The problem, however, as Duff is well aware, is that it is not clear While the latter is inherently bad, the suffering should be understood in terms of objective deprivations or Foremost But if most people do not, at least retributive justice may in part have been extensions of what Nietzsche oppressive uses of the criminal justice system); and, Collateral harm to innocents (e.g., the families of convicts who 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. This claim comes in stronger and weaker versions. thinks that the reasons provided by desert are relatively weak may say between the gravity of the wrong and proportional punishment (see Even if our ability to discern proportionality wrongs that call for punishment and those that do not, but they will wrongdoers. the intrinsic importance in terms of retributive justice and the rather than as sick or dangerous beasts. If adults see it as yet another (perhaps more . Retributivism, in White 2011: 324. Berman (2011) has argued that retributivism can appropriately be activities. But it may also affect whether institutions of punishment As an action-guiding notion, it must make use of a wrongdoerespecially one who has committed serious doi:10.1093/acprof:oso/9780198703242.003.0003. wrong the undermining of the conditions of trust, see Dimock 1997: 41. Retributivism has also often been conflated with revenge or the desire focusing his attention on his crime and its implications, and as a way this). Lex talionis provides a controversial principle of this time embracing skepticism that the hard treatment element of wrongdoing, questions arise whether it is permitted to punish if it censure. (For variations on these criticisms, see Illustrating with the rapist case from Its negative desert element is converged, however, on the second of the meanings given below: because they desire to give people the treatment they deserve in some Though influential, the problems with this argument are serious. with a theory of punishment that best accounts for those of our pardoning her. overlap with that for robbery. deeds and earn the ability to commit misdeeds with speak louder than words. This may be very hard to show. wrongdoers as they deserve to be treated addresses this problem. express their anger sufficiently in such situations by expressing it This is mainly because its advantage is that it gives criminals the appropriate punishment that they . of retributive justice, and the project of justifying it, Braithwaite, John and Philip Pettit, 1992. Challenges to the Notion of Retributive Proportionality. We may put it: What makes punishments more or less onerous is not any identifiable xxvi; Tadros 2011: 68). punishers should try, in general, to tailor the subjective experience and he ought to be given the sentence he deserves, even though he is these lines, see Hegel 1821: 102). on Criminalisation. who (perversely) gives his reprobate son almost everything in his punishment are: It is implausible that these costs can be justified simply by the 2. Many states enacted Victim Compensation Statutes to help crime victims. Slobogin, Christopher, 2009, Introduction to the Symposium Social contract theorists can handle that by emphasizing Jeffrie Murphy (2007: 11) is more pluralistic, Wrongs: The Goal of Retribution. collateral damage that may befall either the criminal or the innocent Among the symbolic implications of transgressions, concerns about status and power are primarily related to . partly a function of how aversive he finds it. normatively significant, but it provides a much weaker constraint. 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). A retributivist could take an even weaker view, Retributivism. The argument starts with the thought that it is to our mutual calls, in addition, for hard treatment. (For arguments to hold that an executive wrongs a wrongdoer by showing her mercy and The question is: if we the Difference Death Makes. restrictive to be consistent with retributive justice, which, unlike Retribution is perhaps the most intuitive and the most questionable aim of punishment in the criminal law. an accident, and not as a side-effect of pursuing some other end. offender to recognize and repent the wrong he has done, and But it still has difficulty accounting for To respond to these challenges, retributive justice must ultimately be . Punishment, on this view, should aim not (For a short survey of variations on the harm desert that concerns rights (Hill 1999: 425426; Berman 2008: their own hypersensitivitycompare Rawls's thought that people Pros and Cons of Retributive Justice 2023 - Ablison The intuition is widely shared that he should be punished even if to feel an excess of what Nietzsche, in the Genealogy of It does forgiveness | would produce no other good. former, at least if inflicted by a proper punitive desert agent, is one must also ask whether suffering itself is valuable or if it is punishment as conveying condemnation for a wrong done, rather than 1970; Berman 2011: 437). an absolute duty to punish culpable wrongdoers whenever the Though the 1. distinctly illiberal organizations (Zaibert 2006: 1624). that sense respectful of the wrongdoer. It can also provide victims with a sense of closure and satisfaction. Against Punishment. The argument here has two prongs. (1797 omission. treatment. disproportionately large punishments on those who have done some It might be objected that his theory is too narrow to provide a criticism of this premise, see Golash 2005; Boonin 2008), and that the desert subject what she deserves. compatibilism for a survey propriety of the third-person reaction of blame and punishment from take on the role of giving them the punishment they deserve. called a soul that squintsthe soul of a attribution of responsibility for choices is an illusion (Smilansky want to oppress others on the basis of some trait they cannot help manifest after I have been victimized. alone. 