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This research paper offers an account of some of the canonical ideas and authors of traditional retributivism. For present purposes, retributivism is understood as a type of justification of criminal punishment. One of the most salient characteristics of this justification is that it focuses on a past event, prior to the infliction of hard treatment upon the offender. Retributivism is thus defined as a backward-looking justification of punishment. Rather than emphasizing the likely consequences that the imposition of penal sanctions may bring about, traditional retributivism insists that the core of justified punishment is the intrinsic wrongness of the act committed by the agent, which makes the offender deserve the hard treatment entailed by this practice. This research paper unpacks and explains these different retributivist claims by offering an overview of the lex talionis, Kant’s retributivism, and Hegel’s retributivism, three of the most fundamental sources of retributivism.
Punishment is a perplexing practice. On the one hand, it imposes burdens upon individuals that under most circumstances we would consider inadmissible. The punished may see her freedom of movement radically hindered, her property expropriated, and even her life terminated. On the other hand, punishment is a pervasive practice the state undertakes on a daily basis. Indeed, the state claims punishment is part of its legitimate functions and, therefore, a practice to which it is entitled.
How can a practice like that be justified? Or, more fundamentally, is there anything that could possibly justify it? Abolitionists argue that punishment cannot be justified and, thus, should be abolished. However, pace abolitionists, there is a long tradition that has devoted time and effort to develop an argument for the justification of punishment. One such type of justification is consequentialism. Another is retributivism. Consequentialists hold that punishment is a justified practice if and only if it brings about consequences whose benefits outweigh the costs it causes and these benefits are greater than (or as good as) those obtainable by nonpunitive means. By contrast, retributivists hold that offenders deserve to be punished for their wrongdoings. Thus, for retributivism it is not the case that punishment is a justified practice only if it produces a benefit such as deterrence or rehabilitation and produces such a benefit better than alternatives. The retributivist insists that those ends cannot justify the infliction of hard-treatment. Instead, rather than focusing on future consequences, retributivists focus on a past act – the criminal offense – thereby offering a backward-looking justification of punishment. For the retributivist, those who committed a wrong are guilty of that wrong, and the guilty deserve to be punished. Punishment is, the retributivist claims, the intrinsically adequate response to wrongdoers.
Keeping these features of retributivism in mind, let us now consider three traditional sources of retributivist principles and ideas. In the course of presenting these different sources, emphasis is put on the questions of how to determine adequate types and amounts of punishments, the justificatory connection between punishment and crime, and the place of punishment in the broader context of moral and political theory.
Some of the oldest expressions of retributivism can be found in various passages in the Hebrew Bible. In “Leviticus,” for example, it is said that “if a man cause a blemish in his neighbour; as he hath done, so shall it be done to him; breach for breach, eye for eye, tooth for tooth: as he hath caused a blemish in a man, so shall it be done to him again. And he that killeth a beast, he shall restore it: and he that killeth a man, he shall be put to death (24:19–21). And Exodus states: “if any mischief follow, then thou shalt give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, stripe for stripe” (21: 23–25). In ordinary parlance, this is what has come to be known as the “eye for an eye” principle or, in its Latin formulation, the lex talionis, which is aptly translated as the law that imposes a punishment that resembles in kind and degree the wrong committed (for another, older source of the lex talionis see the Hammurabi’s Code of Laws (c. 1780 BCE)). For the purposes of this section, this principle’s most relevant feature is the idea of “likeness” between present punishment and past wrongdoing. This feature shall lead us to consider in some detail both the plausibility and nature of the lex talionis.
To contemporary eyes, the lex talionis seems to be a very unlikely source for justified criminal punishment. The most obvious objection against this principle emerges when we think of the type of punishment that should be inflicted upon offenders for very serious wrongdoings. For example, should we rape the rapist? Or, should we torture the torturer? For some people, this makes a conclusive point against the revival of the lex talionis in current criminal practices (see Bedau 1978; Lacey 1988). However, this response is too quick. First of all, defenders of the “eye for an eye” principle may argue that although the lex talionis may not work for any type of crime, it does help us to explain the type of punishment that should be inflicted on some offenders for some crimes in certain circumstances. An offense at point is murder. In cases of intentionally killing of a person without justification or excuse, the lex talionis shows straightforwardly the punishment that is to be meted out to the murderer. Furthermore, proponents of the lex talionis may argue that this law has a much more sophisticated form than may first appear and that this qualified understanding of the principle should make us see the lex talionis as an adequate principle for a theory of punishment. The rest of this section shall consider in some further detail this more nuanced depiction of the lex talionis.
