Its negative desert element is deontological. It is a conceptual, not a deontological, point that one cannot punish another whom one believes to be innocent section 2. But it is a deontological point that an avenue of justification for hard treatment is opened up, making permissible what might otherwise have been impermissible, if that person is guilty and therefore forfeits her right not to be so treated. Insofar as retributivism holds that it is intrinsically good if a legitimate punisher punishes the guilty, it seems to have a consequentialist element as well.
This good has to be weighed against other possible goods to decide what it would be best to do Cahill Thus, most retributivists would accept that it is justifiable to forego punishing one deserving person if doing so would make it possible to punish two equally deserving people, or one more deserving person—as happens on a regular basis in plea-bargaining Moore —; Berman —; see also section 4.
Berman has argued that retributivism can appropriately be understood not just as having a consequentialist element, but as having an instrumentalist element, namely that punishment is a valuable tool in achieving the suffering that a wrongdoer deserves. But he argues that retributivism can also be understood as non-instrumentalist if the desert object is punishment, not suffering. It would be non-instrumentalist because punishment would not be a means to achieving the good of suffering; it would be good in itself.
As argued in section 4. The principal focus of concern when it comes to justifying retributivism is justifying its desert object. The question is: if we can assume that the institutions of punishment can be justified all things considered, can we justify the claim that wrongdoers deserve censure and hard treatment?
Censure is surely the easier of the two. It respects the wrongdoer as a responsible agent to censure her, and it respects the victim if there is one to stand up for her as someone whose rights should have been respected.
The core challenge for justifying retributivism, then, is justifying the claim that hard treatment is equally deserved. These will be handled in reverse order. The argument here has two prongs. First, most people intuitively think that it is important to punish wrongdoers with proportional hard treatment, even if no other good would thereby be brought about. Second, there is no reason to doubt that these intuitions are reliable. It seems clear that the vast majority of people share the retributive intuition that makes up the first prong Moore Consider again the example of the incapacitated rapist mentioned in section 1.
The intuition is widely shared that he should be punished even if doing so is expected to produce no consequentialist good distinct from him getting the punishment he deserves. The weakness of this strategy is in prong two. One might suspect that retributive intuitions are merely the reflection of emotions, such as a thirst for vengeance, that are morally dubious. They may be deeply grounded in our species as part of our evolutionary history, but that fact by itself is insufficient to consider them morally reliable—compare other deeply engrained emotional impulses, such as tribalism, that are clearly morally problematic Bloom Foremost among these is the argument that we do not really have free will—see section 4.
Respect for the dignity of wrongdoers as agents may call for censuring them when they do wrong, and with requiring them to make reparations when those can be made. It is unclear, however, why it calls, in addition, for hard treatment. Rather, sympathy for wrongdoers as products of their biology and environment seems to call for mercy and forgiveness for a contrary view, see Levy Moore has an interesting response to this sort of criticism.
He turns to the first-person point of view. As a result, he hopes that he would welcome punishment for having committed such a crime. This is a rhetorically powerful move, but it is nonetheless open to four objections. First, it presupposes that one can infer the propriety of the third-person reaction of blame and punishment from the first-person reaction of guilt and self-punishment.
But there are things a person should do to herself that others should not feel equally free to do to her Duff ; Zaibert 94— Second, it may reflect only the imagination of a person who has committed no such serious crimes, rather than the insight of a person who knows what it is like to have committed a serious crime and then tried to come to terms with himself.
Third, it equates the propriety of feeling or inflicting guilt with the propriety of adding punishment to guilt. But why is guilt itself not enough see Husak 59—60?
Fourth, one can question whether even the reaction of guilt is a morally sound one. Consider what Jeffrie Murphy 18 said, as a mature philosopher, looking back on his own efforts to justify retributivism:. If I had been a kinder person, a less angry person, a person of more generous spirit and greatness of soul, would robust retributivism have charmed me to the degree that it at one time did? I suspect not. The point is not to say that this first justificatory strategy fails.
It is to say that it does not obviously succeed. The notion of retributive justice would be on sounder footing if this justification were supplemented by a theoretical justification for punitive hard treatment that ties it to a more general set of principles of justice. Doing so would help dispel doubts that retributive intuitions are the crabbed judgments of a squinty, vengeful, or cruel soul.
