Punishment and justification

Ethics

Volumn 118, Issue 2, 2008, Pages 258-290

  Berman, Mitchell N ^a  

^a UNIVERSITY OF TEXAS AT AUSTIN   (United States)

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EID: 42949177470     PISSN: 00141704     EISSN: None     Source Type: Journal    
DOI: 10.1086/527424     Document Type: Review

References (69)

1. Many scholars have described retributivism as the dominant theory of punishment today. See, generally, Russell L. Christopher, "Deterring Retributivism: The Injustice of 'Just' Punishment," Northwestern University Law Review 96 (2002): 843-976, 845-47 and nn. 2-12 (collecting citations to works proclaiming a retributivist renaissance). But, as these declarations usually preface scathing critique, I doubt that pure retributivism enjoys so much support.
2. See also, e.g., Douglas N. Husak, "Why Punish the Deserving?" Noûs 26 (1992): 447-64, 452 ("Almost all philosophers appreciate the need to construct hybrid syntheses of retributive and consequentialist elements").
3. John Rawls, "Two Concepts of Rules," Philosophical Review 64 (1955): 3-32.
4. H. L. A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law (Oxford: Oxford University Press, 1968), 8-12.
5. J. L. Mackie, "Morality and the Retributive Emotions," Criminal Justice Ethics 1 (1982): 3-10, 3.
6. R. A. Duff, Punishment, Communication, and Community (Oxford: Oxford University Press 2001), 11.
7. See David Wood, "Retribution, Crime Reduction and the Justification of Punishment," Oxford Journal of Legal Studies 22 (2002): 301-21.
8. For the term 'integrated dualism' and the conclusion that it is conceptually unobtainable, see ibid., 316-17.
9. Although the account is dualist, the elements likely to prove most interesting and contentious arise in support of the role I assign retributivism. So the argument can also be viewed as a partial rehabilitation of retributivism.
10. John Kleinig, Punishment and Desert (The Hague: Martinus Nijhoff, 1973), chap. 1, is a notable exception. As he put it, to say that punishment stands in need of justification "is not to say anything very helpful, without first saying something about the notion of justification to see what it is, precisely, that punishment is said to be in need of" (ibid., 1).
11. Hart, Punishment and Responsibility, 72.
12. Ted Honderich, Punishment: The Supposed Justifications (London: Hutchinson, 1969), 6 n. 4 (citing several of the best known attempts at definition).
13. Duff, Punishment, Communication, and Community, xiv-xv.
14. For distinctions broadly along these lines see, e.g., C. L. Ten, Crime, Guilt, and Punishment (New York: Clarendon, 1987), 2;
15. and D. J. Galligan, "The Return to Retribution in Penal Theory," in Crime, Proof and Punishment, ed. C. F. H. Tapper (London: Butterworths, 1981), 144-71, 152 n. 3.
16. p. But see n. 51 below (problematizing this straightforward carving between peripheral and degenerate cases).
17. To be sure, the same two points - general deterrence and incapacitation - could be made about degenerate cases as well, but few consequentialists are willing to bite that bullet; by whatever means, they strive to establish that degenerate cases are not justifiable.
18. Joseph Raz, Practical Reason and Norms, 2nd ed. (Princeton, NJ: Princeton University Press, 1990), 27.
19. Hart, Punishment and Responsibility, 2 n. 3.
20. Claire Finkelstein, "Positivism and the Notion of an Offense," California Law Review 88 (2000): 335-94, 358. Passages from other philosophers to the same effect can be multiplied almost without end.
21. R. W. Burgh, "Do the Guilty Deserve Punishment?" Journal of Philosophy 79 (1982): 193-210, 193.
22. See, e.g., Finkelstein, "Positivism and the Notion of an Offense," 358; and Nicola Lacey, State Punishment: Political Principles and Community Values (London: Routledge, 1988), 14. Unfortunately, John Kleinig - the theorist who best understood that those who would speak intelligently about justifications for punishment need first seek to understand the nature of justifications - seemed to make this same assumption. "Impositions require justification since they constitute breaches of a basic moral right to be free from such things," he wrote. But this "does not mean that it cannot be overridden in any circumstances" (Kleinig, Punishment and Desert, 65). That he thought punishment must be justified by override is not surprising, however, given his mistaken view (mistaken because seeming to overlook that justification can be accomplished by cancellation) that "demands for justification are demands for reasons" (ibid., 2).
23. As John Cottingham ("Varieties of Retribution," Philosophical Quarterly 29 [1979]: 238-46) demonstrates, desert has not always been central to views classified as retributivist. But the centrality of desert to contemporary retributivism is widely accepted.
24. See, e.g., Mirko Bagaric and Kumar Amaraskara, "The Errors of Retributivism," Melbourne University Law Review 24 (2000): 124-89, 127 (citing commentators).
25. An exception that does recognize the difference (and argues for the former) is Douglas N. Husak, "Retribution in Criminal Theory," San Diego Law Review 37 (2000): 959-86, 972-73.
