in his book
Philosophical Explanations has provided a nice nine-point analysis of punishment
which presents it as a kind of communication and which fits the account of meaning
put forward by H. P. Grice. Consider, for example, what we say when we punish
others: a father who punishes his child explains that he does so in order that the child
"learn his lesson"(Hampton, 1984:215-216).
Moreover, if one understands punishment as a moral message aimed at educating
both the wrongdoer and the rest of society about the im morality of the offense, one
has a powerful explanation (at least as pow erful as the one offered by retributivism)
of why victims so badly want their assailants punished. Punishment affirms as a fact

that the victim has been wronged, and as a fact that he is owed a certain kind of
treatment from other. Hence, on this view, it is natural for the victim to demand
punishment because it is a way for the community to restore his moral status after it
has been damaged by his assailant (Hampton, 1984:217).
Similarly, the retributivist's lex talionis punishment formula (dictating that
punishments are to be somehow equal to the crime) would seem to recommend, for
example, torturing the torturer, murdering all murderers, and such recommendations
cast serious doubt on the formula's moral adequacy. Even the rehabilitation theory
does not place strict limits on the kinds of "treatments" which can legitimately be
given to offenders. If the psychiatric "experts" decide that powerful drugs, shock
treatments, lobotomies or other similar medical procedures are legitimate and
necessary treatments of certain criminals, why shouldn't they be used? (Hampton,
1984:222).
But, the reader might wonder, how can inflicting any pain upon a criminal be morally
education. The moral education theorist must provide an explanation of why certain
sorts of painful experiences (whose infliction on others we would normally condemn)
may legitimately be inflicted in order to facil- itate moral growth
And if Nozick explains the linkage of pain with crime by saying that the pain is
necessary in order to communicate to the criminal that his action was wrong, he has
answered the question but lost his retributive theory. Other philosophers, like Hegel,
speak of punishment as a way of "annulling" or "canceling".
the crime and hence "deserved" for that reason

Nozick & Hegel in Revenge

Punishment is objective, universal, and mediated while revenge is subjective,
particular, and immediate. Because of these factors, revenge attains justice, if at all,
only by chance. According to Hegel, if the content of revenge happens to coincide
with retribution, then it may be fair, but the form of revenge will always be
individualistic and misguided. Rather than cancelling crime in a defi nitive manner,
an act of revenge actually perpetuates a potentially infinite series of wrongs. Punitive,
as opposed to avenging, justice seeks to genuinely overcome the negation of crime
and reconcile right with right (Johnson, 2011:161).
Some Other Problems
In other words, the value of retribution lies in the criminals ability to understand
rationally the politys desire to repudiate his wrongful claim to be above the law.
Imagine a perpetrator who is mentally impaired, such that during his last dinner
before execution, he tells the prison guard, I want to save my dessert for tomorrow
night. Would retributive punishment make sense in this context? Not in my view
(Markel, 2011:52).
Imagine Jack. He has spitefully run over Jane, his neighbors prize-winning child. If
the state seeks to punish Jack on account of his purported moral desert, several
questions arise. First, why does Jack deserve punishment? And is that the same thing

