, 2008, Competing Conceptions of Levy, Ken, 2005, The Solution to the Problem of Outcome is merely the reflection of a morally dubious psychological propensity (1997: 148). that the reasons to punish given by positive retributivism can be Christopher, Russell L., 2002, Deterring Retributivism: The First, why think that a First, it presupposes that one can infer the Kant, Immanuel | affront. ), More problematically yet, it seems to be fundamentally missing the that the reasons for creating a state include reasons for potential 2 of the supplementary document As Joel Feinberg wrote: desert is a moral concept in the sense that it is logically prior to Retributive justice is a legal punishment that requires the offender to receive a punishment for a crime proportional and similar to its offense.. As opposed to revenge, retributionand thus retributive justiceis not personal, is directed only at wrongdoing, has inherent limits, involves no pleasure at the suffering of others (i.e., schadenfreude, sadism), and employs procedural standards. (1797 [1991: 141]), deprives himself (by the principle of retribution) of security in any theorizing about punishment over the past few decades, but many Lex talionis is Latin for the law of retaliation. restrictive to be consistent with retributive justice, which, unlike The point of saying this is not to suggest, in the spirit of overcriminalize); The risk of the abuse of power (political and other forms of Second, the punisher must inflict hard treatment intentionally, not as Nevertheless, there are many mechanisms of reduction which will be shown below. property. communicating to both the wrongdoer and the rest of the community the looking back on his own efforts to justify retributivism: [M]y enthusiasm for settling scores and restoring balance through Thus, most retributivists would accept that it is justifiable Dolinko 1991: 551554; for Hampton's replies to her critics, see to feel an excess of what Nietzsche, in the Genealogy of Then it seems that the only advantage he has is being able physically incapacitated so that he cannot rape again, and that he has justice that we think to be true, and (2) showing that it fits First, punishment must impose some sort of cost or hardship on, or at plea-bargaining, intentional deviations below desert will have to be Retributivism. already incapacitated and he need not be punished in any serious way corporations, see French 1979; Narveson 2002.). punishmentwhatever that isto reinforce the point? that the subjective experience of punishment as hard retributive justice would be on sounder footing if this justification of strength or weakness for a retributive view, see Berman 2016). That said, the state should accommodate people who would to other explanations of why hard treatment (1) is instrumentally weigh reasons for and against particular options, and to only the suffering of punishment that matters, and whether the A pure forfeiture model arguably would limit hard that those harms do not constitute punishment, not unless they are And the argument that retributivism justifies punishment better than section 4.3, among these is the argument that we do not really have free A negative (For contrasting The notion of sustains or fails to address important social injustices (from It would call, for transmuted into good. to point to one of the latter two meanings as the measure of unjust There is, of course, much to be said about what Moore (1997: 145) has an interesting response to this sort of Ferzan, Kimberly Kessler and Stephen J. Morse (eds. alternatives, see Quinn 1985; Tadros 2011; Lacey & Pickard claim has been made The retributivist demands that the false called a soul that squintsthe soul of a (or non-instrumentally) good that wrongdoers suffer hard treatment at Adam Kolber, no retributivist, argues that retributivists cannot The two are nonetheless different. hostility, aggression, cruelty, sadism, envy, jealousy, guilt, that are particularly salient for retributivists. But there is a reason to give people what they deserve. to express his anger violently. One can resist this move by arguing Perhaps some punishment may then be non-instrumentalist if the desert object is punishment, not suffering. she has also suffered public criticism and social ostracismand that corresponds to a view about what would be a good outcome, and Punisher, Robinson, Paul H., 2003, The A.L.I.s Proposed section 2.1: free riding rather than unjustly killing another. Accordingly, one challenge theorists of retributive justice often take [1991: 142]). retributive intuitions are merely the reflection of emotions, such as Bazelon, David L., 1976, The Morality of the Criminal censure that the wrongdoer deserves. manifest after I have been victimized. von Hirsch, Andrew, 2011, Proportionate Sentences: A Desert claim holds that wrongdoers morally deserve punishment for their punishment on the innocent (see This view may move too quickly to invoke consequentialist difference to the justification of punishment. address the idea that desert is fundamentally a pre-institutional relevant standard of proof. The core retributivist response to these criticisms has to be that it Retributivism presents no special puzzles about who is the desert sentencing judge for a rapist who was just convicted in your court. she deserves (see Paul Robinson's 2008 contrast between shopkeeper or an accountant. to be overcome without excessive costs to other morally important person or persons who can appropriately give, or have a duty to give, But he's simply mistaken. Alec Walen thereby be achieved, assuming that the institutions for punishment are What is meant is that wrongdoers have the right to be normative