We should begin by asking what kind of principle is the lex talionis and in what sense it is connected to retributivism. This is a relevant question because it would be a mistake to understand the lex talionis as a version of a retributivist justification of punishment. The lex talionis does not tell us why someone may be morally justified in inflicting punishment upon an individual for her offense. Instead, it advances an answer to the question of what ought to count as the adequate punishment to be imposed upon an offender. This means that the lex talionis is logically posterior to the justification of punishment. In turn, this opens the possibility that the lex talionis is a principle that is compatible with different types of justification of punishment, including consequentialist justifications (see Waldron 1992).
The possibility that the lex talionis may be part of a consequentialist justification of punishment forces us to specify the sense in which this principle is connected with retributivism. The clearest sense in which both are linked is that both focus on a past event. We have already seen that retributivism offers a backward-looking justification of punishment. Similarly, the lex talionis answers the question of the type of punishment that is to be visited on an offender in the present by looking at the act performed by the offender in the past. This gesture to a foregoing act provides us with an answer (at least part of it) to the question of how we should punish an offender. In short, both retributivism and the lex talionis contemplate a time prior to the present to unravel relevant questions about punishment. This is what connects the “eye for an eye” principle with retributivism.
This connection to the past brings us to the core of the possibility of a more nuanced, sophisticated, and thus plausible account of the lex talionis. Such an account depends largely on how we interpret the equivalence that ought to exist between a past offense and present punishment. The bad name that the lex talionis may have derives from interpreting this equivalence strictly (i.e., raping the rapist and torturing the torturer). Indeed, strict equivalence makes punishment look more like sheer cruelty than like a justifiable practice grounded in a sound moral theory. Thus, the moral plausibility of the lex talionis depends on the existence of a more charitable interpretation of the connection between a past offense and its present punishment. The kernel of this more nuanced account of the lex talionis is to deny that we should punish offenders with an action identical to the offense committed. Instead, an adequate account of this principle is that an offender should be visited with the same relevant type of act as the one that constituted the offense. There are different and independent reasons for dismissing a strict interpretation of the lex talionis, but perhaps the two most evident are, first, that it is not possible (perhaps, not even logically possible) to inflict upon an offender at a present time an action identical to the past offense and, second, that a practice like that is vengeful, cruel, and inhumane.
If the strict interpretation is successfully dismissed, what can be offered as a plausible account of the lex talionis? Rather than asserting the identity between a past offense and the punishment that ought to be visited upon the offender, a plausible interpretation of this principle should affirm the similarity between these two events. But this is insufficient: what are the features of a past offense that are to be matched in present punishment? Should punishment bring about a physical and/or psychological harm similar to the one the past offense caused the victim? Should it be performed with a violence similar to that used by the offender? Should punishment be inflicted the same day of the week in which the offense was committed? All these are features that would make present punishment similar to a past offense but, surely, they are not what a defender of a morally grounded account of the lex talionis will advance in support of the principle. Instead, the lex talionis is considered in its best light when it is understood as a principle that, first, makes us focus on what constitutes the wrong of a past offense and, second, makes us choose the adequate type of punishment in light of that wrong. Thereby, the lex talionis tells us that only by establishing the wrongness entailed by the past offense can we have an answer to the question of the punishment that must be inflicted on the offender. Of course, which is that wrong and what are the relevant features that must constitute present punishment for a past wrong are things on which we will disagree. That is inescapable. However, inescapable disagreement does not imply that no arguments can be advanced in this matter.