Arguably the most popular theoretical framework for justifying retributivism in the past fifty years or so has been Herbert Morris's appeal to fairness. The argument starts with the thought that it is to our mutual benefit to live in society, and that to be in society, we have to accept certain limits on our behavior.
It then continues with this claim:. If a person fails to exercise self-restraint even though he might have… he renounces a burden which others have voluntarily assumed and thus gains an advantage which others, who have restrained themselves, do not possess.
This is done with hard treatment. Though influential, the problems with this argument are serious. First, it is unclear that criminals have advantages that others have forsaken.
Suppose someone murders another in a moment of anger, triggered by a minor offense. What if most people feel they can express their anger sufficiently in such situations by expressing it in words? Then it seems that the only advantage he has is being able to express his anger violently. But if most people do not, at least not upon reflection, wish to do that sort of thing, then he is not renouncing a burden that others too wish to renounce.
Even if there is some sense in which he gains an advantage over others, such as the advantage of being free to use violence, what would then be the proper measure of bringing him back in line? Fraud may produce a much greater advantage, but we normally think that violence is the greater crime.
Davis challenges this framing of the advantage gained, suggesting the right test is the value a crime would find at an auction of licenses to commit crimes; Shafer-Landau rejects this solution as equally implausible.
More problematically yet, it seems to be fundamentally missing the point to say that the crime of, for example, murder is, at bottom, free riding rather than unjustly killing another. An alternative interpretation of Morris's idea is that the relevant benefit is the opportunity to live in a relatively secure state, and the wrong is not the gaining of an extra benefit but the failure to accept the burdens that, collectively, make that benefit possible.
Punishment then removes the benefit that the wrongdoer cannot fairly lay claim to, having shirked the burden that it was her due to carry see Westen This interpretation avoids the first of the problems outlined above.
But it still has difficulty accounting for the thought that a crime such as murder is not fundamentally about free riding.
Moreover, it has difficulty accounting for proportional punishment in a plausible way. Presumably, the measure of a proportional punishment would be something like this: the greater the shirking of one's duty to accept the burdens of self-restraint, the larger should be one's punishment.
But how do we measure the degree of shirking? By the harm one causes or risks causing, by the benefit one receives, or by the degree to which respecting the burden shirked would have been burdensome? Only the first corresponds with a normal retributive notion of punishment, but this alternative reading seems to point to one of the latter two meanings as the measure of unjust gain. In addition, this view seems to imply that one who entered a secure society from some sort of failed state, and who has not yet benefited from the secure state, cannot be punished if she commits violent criminal acts in the secure state.
This is quite an odd implication, though one that a social contract theorist might be willing to accept. For another attempt to develop a better Morris-like view, making the wrong the undermining of the conditions of trust, see Dimock For a criticism, see Korman For an attempt to build on Morris's idea, translating the basic wrong into flouting legitimate, democratic law, see Markel Jean Hampton tried to improve upon the unfair advantage theory by focusing on the idea that what wrongdoers at least those who have victims do is an affront to the victim, not just to the whole community.
Her view is that punishment must somehow annul this affront. As she puts it:. If I have value equal to that of my assailant, then that must be made manifest after I have been victimized.
By victimizing me, the wrongdoer has declared himself elevated with respect to me, acting as a superior who is permitted to use me for his purposes. A false moral claim has been made… The retributivist demands that the false claim be corrected. The lord must be humbled to show that he isn't the lord of the victim.
It is a symbol that is conceptually required to reaffirm a victim's equal worth in the face of a challenge to it. This theory too suffers serious problems. First, why think that a wrongful act seriously challenges the equal moral standing of all? It may imply that the wrongdoer thinks of himself as above either the law in general or his victim in particular. But he's simply mistaken. Unless there is a danger that people will believe he is right, it is not clear why there is a pressing need to correct him.
Second, even if the message is offensive in a way that calls for correction, why isn't the solution simply to reaffirm the moral status of the victim, to censor the wrongdoer, and perhaps to require the wrongdoer to make compensation?
Perhaps some punishment may then be necessary to show that we really mean it when we say that he was mistaken. Third, the message of equality through turning the tables seems peculiar. Fourth, Hampton seems to have fallen into a trap that also was a problem for Morris, namely substituting one wrong for another.