26. See Gertrude Ezorsky, "The Ethics of Punishment," in Philosophical Perspectives on Punishment, ed. Gertrude Ezorsky (Albany, NY: SUNY Press, 1972), xi-xxvii, xxii-xxvii;
27. see also W. D. Ross, The Right and the Good (1930), reprinted with an introduction by Phillip Stratton-Lake (Oxford: Oxford University Press, 2002), 58-59 (anticipating this objection).
28. See, e.g., Lawrence H. Davis, "They Deserve to Suffer," Analysis 32 (1972): 136-40, 136;
29. Michael S. Moore, "Justifying Retributivism," Israel Law Review 27 (1993): 15-49, 19-20;
30. and Thomas Hurka, "The Common Structure of Virtue and Desert," Ethics 112 (2001): 6-31.
31. Kleinig, Punishment and Desert, 67.
32. Michael S. Moore, "The Moral Worth of Retribution," in Responsibility, Character, and the Emotions: New Essays in Moral Psychology, ed. Ferdinand Schoeman (New York: Cambridge University Press, 1987), 179-219.
33. Jeremy Bentham, The Principles of Morals and Legislation (1789; reprint, Oxford: Clarendon, 1907), 4.
34. Herbert Fingarette, "Punishment and Suffering," Proceedings and Addresses of the American Philosophical Association 50 (1977): 499-525, 503.
35. Ibid., 513.
36. I am speaking of intrinsic goods supposed to be ultimate. One can rationally justify an intrinsic non-ultimate good by showing how it is a constituent component of another intrinsic good, not as a means to its attainment. (I am grateful to Les Green for this point.)
37. See, e.g., William Frankena, Ethics, 2nd ed. (Englewood Cliffs, NJ: Prentice-Hall, 1973), 87-88.
38. That such an appeal is unavoidable does not mean that we can do nothing more than argue about brute intuitions. Think, e.g., of Thomas Hurka's elegant demonstration of the respect in which desert and virtue share a formal or mathematical structure. Still, even Hurka cautions against exaggerating the significance of hismodeling, acknowledging that if we accept desert "it will be primarily on the basis of substantive judgments" about the superiority, as against an otherwise identical world, of a world in which the vicious suffer (Hurka, "The Common Structure of Virtue and Desert," 31).
39. Davis, "They Deserve to Suffer," 139.
40. This is not a challenge that I can meet adequately in this space. But I believe that determinism presents a challenge not only for any retributivist response to Jn(P) but - more fundamentally - even to Jn(P) itself. That is because, in my view, determinism threatens not only judgments of responsibility, blameworthiness, or desert but all normative judgments on the ground that the forward-looking judgment "ought to" implies the cogency of the corresponding backward-looking judgment "ought to have." If so, then to the extent that determinism threatens the latter, it threatens the former too. Relatedly, but more generally, given the dialectical structure of demanding and furnishing justification, a justification for punishment need have no "greater," more secure, or more objective metaethical status than does the demand basis to which it responds.
41. David Dolinko, "Some Thoughts about Retributivism," Ethics 101 (1991): 537-59, 558. Others who endorse this objection are cited in Christopher, "Deterring Retributivism," 861 n. 85.
42. See, e.g., Husak, "Why Punish the Deserving?"
43. See, e.g., Burgh, "Do the Guilty Deserve Punishment?" 198;
44. and Dolinko, "Some Thoughts about Retributivism," 543, 544, 558,
45. and "Three Mistakes of Retributivism,"UCLA Law Review 39 (1992): 1624-57, 1629-30.
46. Judith Jarvis Thomson, The Realm of Rights (Cambridge, MA: Harvard University Press, 1990), e.g., chap. 4.
47. That this is not a legitimate state interest has been one recurrent theme in the literature. See, e.g., Jeffrie G. Murphy, "Retribution and the State's Interest in Punishment," Nomos XXVII: Criminal Justice, ed. J. R. Pennock and J. Chapman (New York: New York University Press, 1985), 156-64. Because I cannot here give the argument the attention it merits, I merely observe that many plausible political theories would deem the pursuit of any good prima facie legitimate. At the same time, many political theories are not consistent with retributivist justifications for punishment. Nothing in this article should be construed, then, either to claim that integrated dualism satisfactorily justifies punishment across the range of possible and actual theories of the role of the state or to deny that a fully adequate justification of punishment must form part of a more complete political theory. Of course, however, the integrated dualism put forth, if attractive, is to that extent an argument against any political theory with which it is incompatible.
48. See, e.g., Burgh, "Do the Guilty Deserve Punishment?" 198-202; Warren Quinn, "The Right to Threaten and the Right to Punish," Philosophy & Public Affairs 14 (1985): 327-73, 331-34;
49. and Duff, Punishment, Communication, and Community, 15-16.
50. See, e.g., Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (Oxford: Clarendon, 1994), chaps. 2 and 12.
