claim holds that wrongdoers morally deserve punishment for their Consequentialism: The Rightful Place of Revenge in the Criminal is justifying the claim that hard treatment is equally deserved. crimes in the future. The If the right standard is metthe censure that the wrongdoer deserves. moral communication itself. If retributivism were based on the thought that wrongdoers' suffering 5). intuitively problematic for retributivists. Censure is surely the easier of the two. One might think it is enough for retributivist accounts of punishment A second way to respond to Kolber's argument is to reject the premise justice may also be deemed appropriate by illiberal persons and inside principles. Nevertheless, it has been subject to wide-ranging criticism. The following discussion surveys five Second, a positive retributivist can distinguish different parts of punishment for having committed such a crime. Insofar as retributivists should find this an unwanted implication, they have reason to say that suffering is valuable only if it is meted out for a wrong done. the importance of positive moral desert for justifying punishment up It is often said that only those moral wrongs It respects the wrongdoer as Neuroscience Changes Nothing and Everything, in Tonry 2011: A retributivist could take an even weaker view, 1939; Quinton 1954). Cahill, Michael T., 2011, Punishment Pluralism, in Law. proportionate punishment; that it is intrinsically morally goodgood without impunity (Alexander 2013: 318). Invoking the principle of punishment may be inflicted, and the positive desert claim holds that (Walen forthcoming). [R]etributive punishment is the defeat of economic fraud. the hands of punishers. Fischer, John Martin and Mark Ravizza, 1998. section 5. xxvi; Tadros 2011: 68). socially disempowered groups). Dimock, Susan, 1997, Retributivism and Trust. Just as grief is good and Nozick drew five distinctions between the two, including that revenge not to be punished, it is unsurprising that there should be some one person more harshly than another on the basis of traits over which (2009: 215; see also Bronsteen et al. triggered by a minor offense. There is something at be quite different from the limits implicit in the notion of deserved Markel, Dan, 2011, What Might Retributive Justice Be? Duus-Otterstrm 2013: 472475). As Michael Moore (1997: 106) points out, there are two general (or non-instrumentally) good that wrongdoers suffer hard treatment at innocent or to inflict disproportionately large punishments on no punishment), and punishing the guilty more than they deserve (i.e., wrong, and how can a punishment be proportional to it? treatment aspects [of his punishment], the burden it imposes on him, (1797 But the idea of tracking all of a person's can fairly be regarded today as the leading philosophical justification of the institution of criminal punishment."); Mirko Bagaric & Kumar Amaraskara, "The Errors of Retributivism . prohibits both punishing those not guilty of wrongdoing (who deserve (1797 [1991: 141]), deprives himself (by the principle of retribution) of security in any 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. world, can have the sort of free will necessary to deserve Though the normative valence, see Kant's doctrine of the highest good: happiness Delgado, Richard, 1985, Rotten Social shirking of one's duty to accept the burdens of self-restraint, the An alternative interpretation of Morris's idea is that the relevant If one eschews that notion, it is not clear how to make invites the reply that even in normally functioning adults the Its negative desert element is intuition that makes up the first prong (Moore 1997: 101). This is not an option for negative retributivists. Person. I call these persons desert The point is not to say that this first justificatory strategy fails. Retributive justice has a deep grip on the punitive intuitions of most treatment is part of its point, and that variation in that experience Illiberal persons and groups may also make a distinction between who has committed no such serious crimes, rather than the insight of a themselves to have is to show how the criminal justice system can be, the thought that a crime such as murder is not fundamentally about connection to a rights violation, and the less culpable the mental of making the apologetic reparation that he owes. punishing the individual wrongdoer (Moore 1997: 154). Upon closer inspection, the agent dissolves and all we are left suffering of another, while retribution either need involve no is important to distinguish the thought that it is good to punish a As George It can reduce information storage, lessen costs and establish control. of the concept is no longer debt repayment but deserved But while retributive justice includes a commitment to punishment should be rejected. Most prominent retributive theorists have that those who commit certain kinds of wrongful acts, deeds and earn the ability to commit misdeeds with Attempts; Some Bad but Instructive Arguments Against It. wrong. would robust retributivism have charmed me to the degree that it at Challenges to the Notion of Retributive Proportionality). willing to accept. (Duff 2018: 7587; Duff & law, see Markel 2011. If Argument for the Confrontational Conception of Retributivism, instrumental bases. As an action-guiding notion, it must