Setting the Stage...
The issue of retributivism and punishment has been a common theme on both the Garden and Forking Paths and Flickers of Freedom. My present purpose is to try to briefly get clear on the salient terms and themes of the debate. Because this is the first of what will be a series of posts by me in the coming months on retributivism, I want to define some of the key terms up front to prevent confusion downstream.
So, for starters, I follow Moore (1997) in defining retributivism in the following way:
“Reributivism…is the view that punishment is justified by the desert of the offender. The good that is achieved by punishing, on this view, has nothing to do with future states of affairs such as the prevention of crime or the maintenance of social cohesion. Rather, the good of punishment achieves is that someone who deserves it, gets it. Punishment for the guilty is thus for the retributivist an intrinsic good, not the merely instrumental good that it may be to the utilitarian or rehabilitative theorist” (p. 87-88).
On this “pure” view, we not only have a right to punish those who cause culpable harm, we actually have a duty to punish them even if punishing them will produce negative consequences. In short, we have a duty to punish offenders because giving them what they deserve—i.e., making them suffer—is intrinsically valuable. When I, for one, talk about retributivism, this is the view I have in mind.
And here are the views I do not have in min
- Weak (or negative) retributivism—i.e., the view that desert is a necessary but not a sufficient condition for punishing offenders.
- Mixed theories of punishment—i.e., views that provide a consequentialist justification for the institution of punishment but a retributivist justification for the implementation in particular cases.
- Lex talionis—i.e., a view that attempts to provide a scale for determining how much someone deserves but which is not a theory about why and whether punishment is justified in general.
- The catharsis view—i.e., the view that punishment is justified because it satisfies either the victims’ or society’s thirst for vengeance.
- The denunciatory/expressive view—i.e., the view that justified punishment is a vehicle whereby society can express its moral condemnation.
- The scales of justice view—i.e., the view that offenders deserve to suffer because they attempted to derive benefits from society without at the same time paying the costs associated with being part of society.
I, for one, agree with Moore (1997) that each of these views is either not properly retributivistic or does not capture the distinctive feature of retributivism—which is the sufficiency thesis associated with the aforementioned pure view. Of course, if readers of Flickers of Freedom want to discuss these alternative views, I am happy to do so. But when I am criticizing retributivism, I will ordinarily be focused on the pure view.
The second term I would like to define is “retribution”—i.e., making an offender suffer in a manner that is proportionate to the harm he caused because doing so is intrinsically valuable. So, while retributivism is a theory, seeking retribution is an action whereby one seeks to punish an offender solely because he deserves to suffer for his wrongdoing. In short, retribution is what the retributivist thinks we have a duty to inflict upon those who culpably violate legal or moral norms.
The third term I would like to define is “legal punishment.” Following Hart (1968), I am going to define legal punishment such that in order for an act to count as punishment, it must meet the following five conditions:
- It must involve pain or other consequences normally considered unpleasant.
- It must be for an offense against a legal rule.
- It must be of an actual or supposed offender for his offense.
- It must be intentionally administered by people other than the offender.
- It must be imposed and administered by an authority constituted by a legal system against which the offense is committed.
With slight modifications, Hart’s definition of legal punishment could be used to cover punishment more generally—for instance, when a parent punishes a child. But that need not concern us here. For present purposes, the important point is that a retributivist is someone who justifies punishment—whether it be legal or otherwise—by appealing to its intrinsic value rather than its instrumental value.
Finally, I would like to clarify which reactive attitudes I am interested in when talking about punishment, desert, and retribution. In this context, I think the desire to “get even”—i.e., the desire to reciprocally harm those who harm others—is a paradigmatic so-called “punitive emotion.” In short, a punitive emotion is a reactive attitude which leads one to want to punish someone who has violated a legal or moral norm. Notice one could have a punitive emotion without at the same time seeking retribution. All that a punitive emotion involves is a desire to punish offenders. It does not necessarily require the desire to punish offenders for intrinsic rather than merely instrumentalist reasons. To make this distinction clear, perhaps we should distinguish instrumentally motivated punitive emotions from intrinsically motivated emotions. For present purposes, I will simply call the former “punitive emotions” and the latter “retributivist emotions.”
In summary, retributivism is a theory of punishment. Retribution is the purportedly intrinsically valuable act of giving offenders what they deserve. Punishment is a sanctioning practice whereby individuals are intentionally harmed for violating legal norms. Finally, a punitive emotion is an affective and reactive response to harm doing whereby the individual experiencing the emotion wants to harm the offender(s) whereas a retributive emotion is a desire not only to punish, but a desire to seek retribution. With these distinctions in hand, I now want to put some questions for consideration on the table:
- What do you take to be the strongest argument for retributivism? Conversely, what is the strongest argument against retributivism?
- Is compatibilist control robust enough to undergird retributivism/retribution?
- Are our punitive emotions justified? If so, why? If not, why not?
- Are our retributive emotions justified? If so, why? If not, why not?
- Can our punitive emotions—which were presumably selected for because they helped our ancestors solve the cooperation/free rider problem—be used to motivate and bolster a non-instrumentalist theory of punishment such as retributivism?
- Compatibilists and libertarians both believe in free will—albeit of different sorts—but do they have a shared conception of moral desert? If so, what is this common conception? If not, what are the different notions of desert in play in the two respective theories?
- One term I did not define above but which plays an essential role in the debate about retributivism and punishment is moral desert. I, for one, have no idea how to define it in a non-circular manner. So, I am hoping folks will give me their own two cents when it comes to the nature and limitations of desert. Is there a non-circular way of defining desert? If so, is there as unproblematic way of weighing/scaling/measuring desert thusly defined?
OK, that’s more than enough (if not too many!) questions for now. Hopefully, the comment thread for this post will set the stage for future discussions about retribution, punishment, and desert.