51. One might suppose, to the contrary, that the proposition that justice demands the infliction of suffering upon A is incompatible with the proposition that A has a right against that infliction of suffering. On this view, the right in question might be better conceived as the right against the infliction of undeserved suffering, or something of this sort. And if this is so, then the argument sounding in retributive justice works by cancellation, not override. The distributive justice comparison offers reason to doubt, however, that the incompatibility claim is sound. That distributive justice is served by redistributing property from A to B might justify the taking of A's property but does not entail (though is compatible with) the proposition that A lacks a right that his property not be taken.
52. c)(infliction) does not depend upon the concept of retributive justice but that neither does it rely upon a rejection of the concept.
53. Hillel Steiner, "Moral Rights," in The Oxford Handbook of Ethical Theory, ed. David Copp (Oxford: Oxford University Press, 2006), 459-79, 474.
54. See, e.g., Herbert Morris, "Persons and Punishment," Monist 52 (1968): 475-501;
55. Duff, Punishment, Communication, and Community, chap. 2;
56. and Jeffrie G. Murphy, "Marxism and Retribution," Philosophy & Public Affairs 2 (1973): 217-43.
57. See Steven Sverdlik, "Motive and Rightness," Ethics 106 (1996): 327-49 (arguing for the importance of motivations to act evaluations).
58. Dolinko identifies only three possible responses that the retributivist can make to the infliction of torture as punishment (as distinct from a means of eliciting information). She could bite the bullet (1) by conceding that state infliction of torture can be morally permissible. Or she could accept that torture is morally impermissible, either (2) by denying that the torture of a person - even an individual who is himself guilty of torturing others - can ever be an intrinsic good or (3) by contending that the wrongdoer's right not to be tortured cannot be forfeited (David Dolinko, "Retributivism, Consequentialism, and the Intrinsic Goodness of Punishment," Law and Philosophy 16 [1997]: 507-28, 525-27). I am suggesting a fourth possibility: (4) it is an intrinsic good that a guilty person suffer in proportion to his blameworthiness, and bringing about such suffering does not infringe the guilty person's rights insofar - but only insofar - as the infliction of punishment treats him with the respect for personhood to which he has a right. Unlike response 1, this view can concede that torture (as punishment) is impermissible because it is persondisrespecting; unlike 2, it is not committed to denying that, in extreme cases, the state of affairs in which an individual suffers torture can be an intrinsic good; and unlike 3, it does not depend upon the selective forfeiture of rights.
59. Jeff McMahan objects that, if the often-supposed right against the infliction of pain is merely an implication of the right to be treated with respect as a person, then it would follow - unacceptably - that animals have no right against the infliction of suffering. I am not certain, however, that this conclusion is unacceptable. The suffering of animals can be (as I think it surely is) a bad state of affairs that we have moral reason not to bring about and even to ameliorate, without the animals necessarily possessing any rights.
60. We can see how this position would help support an argument for the "beyond a reasonable doubt" standard of proof, though developing and defending the argument cannot be attempted here. Very briefly, the idea is that a posture of proper respect demands that a decision maker or institution-builder appreciate the gravity of a false positive and thus create procedural protections adequate to substantially reduce that possibility.
61. I am grateful to Larry Alexander for raising this concern.
62. c)(infliction). In these cases, the defendant's right to respect as a person is infringed but possibly not violated.
63. More precisely (to accommodate non-realist metaethics), whether a given state of affairs is a token of the type that is intrinsically bad (or good or neutral) is belief independent.
64. p)(suffering), and hence for J(P)(inflicts suffering); and second, that those good consequences are not plausibly limited to the (supposed) good of producing the good of deserved suffering. (I am grateful to an anonymous referee for encouraging me to add this clarification.)
65. See, e.g., George Schedler, "Can Retributivists Support Legal Punishment?" Monist 63 (1980): 185-98 (arguing that retributivists' inability to justify peripheral cases of punishment renders them unable to justify punishment at all).
66. In favoring this nomenclature, I am in accord with Wood, though he does not offer reasons for his terminological choice.
67. See Robert Nozick, Philosophical Explanations (Cambridge, MA: Belknap Press/Harvard University Press, 1981), 8-18.
68. On the distinction, and how it applies to the justification of punishment, see Dolinko, "Some Thoughts about Retributivism," 539-42.
69. See, generally, Dolinko, "Retributivism, Consequentialism, and the Intrinsic Goodness of Punishment."