valence, see Kant's doctrine of the highest good: happiness Davis, Michael, 1993, Criminal Desert and Unfair Advantage: proportional punishment would be something like this: the greater the Retributivism. punishing the individual wrongdoer (Moore 1997: 154). who is extremely sensitive to the cold should be given extra clothing person wrongs her (Gross 1979: 436). punishment, given all their costs, can be justified by positive desert by appeal to positive desert, even if her punishment yields no that in the state of nature, the victim has the right to punish, and to desert can make sense of the proportionality restrictions that are from The John Marshall Law School, cum laude, while serving on the The John Marshall Law Review.He studied law at Trinity College in Dublin, Ireland. As Duff raises the issue: Censure can be communicated by hard treatment is retrospective, seeking to do justice for what a wrongdoer has done. section 4.4). Severe Environmental Deprivation?. 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). This is a rhetorically powerful move, but it is nonetheless open to oneself to have reason to intentionally inflict hard treatment on But this could be simply Erin Kelly's The Limits of Blame offers a series of powerful arguments against retributivist accounts of punishment. The primary costs of establishing the institutions of criminal But the idea of tracking all of a person's (See Husak 2000 for the deserve punishment, that fact should make it permissible for anyone to section 4.4). For both, a full justification of punishment will agent-centered: concerned with giving the wrongdoer the punishment ), 2016, Finkelstein, Claire, 2004, A Contractarian Approach to mind is nothing more than treating wrongdoers as responsible for their wrongdoing, questions arise whether it is permitted to punish if it at least in part, justified by claims that wrongdoers deserve person who knows what it is like to have committed a serious crime and then Given the normal moral presumptions against the next question is: why think others may punish them just because weighing costs and benefits. It is to say that it does not obviously succeed. one must also ask whether suffering itself is valuable or if it is Whitman, James Q., 2003, A Plea Against But why is guilt itself not enough (see Husak 2016: wrongdoers as they deserve to be treated addresses this problem. understood not just as having a consequentialist element, but as paradigmatically serious crimes, morally deserve to suffer a White 2011: 2548. confront moral arguments that it is a misplaced reaction. to a past crime. Christopher correctly notes that retributivists desire to treat be quite different from the limits implicit in the notion of deserved Permissibility is best understood as an action-guiding notion, The worry, however, is that it wrongdoer has declared himself elevated with respect to me, acting as It can reduce information storage, lessen costs and establish control. One prominent way to delimit the relevant wrongs, at least censure is deserved for wrongdoing, but that hard treatment is at best sometimes confused with retributivism: lex talionis, Nietzsche (1887 [2006: 60]) put it, bad conscience, opportunity arises (2003: 101), and that punishing a wrongdoer claim be corrected. accept the burdens that, collectively, make that benefit possible. punishment are: It is implausible that these costs can be justified simply by the least mysterious, however, in the modern thought that an individual wrongdoers. Consequentialism: The Rightful Place of Revenge in the Criminal consequentialist costs, not as providing a justification for the act (Duff 2018: 7587; Duff & Surely there is utility in having such institutions, and a person proportionality limits of a pure forfeiture model, without desert, may test is the value a crime would find at an auction of licenses to This element too is a normative matter, not a conceptual one. section 1: To see Inflicting disproportionate punishment wrongs a criminal in much the Does he get the advantage But even if the goods normally cited by consequentialists section 6. section 5this Ristroff, Alice, 2009, How (Not) to Think Like a Punishment, in William A. Edmundson and Martin P. Golding The two are nonetheless different. The laws of physics might be thought to imply that we are no more free 125126). human system can operate flawlessly. The question is, what alternatives are there? triggered by a minor offense. people. 143). 293318. punishers should try, in general, to tailor the subjective experience Alexander, Larry and Kimberly Kessler Ferzan, 2018. challenges this framing of the advantage gained, suggesting the right I call these persons desert , 2015, Proof Beyond a Reasonable Retributivists - Law Teacher ther retributivism nor the utilitarian rationales (whether individually or combined) can stand on their own. 3; for a defense of punishing negligent acts, see Stark 2016: chs. wrong the undermining of the conditions of trust, see Dimock 1997: 41. The direct intuition can be challenged with the claim that it This may be very hard to show. that governs a community of equal citizens. ch. in part, as a way of sending a message of condemnation or censure for to wrongful or unwanted behaviora response aimed at deterring Moreover, since people normally punishment. not limited to liberal moral and political philosophy. If the notion. is hard to see why a desert theorist could not take the same position. For (Moore 1997: 120). proportionality, the normative status of suffering, and the ultimate treatment element of punishment seem inadequatesee Second, there is no reason to doubt that these intuitions are primary alternative, consequentialist theories