as deserving suffering? Moreover, why shouldnt Jack undergo some form of

treatment that can cure or ameliorate his antisocial condition? (Markel, 211:51).
Rape
Rape is, I assume, a less serious offense than manslaughter, and certainly a less
serious off ense than second degree homicide. But is it really plausible to say that
someone who has committed ten rapes should not be assigned a total sentence that
puts it up in the range that we would reserve for manslaughter or even second degree
homicide? (Lippke, 2011:217)
But rape surely inflicts serious harm on its victims, though they remain alive and will
(hopefully) eventually recover from the physical and emotional trauma, along with
the severe affront to their dignity, that rape inflicts (Lippke, 2011:217).
The Kantian retributivist will surely be guided by Kants own injunction that all
punishments, even those directed at the worst criminals, must be kept free of any
maltreatment that would degrade the humanity of the criminal or of those
administering the punishment. If the worst criminals are not human beings possessed
of basic human rights, then the whole language of desert and just punishment would
not even apply to them as it does not apply to beasts. Thus, in spite of the deviation
from strict proportionality, a decent society will not, according to Kant, torture the
torturer or rape the rapist (Murphy, 2011:102).
Kant acknowledges that variations will be necessary to capture the spirit of this
principle and cautions that every punishment must be freed from any mistreatment
that could make the humanity of the person suff ering it into something abominable.
7 In some cases, for example, rape, the state may not morally do to the criminal
precisely what he or she has done to the victim. He hastens to add, though, that there
can be no just substitute or variation in the case of murder because [t]here is no
similarity between life, however wretched it may be, and death (Murphy, 2011:109).
Rape is a serious crime, but the victims of it do recover aft er some period of time and
presumably go onto have decent lives. Hence, even serial rapists should not, for the
most part, be sentenced to death or life imprisonment or even to prison terms above a
certain range (say, 10 to 15 years), especially if we assume that the sentence for a
single rape should not exceed five years imprisonment. Still, the principle could be
treated as presumptive. Perhaps a rapist with 50 victims would have to be assigned a
sentence that was destructive of his life prospects though no single one of his rapes
was comparably destructive to the life prospects of his victim. But such high-rate
serial off enders would presumably be the exception, not the rule (Lippke, 2011:211).

Capital Punishment
Should retributivists reject capital punishment? It is easy to see how those holding
different theories of punishment might oppose it. For example, a deterrence
proponent could argue that capital punishment lacks a deterrent effect, and thus, it is
unjustified. This seems a far more difficult task for a retributivist (Brooks, 2011:232).
The greater the wrongfulness of a crime, the greater its punishment. This positive
retributivist position could easily justify capital punishment as seen by Kant: the

murderer deserves death on account of the gravity of his crime. However, I will argue
that retributivists should reject capital punishment for murderers (Brooks, 2011:232).
One attempt to demonstrate how retributivists might reject capital punishment is off
ered by Daniel McDermott. He argues that retributivists should hold that any
punishment they would accept is morally legitimate, and that the punishing institution
ought to be morally legitimate as well. Capital punishment might then be a legitimate
sanction for murder, all things considered, but its legitimacy as a penal option also
rests on the legitimacy of the punishing institution (Brooks, 2011:233).
Daniel McDermott
Imagine, for example, that a vicious murderer has been sentenced to death and placed
on death row. He has exhausted all of his appeals, he has gotten his affairs in order,
and now it is just a matter of days before he gets what he deserves: a lethal injection
that will cause his death. Now imagine that the guards at the prison decide that this
business of a formal state execution is just too costly an affair and that they should do
everybody a favor and take care of the job themselves. That night, they slip into the
murderers cell and give him a lethal injection while he sleeps. The murderer never
feels a thing and is dead within minutes.The argument is that even if the murderer
deserved death by lethal injection, it is unjustified for the guards to execute him in
this way (Brooks, 2011:233).
I have argued that a retributivist should reject capital punishment for murderers
because we can almost never be certain that the convicted person really is a
murderer. However, I leave open the possibility that we may be certain in some cases.
For example, the British politician David Davis has argued that the death penalty
would be justified in those cases where someone has been convicted of two or more
murders (Brooks, 2011:241).
Finally, there may be additional reasons, including the desire of the families of the
victims to gain answers from the murderer for why their loved ones were killed, or
that it would be benefi cial to keep such persons alive so that the state could learn
more about why they did what they did in the hopes that it might better address such
behavior in the future (Brooks, 2011:242).

Therapeutic Jurisprudence
What is and is not harming is to be judged by reference to the whole
person whose organically integral bodily well- being is the reason for
choosing to remove the diseased part, not by reference to the part whose
disease threatens that organic integration nor by reference to any part
which is damaged as an unavoidable side effect of the treatment (Finnis,
2011:248).