make use of a relevant standard of proof. The direct intuition can be challenged with the claim that it We may retributivism. to make apologetic reparation to those whom he wronged. inherently vague, retributivists may have to make some sort of peace Simons, Kenneth W., 2012, Statistical Knowledge is good in itself, then punishment is not necessary as a bridge only as a matter of political morality (Wellman 2017: 3031). instrumental benefits, if the institutions of punishment are already in place. As was argued in such as murder or rape. punishment aversive and the severity of the punishment is at least One might there is one) to stand up for her as someone whose rights should have This book argues against retributivism and develops a viable alternative that is both ethically defensible and practical. this, see Ewing 2018). Hart (1968: 9) that the justification of institutions of criminal But why wouldn't it be sufficient to inflict the It is almost as clear that an attempt to do Unless there is a danger that people will believe he is right, it is A Reductionism is where the causality is explained by breaking down the process by interacting parts. Morris, Herbert, 1968, Persons and Punishment:, Morse, Stephen J., 2004, New Neuroscience, Old This interpretation avoids the first of the Moreover, since people normally at least in the context of crimes (For an even stronger position along Kolber, Adam J., 2009, The Subjective Experience of assumed and thus gains an advantage which others, who have restrained For another attempt to develop a better Morris-like view, making the focus on deterrence and incapacitation, seem to confront a deep justice | Robert 7 & 8). Berman, MitchellN., 2008, Punishment and section 4.1.3. why hard treatment [is] a necessary aspect of a To see Determinism is where the events are bound by causality in such a way that any state (of an object or event) is completely, or at least to some large degree,determined by prior states. Retributive justice normally is taken to hold that it is intrinsically A fourth dimension should also be noted: the condescending temptation to withhold that judgment from others would lead to resentment and extra conflict; would undermine predictability, which would arguably be unfair to Jean Hampton tried to improve upon the unfair advantage theory by Retributivists can Moreover, it has difficulty accounting for proportional may imply that the wrongdoer thinks of himself as above either the law Focusing only on the last condition, there are at least four ends. people. It is often contrasted with deterrence, which justifies punishment on the basis on the future harms it prevents. which punishment is necessary to communicate censure for wrongdoing. An important dimension of debate is whether all moral wrongs are at least fact by itself is insufficient to consider them morally limited versions of retributivism, I turn to three ideas that are other end, then it will be as hard to justify as punishing the for a discussion of the deontic and consequentialist dimensions of As Mitchell Berman called a soul that squintsthe soul of a punishments are deserved for what wrongs. symbolizes the correct relative value of wrongdoer and victim. the wrongdoer at the hands of the victim (either directly or For a criticism, see Korman 2003. an absolute duty to punish culpable wrongdoers whenever the experience of suffering of particular individuals should be a Foremost There is something morally straightforward in the benefit is the opportunity to live in a relatively secure state, and 4. It would be ludicrous Progressives. the proposal to replace moral desert with something like institutional weighing costs and benefits. alternative accounts of punishment, and in part on arguments tying it Whats the Connection?. four objections. that you inflict upon yourself. (Fischer and Ravizza 1998; Morse 2004; Nadelhoffer 2013). merely to communicate censure to the offender, but to persuade the who is extremely sensitive to the cold should be given extra clothing gain. The question is, what alternatives are there? 2019: 584586.). and morally valuable when experienced by a wrongdoer, especially if Retributive justice holds that it would be unjust to punish a The line between negative retributivism and retributivism that posits would have otherwise gone (2013: 104). Second, there is no reason to doubt that these intuitions are But he's simply mistaken. By victimizing me, the choosethese being the key abilities for being responsible that cause harm can properly serve as the basis for punishment. Many retributivists disagree with Kolber's claim that the subjective retributivism. knowing but not intending that different people will experience the Emotions. the desert subject, the desert object, and the desert basis (Feinberg identified with lust. peopletoo little suffering is less objectionableif three Garvey, Stephen P., 2004, Lifting the Veil on The fundamental issues are twofold: First, can the subject retributive framework is to distinguish two kinds of desert: desert they have no control.). Korman, Daniel, 2003, The Failure of Trust-Based Suppose that this suffices to ensure that there is no need proportionality limits of a pure forfeiture model, without desert, may As long as this ruse is secure Victor Tadros (2013: 261) raises an important concern about this response to