Retributivism and trust

Law and Philosophy

Volumn 16, Issue 1, 1997, Pages 37-62

  Dimock, Susan ^a  

^a UNIVERSITY OF YORK   (United Kingdom)

Author keywords

[No Author keywords available]

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EID: 0031500097     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.2307/3504818     Document Type: Article

References (35)

1. Joel Feinberg, "The Classic Debate", The Philosophy of Law 4th Edition, eds, Joel Feinberg and Hyman Gross (Belmont, California; Wadsworth Publishing Co., 1991).
2. Cf. Roger Shiner, Norm and Nature (Clarendon Press, 1992), Chapter 4.
3. Cf. Joseph Raz, The Authority of Law (Clarendon Press, 1979), Chapter 9.
4. I am grateful to Nathan Brett for helpful discussions about the nature of punishment.
5. John Cottingham, "Varieties of Retribution", Philosophical Quarterly 29, 1979.
6. Mark A. Michael, "Utilitarianism and Retributivism: What's the Difference?", American Philosophical Quarterly 29 (1992): 2.
7. Herbert Morris, "Persons and Punishment", The Monist 52, 1968; Jeffrie Murphy, "Marxism and Retributivism", Philosophy and Public Affairs 2, 1973; Michael Davis, "How to Make Punishment Fit the Crime", Ethics 93 (1983) and To Make the Punishment Fit the Crime (Westview Press, 1992); Jean Hampton, "An Expressive Theory of Retribution", Retribution and its Critics, ed. Wesley Cragg (Franz Steiner Verlag Stuttgart, 1992) and "A New Theory of Retribution", Liability and Responsibility, eds. R.G. Frey and C.W. Morris (Cambridge University Press, 1991).
8. Herbert Morris, "Persons and Punishment", The Monist 52, 1968; Jeffrie Murphy, "Marxism and Retributivism", Philosophy and Public Affairs 2, 1973; Michael Davis, "How to Make Punishment Fit the Crime", Ethics 93 (1983) and To Make the Punishment Fit the Crime (Westview Press, 1992); Jean Hampton, "An Expressive Theory of Retribution", Retribution and its Critics, ed. Wesley Cragg (Franz Steiner Verlag Stuttgart, 1992) and "A New Theory of Retribution", Liability and Responsibility, eds. R.G. Frey and C.W. Morris (Cambridge University Press, 1991).
9. Herbert Morris, "Persons and Punishment", The Monist 52, 1968; Jeffrie Murphy, "Marxism and Retributivism", Philosophy and Public Affairs 2, 1973; Michael Davis, "How to Make Punishment Fit the Crime", Ethics 93 (1983) and To Make the Punishment Fit the Crime (Westview Press, 1992); Jean Hampton, "An Expressive Theory of Retribution", Retribution and its Critics, ed. Wesley Cragg (Franz Steiner Verlag Stuttgart, 1992) and "A New Theory of Retribution", Liability and Responsibility, eds. R.G. Frey and C.W. Morris (Cambridge University Press, 1991).
10. Herbert Morris, "Persons and Punishment", The Monist 52, 1968; Jeffrie Murphy, "Marxism and Retributivism", Philosophy and Public Affairs 2, 1973; Michael Davis, "How to Make Punishment Fit the Crime", Ethics 93 (1983) and To Make the Punishment Fit the Crime (Westview Press, 1992); Jean Hampton, "An Expressive Theory of Retribution", Retribution and its Critics, ed. Wesley Cragg (Franz Steiner Verlag Stuttgart, 1992) and "A New Theory of Retribution", Liability and Responsibility, eds. R.G. Frey and C.W. Morris (Cambridge University Press, 1991).
11. Herbert Morris, "Persons and Punishment", The Monist 52, 1968; Jeffrie Murphy, "Marxism and Retributivism", Philosophy and Public Affairs 2, 1973; Michael Davis, "How to Make Punishment Fit the Crime", Ethics 93 (1983) and To Make the Punishment Fit the Crime (Westview Press, 1992); Jean Hampton, "An Expressive Theory of Retribution", Retribution and its Critics, ed. Wesley Cragg (Franz Steiner Verlag Stuttgart, 1992) and "A New Theory of Retribution", Liability and Responsibility, eds. R.G. Frey and C.W. Morris (Cambridge University Press, 1991).
