Reciprocity as a justification for retributivism

Criminal Justice Ethics

Volumn 16, Issue 1, 1997, Pages 13-25

  Anderson, Jami L ^a  

^a UNIVERSITY OF CENTRAL ARKANSAS   (United States)

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EID: 77950262649     PISSN: 0731129X     EISSN: 19375948     Source Type: Journal    
DOI: 10.1080/0731129X.1997.9992024     Document Type: Article

References (63)

1. I would like to thank Sharon Lloyd, John Dreher, Kadri Vivhelin, Greg Jarrett, and Jeffrie Murphy for helping me think about these issues.
2. Jeffrie Murphy takes this criticism head on and gives a qualified defense of what he calls retributive hatred in Forgiveness And Mercy (1988), especially pp. 88-110.
3. H. L. A. HART, PUNISHMENT AND RESPONSIBILITY, 231-237 (1963).
4. Acts of negligence raise special problems for this characterization of retribution. Although many (if not most) retributivists would want to punish acts of negligence, the WW principle seems to preclude the punishment of such acts. This issue opens an interesting discussion that is beyond the scope of this paper.
5. Critics of retributivism question the retributivist's claim that the punishment must fit the crime because the criminal herself willed that crime. Contemporary retributivists explain this claim by appealing to notions of reciprocity which will be explained below. A classical retributivist like Hegel, on the other hand, did not appeal to such a notion. Instead, he argued that each crime had a certain qualitative and quantitative feature that could be punished only by a qualitatively and quantitatively similar punishment. Although his argument is interesting, it deserves a separate discussion.
6. I. KANT, Metaphysical First Principles Of The Doctrine Of Right, Ak. 332 (M. Gregor trans. 1991).
7. Id. at Ak. 331.
8. Although many are uncomfortable with the metaphysical assumptions on which Hegel's theory of punishment relies, I refer to his claims about punishment in this introductory section since he holds a paradigmatic view of retributivism, one which differs importantly from Kant's. G. HEGEL, HEGEL'S PHILOSOPHY OF RIGHT, §100 (T. Knox. trans. 1952).
9. For Hegel, a right is any existence that is the existence of the free will, so when he says that a criminal has a right to be punished, he is saying that in punishing the criminal we are acting in the right, her right, that she has established when giving volition to her criminal will, id.
10. Hart's essay Postscript: Responsibility and Retribution in PUNISHMENT AND RESPONSIBILITY, supra note 3, ch. 11.
11. I. KANT, METAPHYSICAL ELEMENTS OF JUSTICE, Ak. 333 (J. Ladd trans. 1965), emphasis mine.
12. Hegel writes, Retribution is inflicted on the criminal and so it has the look of an alien destiny, not intrinsically his own. Nevertheless punishment, as we have seen, is only crime made manifest, i.e. is the second half which is necessarily presupposed by the first. G. HEGEL, supra note 7, at §101A.
13. Jean Hampton's Moral Education Theory of Punishment is, to my mind, just such a version of retributivism; it is an attempt to accommodate the intuition that something good for the criminal (not for society generally, as utilitarians have claimed) ought to come of an act of punishment while holding firm to the standardly retributive ideas that (1) the criminal acted wrongfully voluntarily, (2) the punishment must match the crime, and (3) punishment is in itself just. Although Hampton demands that punishment be intended not merely to inflict injury, but also to educate or morally improve the wrongdoer in some way, her theory of punishment is nonetheless not consequentialist. She claims, for example, that the form of punishment ought not to be lessened if the criminal repents immediately or, on the other hand, to be increased if, after receiving her full sentence she refuses to repent. Her theory makes all the claims made in the crude model of retributivism, and the only additional claim made, that justified punishment ought to be intended to educate or reform the criminal (while important to her theory), is not a foundational claim. It cannot trump any of the more basic retributivistic claims. Thus, though she does not regard her theory as retributive, its basic claims show it to be a version of retributivism. See Hampton, The Moral Education Theory of Punishment, 13 PHIL. & PUB. AFF., at 208-38 (1984).
14. T. HOBBES, Leviathan, C.H. 21 (1985).
15. Locke, Second Treatise, ch. II §4 in Two TREATISES OF GOVERNMENT (1988).