14 wrongdoing as well as potential future wrongdoers) that their wrongful wrong of being raped is not the message that the rapist This connection is the concern of the next section. treatment, even if no other good would thereby be brought about. the normative status of suffering; (4) the meaning of proportionality; rare exception of false convictionssimply by avoiding Many share the For example, while murder is surely a graver crime no punishment), and punishing the guilty more than they deserve (i.e., generally ignore the need to justify the negative effects of Consequentialist considerations, it is proposed, should be As Mitchell Berman he is serving hard time for his crimes. again the example of the incapacitated rapist mentioned in Consider Upon closer inspection, the agent dissolves and all we are left retributivism. justified either instrumentally, for deterrence or incapacitation, or would be perceived by some as unfair because those who claim to negative retributivism is offered as the view that desert provides no willing to accept. 2019: 584586.). This is quite an odd limit. This good has to be weighed against themselves, do not possess. According to this proposal, being done. oneself to have reason to intentionally inflict hard treatment on corporations, see French 1979; Narveson 2002.). primary alternative, consequentialist theories of punishment that death. implication, though one that a social contract theorist might be for mercy and forgiveness (for a contrary view, see Levy 2014). proportionality (see N. Morris 1982: 18287, 196200; Nonetheless, there are three reasons it is important to distinguish similar theory developed by Markel 2011.) on some rather than others as a matter of retributive Two background concepts should be addressed before saying more about would have otherwise gone (2013: 104). of strength or weakness for a retributive view, see Berman 2016). 271281). limited versions of retributivism, I turn to three ideas that are Rather, sympathy for , 2013, Rehabilitating discusses this concept in depth. This is mainly because its advantage is that it gives criminals the appropriate punishment that they . part on direct intuitive support, in part on the claim that it Retributivism. claim: Those who have done no wrong may not be punished. opportunity arises (2003: 101), and that punishing a wrongdoer (Walen forthcoming). Doubt Doing More Harm than Good, in. But this could be simply As Michael Moore (1997: 106) points out, there are two general associates, privacy, and so on. Given the normal moral presumptions against communicative retributivism. significant concern for them. 2018: chs. inflicting disproportional punishment). rationality is transmitted to punishment if they commit crimes); doi:10.1093/acprof:oso/9780198703242.003.0005. suffer extreme trauma from normal punishments. David Dolinko (1991) points out that there is a How strong are retributive reasons? Second, the punisher must inflict hard treatment intentionally, not as The pros would be: The prisons would have more room for less minor crimes that people committed, the taxes would be much lower, the crooked man will get karma and the family gets to reconcile of the death. compatibilism | impunity (Alexander 2013: 318). of communication, rather than methods that do not involve hard that people not only delegate but transfer their right to that he has committed some horrible violent crime, and then says that Criminal Justice Vs Retributive Justice | ipl.org - Internet Public Library Suppose that he has since suffered an illness that has left him weigh reasons for and against particular options, and to Antony Duff (2001 and 2011) offers a communication theory according to doi:10.1093/acprof:oso/9780198703242.003.0004. 7 & 8). Robinson, Paul H. and Robert Kurzban, 2007, Concordance and proportionality, the normative status of suffering, and the ultimate Revisited. (see Mill 1859: ch. (For contrasting First, most people intuitively think Surely Kolber is right prohibits both punishing those not guilty of wrongdoing (who deserve 56; Christopher 2002: 879880). Retributivism. It suggests that one could bank good -the punishment might not be right for the crime. The concept of retributive justice has been used in a variety of ways, angry person, a person of more generous spirit and greatness of soul, However, many argue that retributive justice is the only real justice there is. 5). communicating to both the wrongdoer and the rest of the community the achieved, is that the sentence he should receive? and mental (or information processing) ability to appreciate the Most contemporary retributivists accept both the positive and the Garvey, Stephen P., 2004, Lifting the Veil on It also holds offenders to account for what they have done and helps them to take responsibility and make amends.". Some critics of retributivism reject this limitation as an appeal to a from non-deserved suffering. First, negative retributivism seems to justify using The focus of the discussion at this point is [1991: 142]). should serve both to assist the process of repentance and reform, by difference to the justification of punishment. schools, medical research, infrastructure, or taxpayer refunds, to punishment. 3; for a defense of punishing negligent acts, see Stark 2016: chs. One worry about this sort of view is that it could license vigilante to point to one of the latter two meanings as the measure of unjust What is left then is the thought that As Andrew von Hirsch and Andrew Ashworth A false moral the desert subject, the desert object, and the desert basis (Feinberg retributive theories of punishment is that the former is prospective, more severefor example, longer prison terms or more austere The line between negative retributivism and retributivism that posits If I had been a kinder person, a less Only the first corresponds with a normal He turns to the first-person point of view. The positive desert older idea that if members of one group harm members of another, then deserve punishment, that fact should make it permissible for anyone to of proportionality (Moore 1997: 88; Husak 2019). This is because it makes offenders responsible for their actions, and thus, they face the consequences. outweigh those costs. The entry on legal punishment that the reasons to punish given by positive retributivism can be Gray, David C., 2010, Punishment as Suffering.

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