12. Herbert Morris, "Persons and Punishment", The Monist 52, 1968; Jeffrie Murphy, "Marxism and Retributivism", Philosophy and Public Affairs 2, 1973; Michael Davis, "How to Make Punishment Fit the Crime", Ethics 93 (1983) and To Make the Punishment Fit the Crime (Westview Press, 1992); Jean Hampton, "An Expressive Theory of Retribution", Retribution and its Critics, ed. Wesley Cragg (Franz Steiner Verlag Stuttgart, 1992) and "A New Theory of Retribution", Liability and Responsibility, eds. R.G. Frey and C.W. Morris (Cambridge University Press, 1991).
13. This is not to deny that this description of retributive theories generates some classificatory difficulties. R.A. Duff, for example, has developed a theory of punishment which holds that punishment is justified just in case it aims at the moral reform of the criminal. The goal of moral reform is thought to be internally, non-contingently and non-causally related to punishment, moreover, and so Duff's account might qualify as a retributive theory on Michael's model; yet Duff insists that his is not a retributivist theory. Cf. R.A. Duff, Trials and Punishments (Cambridge University Press, 1986).
14. J.L. Mackie, "Retribution: A Test Case for Ethical Objectivity", Philosophy of Law 4th Edition, pp. 678-679.
15. H.L.A. Hart, "Prolegomenon to the Principles of Punishment", Proceedings of the Aristotelian Society Suppl. 1960, 2(a).
16. Cf. Ted Honderich, Punishment: and its supposed justifications (Pelican Books, 1984). The use and misuse of definitions in the discussion of retributivism, and the relevance of definitions to theories of justification, have been widely discussed. Cf. Anthony Quinton, "On Punishment", Analysis 14: 6 (1954); Antony Flew, "The Justification of Punishment", Journal of Philosophy 29: 3 (1954); K.G. Armstrong, "The Retributivist Hits Back", Mind (1961).
17. Cf. Ted Honderich, Punishment: and its supposed justifications (Pelican Books, 1984). The use and misuse of definitions in the discussion of retributivism, and the relevance of definitions to theories of justification, have been widely discussed. Cf. Anthony Quinton, "On Punishment", Analysis 14: 6 (1954); Antony Flew, "The Justification of Punishment", Journal of Philosophy 29: 3 (1954); K.G. Armstrong, "The Retributivist Hits Back", Mind (1961).
18. Cf. Ted Honderich, Punishment: and its supposed justifications (Pelican Books, 1984). The use and misuse of definitions in the discussion of retributivism, and the relevance of definitions to theories of justification, have been widely discussed. Cf. Anthony Quinton, "On Punishment", Analysis 14: 6 (1954); Antony Flew, "The Justification of Punishment", Journal of Philosophy 29: 3 (1954); K.G. Armstrong, "The Retributivist Hits Back", Mind (1961).
19. Cf. Ted Honderich, Punishment: and its supposed justifications (Pelican Books, 1984). The use and misuse of definitions in the discussion of retributivism, and the relevance of definitions to theories of justification, have been widely discussed. Cf. Anthony Quinton, "On Punishment", Analysis 14: 6 (1954); Antony Flew, "The Justification of Punishment", Journal of Philosophy 29: 3 (1954); K.G. Armstrong, "The Retributivist Hits Back", Mind (1961).
20. Thomas Hobbes, Leviathan, ed. C.B. MacPherson (Penguin Books, 1968), Chapter 13.
21. David Hume, A Treatise of Human Nature 2nd Edition, ed. L.A. Selby-Bigge (Oxford: Clarendon Press, 1978), Book III, Part II, Section II.
22. The literature here is vast, and sufficiently well-known that a comprehensive bibliographical reference is not required. I have been especially influenced by the work of David Gauthier: Morals by Agreement (Oxford: Clarendon Press, 1986) and Moral Dealing (Cornell University Press, 1990). Cf. the collection of essays in Rationality in Action, ed. Paul K. Moser (Cambridge University Press, 1990).
23. The literature here is vast, and sufficiently well-known that a comprehensive bibliographical reference is not required. I have been especially influenced by the work of David Gauthier: Morals by Agreement (Oxford: Clarendon Press, 1986) and Moral Dealing (Cornell University Press, 1990). Cf. the collection of essays in Rationality in Action, ed. Paul K. Moser (Cambridge University Press, 1990).