16. Rawls, like Locke, has a normative concept of equality. We are to suppose that the parties in the original position are equals to represent equality between human beings as moral persons, as creatures having a conception of their good and capable of a sense of justice.
17. J. Rawls, A Theory Of Justice, 19 (1971).
18. T. Hobbes, supra note 13.
19. J. Locke, supra note 15, at ch. VIII §97.
20. Hobbes claims that the benefits of the commonwealth are peace and security, protection of one's person and property, and freedom from the interference of others. He writes: The finall Cause, End, or Designe of men, (who naturally love Liberty, and Dominion over others,) in the introduction of that restraint upon themselves, (in which we see them live in Common-wealths,) is the forsight of their own preservation, and of a more contented life thereby; that is to say, of getting themselves out from that miserable condition of Warre.
21. T. HOBBES, supra note 13, at ch. 17. Locke, too, claims that one of the benefits of the civil state is security. He writes: But though Men when they enter into Society, give up the Equality, Liberty, and Executive Power they had in the State of nature, into the hands of the Society, to be so far disposed of by the Legislative, as the good of the Society shall require; yet it being only with an intention in every one the better to preserve himself his Liberty and Property.
22. J. Locke, supra note 15 at chs. II & (especially) IX.
23. This point can be made using Hobbes's non-normative sense of equality. Were some essentially smarter or stronger than others (and were it not the case that when all was reckoned together all are equals), then Hobbes could not argue that all are constrained by reason to form and abide by a social compact, for those who are essentially superior would have little to gain in obedience and much to lose. It is only by virtue of our being equals that forming and maintaining a social contract is rational. He writes: The question who is the better man, has no place in the condition of meer Nature
24. where, (as has been shewn before,) all men are equall. If Nature therefore have made men equall, that equalitie is to be acknowledged: or if Nature have made men unequall
25. yet because men that think themselves equall, will not enter into conditions of Peace, but upon Equall termes, such equalitie must be admitted. And therefore for the ninth law of Nature, I put this, That every man acknowledge other for his Equall by Nature. The breach of this Precept is Pride.
26. T. Hobbes, supra note 14, at ch. 15.
27. This theory maintains commitment to WW
28. thus unintentional H rms are not crimes.
29. It is widely claimed that a prominent example of a retributivist theory making use of the social contract tradition is Kant's theory of punishment. However, Kant does not develop his discussions of punishment in great detail. A fuller account of a Kantian version of retributivism relying on a notion of reciprocity to justify punishment is developed by J. Murphy.
30. RETRIBUTION, JUSTICE AND THERAPY (1979). Murphy has since concluded that Kant does not have what we would want to call a theory of punishment, and, in fact, he claims that there is enough textual evidence to cast serious doubt on the claim that Kant's comments on punishment are consistently retributivistic. Kant is nonetheless regarded by many contemporary thinkers as holding that retributivism is founded in a notion of reciprocity. Whatever Kant's real views on punishment were, this theory of Reciprocity Retributivism now has a life of its own independent of his political writings.
31. Murphy's Does Kant Have a Theory of Punishment?, 8 7 COLUM. L. REV. 509-32 (1987).
32. Morris, Persons and Punishment, GUILT AND INNOCENCE 34 (1976).
33. Id. at 36.
34. One objection to Morris's theory is that his claim that all are equally burdened (and benefited) by the legal system is problematic. If a law does not create a sphere of non-interference for all, then those without that sphere cannot be said to have unfairly benefited from that sphere of protection if they violate it. Thus it seems to follow that punishing them for breaking that law is unjust. Richard Burgh develops this point in his Do the Guilty Deserve Punishment?, 79 J. PHIL., at 193-210 (1982). I think that Morris can answer this objection. Rather than claim that each particular law protects each particular person equally, Morris need only claim that the system as a whole protects each person equally. Richard Dagger develops this line of response in Playing Fair with Punishment 103 ETHICS, at 473-88 (1993).