The wrong of being raped is not the message that the rapist sends; it is the rape. For variations on these criticisms, see Dolinko —; for Hampton's replies to her critics, see Hampton Antony Duff and offers a communication theory according to which punishment is necessary to communicate censure for wrongdoing. It might be objected that his theory is too narrow to provide a justificatory framework for retributivism generally, because it is framed as a theory for legal punishment, meted out by a state that governs a community of equal citizens.
The same applies to the similar theory developed by Markel But arguably it could be extended to any community. Putting the narrowness issue aside, two questions remain. The first is whether it is constructive for the sort of community that Duff strives to preserve to condemn wrongdoers.
As Lacey and Pickard a put it, stigmatizing offenders with condemnation alienates them from society and they are likely alienated already and undermines their potential to see themselves as eventually redeemed. To this worry, Duff may be able to respond that the form of condemnation he has in mind is nothing more than treating wrongdoers as responsible for their criminal acts.
As Duff raises the issue:. Duff Punishment, on this view, should aim not merely to communicate censure to the offender, but to persuade the offender to recognize and repent the wrong he has done, … and to make apologetic reparation to those whom he wronged. Indeed, Lacey and Pickard a suggest that hard treatment actually interferes with the communicative enterprise.
One might think it is enough for retributivist accounts of punishment if hard treatment can constitute an important part of communicating to both the wrongdoer and the rest of the community the censure that the wrongdoer deserves. The worry, however, is that it may not suffice to say that hard treatment is one possible method of communicating censure. Given the normal moral presumptions against imposing suffering on others, it may be necessary to show that censure alone, unaccompanied by extra suffering, cannot be fully or properly communicated.
This may be very hard to show. Though the possibility that the value of suffering may depend on the context in which it is experience or inflicted—see section 4. Retributive justice has a deep grip on the punitive intuitions of most people. Nevertheless, it has been subject to wide-ranging criticism. Arguably the most worrisome criticism is that theoretical accounts of why wrongdoers positively deserve hard treatment are inadequate.
If they are inadequate, then retributive justice provides an incomplete theory of punishment, one that at most explains why wrongdoers deserve censure.
Even the idea that wrongdoers forfeit the right not to be suffer proportional hard treatment might be better explained by appeal to other explanations of why hard treatment 1 is instrumentally valuable, and 2 is consistent with respect for the wrongdoer. The question is, what alternatives are there?
Consider, for example, the proposal to replace moral desert with something like institutional desert, i. Surely there is utility in having such institutions, and a person would normally have a fair chance to avoid punishment—with the rare exception of false convictions—simply by avoiding wrongdoing. Nevertheless, this sort of justification of legal or institutional desert cannot straightforwardly explain the proportionality limit that forms such a core part of the intuitive appeal of retributive justice.
To explain why the law may not assign whatever punishments the lawmakers reasonably conclude will produce the best effects overall, the idea of retributive justice may be essential. This limitation to proportional punishment is central to retributivism.
The negative desert claim holds that only that much punishment may be inflicted, and the positive desert claim holds that that much punishment, but no more, is morally deserved and in that sense respectful of the wrongdoer. Unless one is willing to give up on the idea that morality imposes a proportionality limit and on the importance of positive moral desert for justifying punishment up to that point as respectful of the individual—both intuitively difficult to give up—there is reason to continue to take notion of retributive justice, and the project of justifying it, seriously.
The concept of retributive justice has been used in a variety of ways, but it is best understood as that form of justice committed to the following three principles: that those who commit certain kinds of wrongful acts, paradigmatically serious crimes, morally deserve to suffer a proportionate punishment; that it is intrinsically morally good—good without reference to any other goods that might arise—if some legitimate punisher gives them the punishment they deserve; and that it is morally impermissible intentionally to punish the innocent or to inflict disproportionately large punishments on wrongdoers.
The Appeal of Retributive Justice 2. Background Concepts 2. Range of Meanings and Uses 3. Range of issues 4. The Question of Justification 5. The Appeal of Retributive Justice The appeal of retributive justice as a theory of punishment rests in part on direct intuitive support, in part on the claim that it provides a better account of when punishment is justifiable than alternative accounts of punishment, and in part on arguments tying it to deeper moral principles.
Background Concepts Two background concepts should be addressed before saying more about retributive justice: 1 punishment, and 2 the sorts of wrongs for which punishment might be thought deserved.