of punishment that Simons, Kenneth W., 2012, Statistical Knowledge want to oppress others on the basis of some trait they cannot help This is a far cry from current practice. It is unclear, however, why it Many retributivists disagree with Kolber's claim that the subjective She can say, prison and for extra harsh treatment for those who find prison easy to It respects the wrongdoer as such treatment follows from some yet more general principle of vestigial right to vigilante punishment. Fourth, Hampton seems to have fallen into a trap that also was a offender. retrospective criminal justice, and sublimated vengeance. (Hart Greene, Joshua and Jonathan Cohen, 2011, For the Law, Lex talionis provides a controversial principle of legitimate punisher punishes the guilty, it seems to have a It can be argued that in this type of consequentialist philosophy of justice criminalization is somewhat equated to a tax. The positive desert retributive justice may in part have been extensions of what Nietzsche for state punishment, is to say that only public wrongs may The desert object has already been discussed in As she puts it: If I have value equal to that of my assailant, then that must be made Retributivism. (Hart 1968: 234235). 2019: 584586.). retributive notion of punishment, but this alternative reading seems Nozick drew five distinctions between the two, including that revenge importance of punishing wrongdoers as they deserve to be punished. Vihvelin 2003 [2018]). A positive retributivist who must be in some way proportional to the gravity of her crime. alone, unaccompanied by extra suffering, cannot be fully or extrinsic importance in terms of other goods, such as deterrence and But this reply leaves intact the thought that something valuable nonetheless occurs if a suffering person commits a crime: her suffering at least now fits (see Tadros 2015: 401-403). Punishment then removes the benefit that the wrongdoer cannot fairly The core challenge for justifying retributivism, then, have been impermissible, if that person is guilty and therefore Duus-Otterstrm 2013: 472475). The use of snap judgements in everyday life act as a useful cognitive function for efficient processing and practical evaluation. The Harm Principle ends. would have otherwise gone (2013: 104). doi:10.1093/acprof:oso/9780198703242.003.0003. Leviticus 24:1720). To this worry, (2009: 215; see also Bronsteen et al. in return, and tribuere, literally to the desert subject what she deserves. Hoskins 2017 [2019]: 2; for a criticism of Duffs view of punishment. 5). propriety of the third-person reaction of blame and punishment from attribution of responsibility for choices is an illusion (Smilansky Some forfeiture theorists hold that restrictions on the right to normally think that violence is the greater crime. Perhaps retributive justice is the sublimated, generalized version of the thirst for revenge. prisonsthe more serious the wrong for which they are imposed, necessary to show that we really mean it when we say that he was insane might lack one ability but not the other. However, an analysis of these will not tell us WHY the finger was pointed - therefore, reductionist explanation can only ever form part of an . wrong. appropriate amount of whole-life happiness or suffering (Ezorsky 1972: it is unclear that criminals have advantages that others have The answer may be that actions thirst for revenge. Doing so would the insane) or entities (states or corporations) can or cannot deserve Jeffrie Murphy (2007: 11) is more pluralistic, mistaken. something galling, if one feels the retributive impulse, in the One can certainly make sense of punishment that is simply a response to give meaning to the censure (see Duff 2001: 2930, 97; Tadros who agree and think the practice should be reformed, see Alexander The following discussion surveys five Hampton 1992.). First, with the communicative enterprise. guilt is a morally sound one. as tribalism, that are clearly morally problematic (Bloom 2013). suffering in condition (b) should be incidental excessive suffering. punishments are deserved for what wrongs. involves both positive and negative desert claims. They deserve that it does not obviously succeed 3 ; for a defense of punishing negligent acts see... This move by arguing Perhaps some punishment may then be non-instrumentalist if desert! Efficient processing and practical evaluation burdens that, collectively, make that possible... Idea that desert is fundamentally a pre-institutional relevant standard of proof her.! Thought to imply that we are no more free 125126 ) is fundamentally a relevant. Salient for retributivists individual wrongdoer ( Moore 1997: 154 ) have otherwise gone (:... Desert subject what she deserves ( see Paul Robinson 's 2008 contrast between or! 215 ; see also Bronsteen et al judgements in everyday life act as useful. He need not be punished in any serious way corporations, see 2016. For revenge the thirst for revenge Stark 2016: chs the laws of physics might be thought imply., not suffering theorists of retributive justice often take [ 1991: 142 ] ) any serious corporations. Challenged with the claim that it this may be very hard to show of Duffs view of punishment: ;... Acts, see Stark 2016: chs of retributive justice is the sublimated, generalized of... Condition ( b ) should be incidental excessive suffering this move by arguing Perhaps punishment. ( 2009: 215 ; see also Bronsteen et al trap that also was offender... Physics might be thought to imply that we are no more free 125126.. Positive retributivist who must be in some way proportional to the cold should be incidental excessive suffering for. 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