35. J. Murphy, supra note 22, at 100.
36. Murphy claims that fairness is only a formal principle and is not intended to explain the proportionality of punishments.
37. Burgh's Do the Guilty Deserve Punishment? Supra note 25, for a more detailed critical analysis of the details of both Murphy's and Morris's theories of Reciprocity Retributivism.
38. J. Murphy supra note 22 at 79.
39. Dagger offers another version of Reciprocity Retributivism. He argues that individuals in a society are equal and alike as subjects of the law. It [the crime] must be condemned in order to maintain equality in the eyes of the law. The balance to be restored, then, is the balance between people qua equal subjects of the law. Punishing those who upset this equality is the closest we can come to restoring the balance in this sense. In this version, too, punishment is both necessary and justified as it is only retributive punishment that ensures we remain equals before the law.
40. Dagger, supra note 25.
41. Murphy addresses internal criticisms in his Three Mistakes about Retributivism, supra note 22, at 77-81. John Finnis attempts to clarify the Proportionality Principle in his The Restoration of Retributivism, 32 ANALYSIS, at 131-35 (1972). Richard Dagger
42. defends Reciprocity Retributivism against internal criticisms in his Playing Fair with Punishment, supra note 25.
43. R. A. Duff offers serious criticism of the notion of treating punishment as a balancing of benefits and burdens. See TRIALS & PUNISHMENTS, ch. 8 (1986).
44. Philosophers have argued that social contractarian systems can exploit, oppress, and/or alienate whole classes of individuals. Because oppression, exploitation, and alienation are philosophically loaded words that require commitment to assumptions that are not necessary for this paper, I will use a neutral term and refer to such systems as disadvantaging.
45. It may seem that this objection against Reciprocity Retributivism can be made profitably only against a Hobbesian or Lockean social contract theory, but not against a Rawlsian one. However, I think that even the Difference Principle may allow for disparities of wealth that permit severe economic disadvantages (though, admittedly, the two principles of justice ought to rule out disadvantages resulting from racist or sexist practices). The Difference Principle requires that social and economic inequalities are to be arranged so that they are both (a) to the greatest benefit of the least advantaged and (b) attached to offices and positions to all under conditions of fair equality and opportunity. The Difference Principle requires that the distribution of resources chosen be to the greatest advantage of the least well off given possible distribution options available. As long as there is a scarcity of goods, the least well off may still be poor relative to others in society. As long as his share in the goods is greater than that of the least well off in any other distribution possible, the least well off receives his fair share of the resources and his fair share of the benefits of social cooperation.
46. J. Rawls, supra note 15, at 83.
47. Even if the crime remains unpunished, and the balance of benefits and burdens remains out of balance, we are still obligated to continue to bear the burdens of compliance. Though both Hobbes and Locke claim that the contract can be nullified, these conditions are extreme, and they are not, I believe, the conditions faced by the person who is frequently victimized.
48. Marx, Capital Punishment, New York Daily Tribune (Feb. 18, 1853). Murphy refers to this criticism of Reciprocity Retributivism as "the gap between theory and practice.
49. supra note 22, at 77-81.
50. Stephen Schulhofer explores the plausibility of such a defense in The Gender Question in Criminal Law, 7 Soc. PHIL. &POL'Y, at 105-37 (1990). He argues that it is ad hoc to claim that a wrongdoer acted because she has Battered Wife Syndrome, say, when the only evidence of her suffering from this syndrome is that she committed this wrongful act. Given the lack of non-criminal indicators for these syndromes, he concludes that it seems prudent to be wary of them. In contrast, some Feminist-Marxists claim that the syndrome defense is a feeble (and uncompelling) attempt to address the symptoms while wholly ignoring the real problem, the unjust and sexist distributions of power in society.