Invoking the principle of equality for punishment, Kant writes: whatever undeserved evil you inflict upon another within the people, that you inflict upon yourself. Robert Nozick drew five distinctions between the two, including that revenge is personal but retribution is not, and that [r]evenge involves a particular emotional tone, pleasure in the suffering of another, while retribution either need involve no emotional tone, or involves another one, namely, pleasure at justice being done.
Range of issues This section will address six issues that arise for those trying to make sense of retributive justice: 1 the nature of the desert claim and questions it raises; 2 the proper identity of the punisher; 3 the normative status of suffering; 4 the meaning of proportionality; 5 the strength of retributive reasons; and 6 whether retributivism should be thought of as a consequentialist or deontological theory. As Joel Feinberg wrote: desert is a moral concept in the sense that it is logically prior to and independent of public institutions and their rules.
Feinberg 87 Accordingly, one challenge theorists of retributive justice often take themselves to have is to show how the criminal justice system can be, at least in part, justified by claims that wrongdoers deserve punishment in a pre-institutional sense.
But as Hart put it, retributive justice appears to be a mysterious piece of moral alchemy in which the combination of the two evils of moral wickedness and suffering are transmuted into good. As Andrew von Hirsch and Andrew Ashworth put it: What makes punishments more or less onerous is not any identifiable sensation; rather, it is the degree to which those sensations interfere with people's legitimate interests —interests people generally share, such as in freedom of movement, choice regarding … activities, choice of associates, privacy, and so on.
The retributivist can then justify causing excessive suffering in some people—too little suffering is less objectionable—if three conditions obtain: the punishment that leads to it is itself deserved, the importance of giving wrongdoers what they deserve—both the intrinsic importance in terms of retributive justice and the extrinsic importance in terms of other goods, such as deterrence and incapacitation thereby achieved—is sufficiently high to outweigh the bad of excessive suffering, and the problems with eliminating excessive suffering are too great to be overcome without excessive costs to other morally important ends.
Focusing only on the last condition, there are at least four reasons to think it obtains: individual tailoring of punishment invites gaming the system; would be perceived by some as unfair because those who claim to be extra sensitive would seem to be given undue leniency, and that would lead to resentment and extra conflict; would undermine predictability, which would arguably be unfair to people contemplating a crime in the same way that ex post facto increases in punishment are considered unfair; and would likely lead to abuse of power.
For responses to an earlier version of this argument, see Kolber — The primary costs of establishing the institutions of criminal punishment are: Financial: according the U. See Husak for the first three. The Question of Justification The principal focus of concern when it comes to justifying retributivism is justifying its desert object.
It then continues with this claim: If a person fails to exercise self-restraint even though he might have… he renounces a burden which others have voluntarily assumed and thus gains an advantage which others, who have restrained themselves, do not possess.
As she puts it: If I have value equal to that of my assailant, then that must be made manifest after I have been victimized. Duff One answer he gives is that: [P]enal hard treatment [is] an essential aspect of the enterprise of moral communication itself.
Conclusion: Retributive justice has a deep grip on the punitive intuitions of most people. Berman, Mitchell N. Duff and Stuart Green eds. Cahill, Michael T. Christopher, Russell L. Zalta ed. Censure has to do with the amount of blame a punishment communicates.
Footnote 27 Hard treatment concerns what a punishment does in a more outward sense: in what ways does it deprive the offender of something he or she values, or infringes some of his or her rights? It seems that nudging the hard treatment component is much easier than the censure component.
Consider the hypothetical case of the Lenient Society :. Lenient Society : Once upon a time there was a society that was very strict about law and order. People who broke the law were sent to prison for many years. The politicians thought the punishments far too draconian and decided to scale them down across the board. But, knowing full well that the legitimacy of the criminal justice system depends on the public accepting the punishments as retributively just, they did so gently.
Each year they reduced the punishments slightly. For example, in the olden days murderers were sentenced to 50 years. This punishment was reduced by one year annually. Forty nine years later, the punishment for murder was one year. Everyone thought this was what a murderer deserved, no more and no less. Did the punishment for murder become more lenient? The idea that the censuring element of punishment has to do with relative rather than absolute severity clashes with how some penologists think.
On the view I have suggested, this is not the case. The most plausible way to flesh out this account is that censure has to do with the relative severity of hard treatment.