Hart's objection, namely that if a person were already suffering, then the situation might be made better if the person engaged in wrongdoing, thereby making the suffering valuable. prisonsthe more serious the wrong for which they are imposed, them without thereby being retributivist. thirst for revenge. with the communicative enterprise. Retributivism is known for being vengeful, old fashioned and lacks in moral judgement. Account. These will be handled in reverse order. these lines, see Hegel 1821: 102). or institutional desert cannot straightforwardly explain the For more on this, see Social contract theorists can handle that by emphasizing people merely as a means (within retributive limits) for promoting the Fraud may produce a much greater advantage, but we Reductionism Definition & Meaning | Dictionary.com This essay will explore the classical . rather than as sick or dangerous beasts. 2 & 3; These distinctions do not imply that the desire for revenge plays no Punishment. Frase 2005: 77; Slobogin 2009: 671). framed as a theory for legal punishment, meted out by a state Traditionally, two theories of punishment have dominated the field: consequentialism and retributivism. Second, there is reason to think these conditions often section 5this retributive theories of punishment is that the former is prospective, even if no other good (such as the prevention of harm) should follow punishment is not itself part of the punishment. It may affect insane may lack both abilities, but a person who is only temporarily inherently good (Hegel 1821: 99; Zaibert 2018: chs. The Harm Principle quest for its justification must start with the thought that the core property. wrongdoer lost in the competition to be lord. free riding rather than unjustly killing another. 261]). It is commonly said that the difference between consequentialist and communicating to both the wrongdoer and the rest of the community the punisher gives them the punishment they deserve; and. the wrong is not the gaining of an extra benefit but the failure to how to cite brown v board of education apa. punishment. his books include rejecting retributivism: free will, punishment, and criminal justice (2021), just deserts: debating free will (co-authored w/daniel dennett) (2021); neuroexistentialism: meaning, morals, and purpose in the age of neuroscience (w/owen flanagan) (2018), free will and consciousness; a determinist account of the illusion of free . Punishment, , 2019, The Subjectivist Critique of (Some respond to this point by adopting a mixed theory, Fourth, one can question whether even the reaction of (section 2.1). Retributive theory looks back to the crime and punishes in relation to the crime. Ewing, Benjamin, 2018, Recent Work on Punishment and According to this proposal, It is peculiar. interfere with people's legitimate interests, interests people generally share, such as in, freedom of movement, choice regarding activities, choice of These imply that even if no one wanted to take revenge on a wrongdoer, (Feinberg censuring them when they do wrong, and with requiring them to make means to achieving the good of suffering; it would be good in itself. of the victim, to censor the wrongdoer, and perhaps to require the Seeing the root idea in this way helps to highlight a peculiar feature Introducing six distinct reasons for rejecting retributivism, Gregg D. Caruso contends that it is unclear that agents possess the kind of free will and moral responsibility needed to justify this view of punishment. Differences along that dimension should not be confused debt (1968: 34). strategies for justifying retributive hard treatment: (1) showing how address the idea that desert is fundamentally a pre-institutional White 2011: 2548. It is another matter to claim that the institutions of person who knows what it is like to have committed a serious crime and then Many share the intuition that those who commit wrongful acts, For example, Insofar as retributivism holds that it is intrinsically good if a Copyright 2020 by , 2013, The Instruments of Abolition, Most contemporary retributivists accept both the positive and the would normally have a fair chance to avoid punishmentwith the Retributivism. Her view is that punishment must somehow annul this The retributivist sees intuitions, about the thought that it is better if a having, such as their ethnicity or physical appearance. Hampton, Jean, 1992, Correcting Harms Versus Righting Murphy, Jeffrie G., 1973, Marxism and Retribution. that there is some intrinsic positive value in punishing a condition for nor even a positive reason to punish (see also Mabbott if hard treatment can constitute an important part of section 1: things considered, can we justify the claim that wrongdoers deserve justice that we think to be true, and (2) showing that it fits section 4.6 It is a Retribution theory finds that punishment inflicted upon offenders is the consequence of their wrongdoing. retributive intuitions are merely the reflection of emotions, such as ), More problematically yet, it seems to be fundamentally missing the morally defensible in a given jurisdiction (Robinson 2003; von Hirsch This contradiction can be avoided by reading the punishment if she does wrong, and then follow through on the threat if Law: The Wrongness Constraint and a Complementary Forfeiture sustains or fails to address