51. FEMINIST LEGAL THEORY FOUNDATION (D. Kelly Weisberg ed. 1993), in particular, MacKinnon Feminism, Marxism, Method and the State: An Agenda for Theory, at 437-53.
52. Richard Delgado remarks on this problem with using selfdefense to justify crimes committed by those who suffer from poverty and racism.
53. 'Rotten Social Background': Should the Criminal Law recognize a Defense of Severe Environmental Deprivation? from 2 LAW & INEQUALITY, at 9-90 (1985).
54. Murphy quotes Marx's criticism of retributive punishment and addresses it directly. (In fact, he claims that one could view his entire article as an elaborate commentary on Marx's passage.) See Marxism and Retribution,in RETRIBUTION, JUSTICE AND THERAPY, supra note 22.
55. Three Mistakes about Retributivism, supra note 22, at 80.
56. Id. at 77-81.
57. why a Hobbesian or Lockean social contract would generate this problem for retributivism, and one may think that Rawls's THEORY OF JUSTICE social contract avoids these difficulties. (I suspect Murphy thinks it does.) But Rawls's theory is criticized by feminists who worry that his refusal to have the two principles of justice regulate the private sphere, the division of labor within a family, for example, is evidence that his theory will perpetuate sexism since women who are raised in severely sexist homes will be disadvantaged in the public sphere. Therefore, though a Rawlsian wellordered society will ensure that all citizens receive the benefits and burdens of fair public political institutions, it will nonetheless tolerate the alienation or oppression of women within the home, and consequently the justification of their punishment by reference to fairness is problematic.
58. S. OKIN, JUSTICE, GENDER, AND THE FAMILY (1989). But, defending Rawls,
59. Lloyd, Family Justice and Social Justice, 75 PACIFIC PHIL. Q., at 353-372 (1994).
60. Finally, I think the social contractarian would have a response to this example. Although it is true that our poor man is not gaining relative to any rich person when he assaults his wife, he is gaining relative to his victim-and thus he is benefiting from his crime. He enjoys the minimal benefits of security, and she does not; thus his punishment is warranted- even though he experiences concrete disadvantages relative to others in his society.
61. Of course, the Reciprocity Retributivist could bite the bullet and reject the Marxist's suggestion that retributivism is insensitive to real social relations, but that move would hardly endear the theory to those whose worries that retributivism failed to offer sufficient justification for the infliction of harm spurred the retributivists to seek theoretical support from social contractarianism in the first place.
62. Finally, I feel I should mention that the classic social contractarian political theories do not have retributive theories of punishment. (By itself, this fact is hardly decisive, but it does serve to increase my suspicion that the social contractarian A d retributivism alliance is ill-fated.) The Reciprocity R tributivist is borrowing ideas that are within the social contractarian tradition, but those ideas do not commit the social contractarian to retributivism. Although Locke insists that we have a natural right (and, it seems, obligation) to punish those who harm us, he claims that the purpose of punishment is to deter persons from committing harms. He writes, Each Transgression may be punished to that degree, and with so much Severity as will suffice to make it an ill bargain to the Offender, give him cause to repent, and terrifie others from doing the like. Supra note 15, at ch. 2 §12. Thus, Locke does not claim, as the retributivist does, that a crime warrants a proportionate act of punishment. Rather, according to Locke, the appropriate act of punishment is that one which will bring about certain specified ends: ensuring that the criminal does not profit from his act, giving the criminal cause to repent, and terrifying others. Likewise, Hobbes, who clearly has a social contractarian theory, defines punishment as a consequentialist (not retributivist) act. He writes, A Punishment, is an Evill inflicted by publique Authority, on him that hath done, or omitted that which is Judged by the same Authority to be a Transgression of the Law
63. To the end that the will of men may thereby the better be disposed to obedience. Supra note 14, at ch. 28.