Which of the two accounts is true is an empirical question, and I am unaware of any study that could help us choose between them. But seeing the difference between them is important for the normative question of whether successful penal nudging would be a good thing. As I will argue in the next section, penal nudging seems desirable if, as the separability account admits, it does not affect the levels of censure.
Whether it would be desirable on the inseparability account is less clear. The most morally problematic part about punishment is hard treatment.
It is primarily hard treatment that disrupts relationships, ruins careers, and puts a significant strain of the public coffers. It is much less pressing—if desirable at all—to reduce how much offenders are censured for their crimes. Indeed, the displeasure produced by censure is usually thought of as the core retributive good.
And, under such conditions, penal nudging would presumably be a good thing. We would get the same amount of what seems central to retributive justice—censure—while inflicting less hard treatment. On the inseparability account, it is much less clear whether retributivists should endorse penal nudging. Since this account holds that amount of censure is a function of the amount of hard treatment, reducing the amount of hard treatment means less censure. Would this be a good thing according to a retributivist?
If people are censured less in the future, and as a result experience less guilt, then it appears we have lost something of value as far as retributivists are concerned. Put simply, there would be less deserved blame. But note that this response once again brings the difference between objective retributivism and popular retributivism into focus, as it assumes that there is a correct standard as to how much blame an offender really deserves or at least a sense in which an offender could be blamed too little.
Popular retributivists would deny this, and so they would see nothing in itself problematic about levels of censure coming down. Context sensitivity, too, seems counterintuitive in light of penal nudging.
Context sensitivity means that criminal seriousness and penal severity are affected by changing social, cultural, and political circumstances. And from what position could that development then be condemned? There is, however, an important difference between context-sensitive and convention-sensitive retributivism.
Unlike the latter, the former is fully compatible with an objective approach to sentencing. Context-sensitive retributivism merely says that, if a harm of a certain magnitude is inflicted, then a punishment of a certain magnitude is deserved. This is compatible with taking a normative approach to the context itself. If this is held, and if it is known that penal nudging will eventually affect how people typically regard defamation, then this provides a reason not to nudge punishments for defamation.
Recall that we are now assuming that the inseparability account is correct, meaning that censure is a function of hard treatment. The point is that, if we can foresee that reducing hard treatment would trivialize crime, retributivists may conclude that reducing hard treatment is undesirable, and nothing about context sensitivity contradicts that conclusion.
This line seems to me intuitively appealing. After all, it is conceivable that public beliefs and values change considerably over time. Even without manipulation or other kinds of nefarious influence, the public may come to treat crimes we currently regard as serious as quite minor. Still, at the level of intuition, most of us have no problem imagining that society might adopt bad values in the future, including values that pertain to punishment and retributive justice. This also has implications for a topic I have skirted around in this paper: criminalization.
Retributivists hold that only appropriately criminalized actions deserve punishment. But are there external constraints as to which actions may be criminalized or could any action in principle come within the purview of the criminal law? Convention-sensitive retributivists would struggle to put any external constraints on the criminal law.
Context-sensitive retributivists, however, would not, precisely because they can take a normative approach to the context in which punishment is practiced. True, if actions we currently take to be minor wrongs were to become regarded as serious public wrongs, this would permit criminalizing them according to context-sensitive retributivism.
But context-sensitive retributivism need not take an ex post perspective. It can say that, while minor wrongs could permissibly be criminalized given certain societal or cultural changes, this would be a development for the worse, and one whose preconditions should be resisted.
It fairly common to argue that congruence between penal policy and public opinion is important for consequentialist reasons, but not much has been written about whether it could also be important according to retributivism.
I have argued that there are ways of making retributivism sensitive to public opinion or public conventions without arriving at the conclusion that popular conventions should govern retributive justice itself. I have suggested that retributivists can be context sensitive while taking an objective approach to desert. Moreover, they can take a normative approach to the context in which punishment is to be practiced, refraining from ushering in changes that would mean that serious crimes are regarded as more minor.
It is my hope that this paper will encourage political and legal philosophers to think more about the relationship between public opinion and retributivism as well as about the constituent parts of deserved punishment more generally. We know less about these important questions than we should. Sensitivity to public opinion can take different forms and vary in strength, but in general it is measured in terms of policy congruence, which is the fit between policies and the policy preferences of citizens Andeweg Policy congruence is related to the concept of policy responsiveness , which is when changes in public opinion are reflected in policy Stimson et al.