24. The literature here is vast, and sufficiently well-known that a comprehensive bibliographical reference is not required. I have been especially influenced by the work of David Gauthier: Morals by Agreement (Oxford: Clarendon Press, 1986) and Moral Dealing (Cornell University Press, 1990). Cf. the collection of essays in Rationality in Action, ed. Paul K. Moser (Cambridge University Press, 1990).
25. The only defense of punishment grounded explicitly in trust that I am aware of in the literature is David Hoekema's "Trust and Obey: Toward a New Theory of Punishment", Israel Law Review Vol. 25, Nos. 3-4, 1991. Hoekema concentrates only on the subjective conditions of trust, however, and so I think his project is implausible.
26. Cf. Annette Baier, "Trust and Antitrust", Ethics 96: 2 (1986). Baier has recently collected a number of her essays on trust (among other topics) in Moral Prejudices: Essays on Ethics (Harvard University Press, 1994).
27. Cf. Annette Baier, "Trust and Antitrust", Ethics 96: 2 (1986). Baier has recently collected a number of her essays on trust (among other topics) in Moral Prejudices: Essays on Ethics (Harvard University Press, 1994).
28. have benefitted enormously from reading Baier's work on trust, and I borrow freely from her in what follows, both in terminology and in content. I doubt that Baier would agree with much of what I say in this paper, however. I have also benefitted from reading the essays collected by Diego Gambetta in Trust: Making and Breaking Cooperative Relations (New York; Basil Blackwell, 1988). My debt to the authors in the Gambetta volume will not be quite so obvious as that I owe to Baier in what follows.
29. Cf. Annette Baier, "Trust and Its Vulnerabilities", in Baier 1994.
30. This may seem too strong, for counter-examples come readily to mind: abused wives often stay with their abusive husbands, for example, indicating that some relationships can withstand substantial trust violations. I suspect, though, that such cases are explainable as cases in which the abused (and the abuser) believes that it is lack of ability (self-control, etc.) that leads to the abuse, rather than a genuine conflict of interests or lack of concern. Such cases, involving as they do short-comings at the level of exercising discretionary power properly, may seem not to warrant complete withdrawal of trust. These cases differ from those in which the abuser's actions are motivated by lack of concern and affection for the abused, or by interests which genuinely conflict with those of the abused. In the latter sorts of situations, the relationship simply cannot be maintained in most cases. This all points to two important things. First, because subjective trust is often maintained even when it is clearly not reasonable, subjective trust cannot be used to ground the defense of punishment being offered here. Second, the differing responses to these cases is reflected in different aspects of enforcement as it is actually practised. What Wesley Cragg calls the "enabling" function of enforce-ment, which is designed to enable those who might not otherwise be able to obey the law to do so, is an important part of policing; this is appropriate when lack of control and ability are at issue. Cf. Wesley Cragg, The Practice of Punishment: Towards a theory of restorative justice (Routledge, 1992). Such a response may be inadequate in cases of genuine conflict of interests, however.
31. For an excellent selection of essays that explore many alternatives to incarceration see A Reader on Punishment, eds. Antony Duff and David Garland (Oxford University Press, 1994).
32. Duff, Trials and Punishment, 7.3.
33. Cf. Michael Davis, "Why Attempts Deserve Less Punishment than Complete Crimes", Law and Philosophy 5 (1986).
34. H.L.A. Hart, "Legal Responsibility and Excuses", Punishment and Responsibility (Oxford: Clarendon Press, 1968).
35. Hyman Gross, A Theory of Criminal Justice (Oxford University Press, 1979).