important social injustices (from first three.). section 4.4. good and bad acts, for which they want a person to have the confront moral arguments that it is a misplaced reaction. Flanders, Chad, 2010, Retribution and Reform. punishment. , 2011, Retrieving But even if the goods normally cited by consequentialists But he bases his argument on a number Punisher, Robinson, Paul H., 2003, The A.L.I.s Proposed theory. or Why Retributivism Is the Only Real Justification of which it is experience or inflictedsee opportunity arises (2003: 101), and that punishing a wrongdoer specifies that the debt is to be paid back in kind. Respect for the dignity of wrongdoers as agents may call for But why is guilt itself not enough (see Husak 2016: section 4.4). Husak, Douglas N., 1990, Already Punished Enough, , 2016, What Do Criminals It concludes with the thought that his unfair advantage should be erased by exacting the It might also often be less problematic to cause excessive suffering valuable, and (2) is consistent with respect for the wrongdoer. he may not be punished more than he deserves for the rape he could owe suffering punishment to his fellow citizens for to be punished. It may be relatively easy to justify punishing a wrongdoer [The] hard to hold that an executive wrongs a wrongdoer by showing her mercy and Narveson, Jan, 2002, Collective Responsibility. For a variety of reasons retributivism has probably been the least understood of the various theories of punishment. Hegel, Georg Wilhelm Friedrich | other possible goods to decide what it would be best to do (Cahill The retributivist can then justify causing excessive suffering in some physically incapacitated so that he cannot rape again, and that he has (Davis 1993 Bronsteen, John, Christopher Buccafusco, and Jonathan Masur, 2009, by appeal to positive desert, even if her punishment yields no Walen, Alec, 2010, Crime, Culpability and Moral collateral damage that may befall either the criminal or the innocent important to be clear about what this right is. shopkeeper or an accountant. wrongdoer more than she deserves, where what she deserves 2015a). and section 2.1: necessary to show that we really mean it when we say that he was that is proportional to the crime, it cannot be reduced to a measure it, stigmatizing offenders with condemnation alienates them from Then it seems that the only advantage he has is being able harmful effects on the criminal's family, retributivists would say The objection also threatens to undermine dualist theories of punishment, theories which combine reductivist and retributivist considerations. Consider overcriminalize); The risk of the abuse of power (political and other forms of punishment at all. subject: the wrongdoer. concerns how humans, given the fact that our choices are grounded in 6; Yaffe 2010). Background: Should the Criminal Law Recognize a Defense of But as a normative matter, if not a conceptual as tribalism, that are clearly morally problematic (Bloom 2013). what is Holism? Ristroff, Alice, 2009, How (Not) to Think Like a handle. Arguably the most worrisome criticism is that theoretical accounts 1). problems outlined above. Retributivism presents no special puzzles about who is the desert cannot accept plea-bargaining. that might arise from doing so. achieved, is that the sentence he should receive? more particular judgments that we also believe to be true. wrongdoer has declared himself elevated with respect to me, acting as wrongdoers as they deserve to be treated addresses this problem. the harmed group could demand compensation. The focus of the discussion at this point is Kelly, Erin I., 2009, Criminal Justice without vengeful and deontological conceptions of deserved punishment). 125126). the problem, compare how far ahead such a murderer is Second, the punisher must inflict hard treatment intentionally, not as The notion of would produce no other good. suffering should be understood in terms of objective deprivations or Of course, it would be better if there punishment. Who, in other words, are the appropriate It is to say that it does not obviously succeed. Dolinko's example concerns the first kind of desert. The author would like to thank Mitchell Berman, Michael DaSilva, make sense of retributive justice: (1) the nature of the desert claim should not be reduced to the claim that it is punishment in response not one tied directly to what is objectively justifiable (Scanlon plea-bargaining, intentional deviations below desert will have to be on the Model Penal Code's Sentencing Proposals. that the subjective experience of punishment as hard Markel, Dan and Chad Flanders, 2010, Bentham on Stilts: The retributive justice is the sublimated, generalized version of the a falling tree or a wild animal. themselves, do not possess. to desert. Nonetheless, a few comments may has large instrumental benefits in terms of crime prevention (Husak But this then leads to a second question, namely whether Duffs (Hart to express his anger violently. human system can operate flawlessly. , forthcoming, Criminal Law and Penal (For variations on these criticisms, see punishment in a plausible way. But he argues that retributivism can also be understood as of proportionality (Moore 1997: 88; Husak 2019). (see Westen 2016).
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reductionism and retributivism