In recent years, scholars have started to disaggregate public opinion in order to get a more nuanced picture of policy congruence; see, e.
For democratic arguments for popular punishment, see Dzur and Bennett For overviews of communicative or expressive versions of retributivism, see Boonin , — , Brooks , — , and Hoskins For statements of communicative retributivism, see, e.
But a theory that justifies punishment at least partly in terms of its communicating appropriate censure in my view qualifies as retributivist. Emphasis added.
To the best of my knowledge, this argument has been most carefully developed by Matravers I will return to his argument below. For internal versus external criticism, see, e.
Positive retributivism holds that it is permissible, and normally desirable, to inflict the deserved punishment precisely because it is deserved.
For different versions of positive retributivism, see Boonin , Ch. Note that there can be non-retributivist reasons to endorse retributive sentencing Rachels Negative retributivism belongs to mixed views since it holds that desert puts an upper limit on the pursuit of other penal aims Lippke For a recent paper reporting some misgivings about retributivism and harm, see Tomlin What I say in this section differs from how some prominent penologists put it Duff , —; von Hirsch and Ashworth , Ch.
This is a non-standard way of speaking of ordinal and cardinal scales, and one that I think should be abandoned. Note that the popular standards popular retributivism refers to could operate on the ranking and spacing of the items, too, and not only the way they are paired.
I return to this shortly, when I make the distinction between context sensitivity and convention sensitivity about desert. There is a huge political science literature on the nature of public opinion. A modern classic is Zaller Kuklinksi and Peyton offer a good overview. Brooks , — has a good discussion of these questions. He notes that there is much less agreement about how to rank crimes outside this core. Although, as Robinson , — also notes, the public tends to be more lenient than its state.
Robinson suggests that this puzzle could be explained by ignorance: the public tends to express a desire for harsher sentences because it is unaware of the fact that actual penal policy already exceeds its standards of desert. This explanation does not invalidate the point that desert standards could vary between countries, however. One reason not to hold different societies to our penal standards has to do with respect for democratic self-determination, the idea being that each society should get to decide which penal standards to adopt.
Here, however, I am interested in the idea that the standards of desert change between different countries, which is a different matter. But his criticism in other places relies on epistemic uncertainty and on political liberalism.
Another possibility here is that the severity of punishment is subjective in the sense that it tracks how bad it feels for the particular person undergoing it.
Penologists usually want to avoid this view since it would expose retributivism to the unwelcome implication that tough-minded offenders should get more severe punishments than delicate ones von Hirsch and Ashworth , ; see, however, Kolber ; Husak , —; Tonry , 19— Another possibility is that Matravers only wants to argue that criminal seriousness and penal severity are conventionally defined, which in turn affects proportionate punishment in a derivative way.
These remarks are about the harm component of criminal seriousness, but similar things could perhaps be said about the culpability component. Culpability is often taken to vary with going from worst to least bad intention, knowledge, recklessness, or negligence.
It is conceivable that the order between these mental states could change with context, too. But I suspect that criminal law here follows moral common sense in a way that would make a different order unlikely.
I will set this fascinating question aside here. This glosses over important nuance and does not do justice to different examples of communicative retributivism, but I believe it captures the central claim of these theories.
There could of course be other reasons, such as the need for general deterrence or incapacitation, that speak against making punishment less harmful, but we are here focusing exclusively on retributivist reasons.
As noted in the introduction, Robinson argues that congruence between the criminal law and public opinion is important for ultimately consequentialist reasons. This way of putting it is vague between what the state intends to communicate and what the offender experiences. One reaction to this example is that it undermines the assumption of a singular deserved response for every crime. I think it is a mistake to conflate punishment and hard treatment in this way.
Generically understood, punishment consists in setting back the interests of an offender. We see this particularly clearly if we imagine that the severity of a punishment could be mapped onto a scale of hedonic wellbeing. For a defense of separating censure and hard treatment, see Husak , — and Scanlon Proportionality in punishment may therefore require less hard treatment when offenders have suffered or will suffer a lot of censure. For example, public figures who have been vilified in the press may be entitled to less hard treatment, in order not to be punished more harshly than they deserve.
We need not accept this assumption to accept that censure can contribute independently to the severity of a punishment. Tadros argues that while that it is good that offenders recognize that what they did was wrong it is not intrinsically good that they feel bad about it. For critical discussion, see Husak Some argue that punishment especially imprisonment is justified in part because it provides a setting for offenders to confront uncomfortable questions about themselves.
Prison terms should not be so short as to undermine self-reflection and potential moral reform. A possible rejoinder on behalf of popular retributivism is that what is lost is not so much censure of the offender as it is condemnation of the crime. Thus, the problem with penal nudging is that it risks trivializing crime, either in an empirical sense if people start to censure murderers less, they will also tend to condemn murder less or in a conceptual sense the degree to which a society censures people who commit crimes is the same thing as the degree to which it condemns those crimes.
This is obviously just a sketch of an answer. For insightful discussion about the limits of criminal law, see Tomlin Andeweg, Rudy. Amsterdam: Amsterdam University Press, 39— Google Scholar. Bennett, Cristopher. The Apology Ritual. Cambridge: Cambridge University Press. Book Google Scholar. Bennett, Christopher. Oxford: Oxford University Press, — Chapter Google Scholar. Bird, Colin. An Introduction to Political Philosophy. Boonin, David.
The Problem of Punishment. Brooks, Thom. London: Routledge. Davis, Michael. Article Google Scholar. Duff, Antony. Punishment, Communication, and Community. Oxford: Oxford University Press. Dzur, Albert. Punishment, Participatory Democracy, and the Jury. New York: Oxford University Press. Gilens, Martin. Princeton: Princeton University Press. Hestevold, Scott. Hoskins, Zachary. Husak, Douglas. Kagan, Shelly.
The Geometry of Desert. Kant, Immanuel. The Metaphysics of Morals. Mary Gregor, trans. Kolber, Adam. Kuklinksi, James, and Buddy Peyton. Many people will agree with Hart that it may be necessary to punish an innocent person in extreme cases, and it is thought to be an advantage of his theory that it captures the sense that, in these cases, an important principle is being overridden.
This overriding process, however, cannot work in the opposite direction. Because of this, it is unjustifiable to punish a person who seems to deserve punishment unless some utilitarian aim is being furthered. Imagine the most despicable character you can think of, a mass-murderer perhaps. The justifiability of punishing a person guilty of such crimes is beholden to the social consequences of the punishment.
That a depraved character would suffer for his wrongdoing is not enough. So, for Hart, considerations of desert cannot override utilitarian considerations in this way. Some theorists find this consequence of his theory unacceptable. In an effort to answer this question, we must consider whether the offender who has committed the lesser crime has grounds for complaint if the more serious offender is not punished.
By stipulation, the lesser offender committed the crime and cannot thereby claim a violation of justice on those grounds. Is the justification of his punishment contingent upon the punishment of others? Arguably not: The punishment of the lesser offender is justified regardless of whoever else is punished. He may bemoan his bad luck and wish that his punishment were not likely to further any utilitarian aims so that he may avoid it, but he cannot rightly accuse society of a violation of justice for failing to punish others when he does in fact deserve the punishment that is being inflicted upon him.
Perhaps we ought to reexamine that intuition and consider that it may be rooted in an urge to revenge, not a concern for justice. The belief that, in most cases, the amount of punishment should vary directly with the seriousness of the offense is widely accepted. However, utilitarians and retributivists have different ways of arriving at this general conclusion.
Crime and punishment both tend to cause unhappiness. Recall that utilitarianism is solely concerned with the balance of happiness over unhappiness produced by an action.
When attempting to determine the amount of punishment that ought to be permitted for a given offense, it is necessary to weigh the unhappiness that would be caused by the offense against the unhappiness caused by various punishments.
The greater the unhappiness caused by a given offense, the greater the amount of punishment that may be inflicted for that offense in order to reduce its occurrence before the unhappiness caused by the punishment outweighs the unhappiness caused by the offense Ten, So, utilitarians would often be committed to abiding by the rule that the amount of punishment should vary directly with the seriousness of the offense.
However, it seems that there are cases in which they would be committed to violating this rule. Critics argue that utilitarians would sometimes be committed to inflicting a severe punishment for a relatively minor offense. Ten asks us to imagine a society in which there are many petty thefts and thieves are very difficult to catch. Since there are many thefts, the total amount of unhappiness caused by them is great. Imagine that one thief is caught and the authorities are deciding how severely to punish him.
If these authorities were utilitarians, they would be committed to giving him a very severe sentence, 10 years perhaps, if this were the only way to deter a significant number of petty thieves. But surely making an example of the one thief who was unlucky or unskilled enough to be caught is unjust.
Since utilitarians are sometimes committed to inflicting such harsh punishments for relatively minor offenses, their approach must be inadequate Retributivists argue that more serious offenses should be punished more severely because offenders who commit more serious crimes deserve harsher punishment than those who commit less serious crimes. Given our previous discussion of retributivism, it should not come as a surprise that the concept of desert plays a central role here.
Those who argue that murderers ought to be put to death have often invoked this principle, but it is rarely invoked when attempting to determine the proper punishment for other crimes.
Its lack of popularity can be explained by noting a couple of objections. First, it is difficult to apply to many offenses, and it seems to be outright inapplicable to some. How should we punish the counterfeiter, the hijacker, or the childless kidnapper?
Applying the lex talionis to these crimes is, at the very least, problematic. Second, there are many cases in which it would require that we punish offenders by performing actions that ought not to be carried out by any government Surely we should not rape rapists!
For these and other reasons, except when the topic at hand is capital punishment, appeals to the lex talionis in the contemporary literature are rare. Many contemporary retributivists hold that the principle of proportionality should be used in order to determine the amount of punishment to be meted out in particular cases. Different versions of the proportionality principle call for different ways of establishing how severe a punishment must be in order to meet the demands set by the principle.
Must it merely be the case that there be a direct relationship between the amount of punishment and the seriousness of the offense, or must offenders suffer the same amount as their victim s in order for the demands of the principle to be met? Retributivists are not in complete agreement on how to answer this question. While retributivists seem to have an easier time ensuring that there be a direct relationship between the amount of punishment and the seriousness of the offense, their position is subject to criticism.
Because they are committed to inflicting the deserved punishment, they must do so even when a lesser punishment would produce the same social effects.
Clearly, this criticism runs parallel to the objection to retributivism discussed in section 2: if the retributivist is committed to inflicting the deserved punishment regardless of the social effects, then it seems that he is committed to inflicting gratuitous pain on an offender. Of course, some resist the idea that inflicting suffering in such a case would be gratuitous, which is why this debate continues. In any case, the perceived shortcomings of both the utilitarian and retributive approaches have led theorists to attempt to develop approaches that combine elements of both.
Capital punishment involves the deliberate killing of a supposed or actual offender for an offense. Throughout history and across different societies, criminals have been executed for a variety of offenses, but much of the literature is devoted to examining whether those convicted of murder ought to be executed, and this discussion will be similarly focused.
A combination of utilitarian and retributive considerations are usually invoked in an effort to justify the execution of murderers. The centerpiece of most arguments in favor of capital punishment is retributive: Murderers deserve to be put to death. Utilitarian considerations generally play a large role as well. Proponents argue that the threat of capital punishment can deter potential murderers.
In addition, proponents point to the fact that capital punishment is the ultimate incapacitation. Clearly, if a murderer is dead, then he can never harm anyone again. Opponents of capital punishment challenge proponents on each of these points.
Albert Camus denies that murder and capital punishment are equivalent to one another:. But what is capital punishment if not the most premeditated of murders, to which no criminal act, no matter how calculated, can be compared?
If there were to be a real equivalence, the death penalty would have to be pronounced upon a criminal who had forewarned his victim of the very moment he would put him to a horrible death, and who, from that time on, had kept him confined at his own discretion for a period of months.
It is not in private life that one meets such monsters This argument and others that resemble it are often put forth in an attempt to counter the retributive argument. Also, any criminal justice system that executes convicted criminals runs the risk of executing some individuals who do not deserve to be executed: the wrongfully convicted. Some argue that a fallible criminal justice system ought not to impose a penalty that removes the possibility of mistakes being rectified.
The utilitarian arguments have also come under attack. Some argue that the proponents of capital punishment have overstated its deterrent value, and it has been argued that it may even incite some people to commit murder Bedau, Regarding incapacitation, it has been argued that the danger involved in failing to execute murderers has been similarly overstated These issues introducing punishment have received a great deal of attention in the professional literature, and many philosophers continue to discuss them and offer various answers to the questions that are raised.
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