Immanuel Kant’s views on punishment and its justification are generally considered as paradigmatic of retributivist reasoning. Although some commentators have challenged this interpretation, or, at least, challenged that Kant’s account is purely retributivist, this research paper will be mainly concerned with the most widespread view on Kant’s account of punishment. Thus, irrespective of the plausibility of a non-retributivist account of Kant’s philosophy of punishment, Kant is here interpreted as an exemplar theorist of traditional retributivism (for non-retributivist interpretations of Kant, see Byrd 1989; Cummiskey 1990; Tunick 1996; Brooks 2003. For an account that challenges the consistency and coherence of Kant’s views on punishment on grounds that they advance both a deterrence and retributivist system of punishment, see Murphy 1987.
The most developed account of Kant’s retributivism is found in “The Doctrine of Right,” the first part of his late work The Metaphysics of Morals (Henceforth, Kant 1991 followed by the pagination of the Prussian Academy of Sciences edition of Kant’s writings and the page number of the English edition. For Kant’s views on punishment, see also Lectures on Ethics [27: 286, 547, 552f]; Critique of Pure Reason [A317/B373]; and Critique of Practical Reason [A65-A67]). In “The Doctrine of Right,” Kant emphatically tells us that criminal punishment.
can never be inflicted merely as a means to promote some other good for the criminal himself or for the civil society. It must always be inflicted upon him only because he has committed a crime. For a man can never be treated merely as a means to the purposes of another or be put among the objects of rights to things [.. .]. He must previously have been found punishable before any thought can be given to drawing from his punishment something of use for himself or his fellow citizens. The principle of punishment is a categorical imperative, and woe to him who crawls through the windings of eudaemonism in order to discover something to release the criminal from punishment or even reduces its amount by the advantages it promises [.. .]. (Kant 1991, 6:331–332, pp. 140–141)
Kant is clear in insisting that an offender must be punished only because he has performed an action deemed criminal by the civil society. It is only because the offender has made himself worthy of punishment that punishment must be visited upon him. To do otherwise is to act impermissibly. To punish an offender O for action A because under the circumstances this would increase or maximize society’s feeling of security by deterring O or other potential offenders from A-ing (or from performing other actions deemed criminal) is illegitimate and wrong. Similarly, to punish O because punishment would reform O, so after punishment O would be less likely to A again, is also an expression of illegitimate punishment. For Kant, only the guilty must be punished, and the guilty must be punished because it is deserved. To do otherwise is to use the offender as a mere means to an end, a violation of the Kantian moral law.
However, despite this strong retributivist approach, Kant notes that consequentialist considerations can also enter into the justificatory scheme. The point is that they cannot figure as having a primary or exclusive role in the justification of punishment. Indeed, by opening the door to consequentialist features in the justification of punishment, Kant advances an attractive and plausible account of retributivism that may well anticipate contemporary mixed theories of punishment (for Kant as a mixed-theorist see Byrd 1989. For mixed theories in general, see Hart 1959; von Hirsch 1976, 1993). Thus, Kant’s account presents a version of retributivism that is more complex than some critics have been willing to recognize (e.g., Dolinko 1992). However, and to be sure, independently of the good and desirable consequences that may follow the imposition of punishment upon an offender, for Kant it is the intrinsic evil of the act performed by the offender that makes her deserve punishment.
This conclusion, however, can only be a part of a complete answer to the question of the justification of punishment. As Kant himself realizes, we also need to know “what kind and what amount of punishment is it that public justice makes its principle and measure?” (Kant 1991, 6:332, p. 141). To answer this question, Kant appeals to something close to the lex talionis conceived in terms of a “principle of equality.”
According to this principle, “whatever undeserved evil you inflict upon another within the people, that you inflict upon yourself. If you insult him, you insult yourself; if you steal from him, you steal from yourself; if you strike him, you strike yourself; if you kill him, you kill yourself” (ibid.). In Kant’s own words, “the law of retribution (ius talionis) [.. .] can specify definitely the quality of and the quantity of punishment” (ibid).
How would Kant reply to the difficulties posed in the previous section of this research paper in relation to the “eye for an eye” principle? Kant recognizes that although there are times in which the lex talionis principle cannot be strictly followed, it remains as a valid way to specify what the wrongdoer deserves: the spirit of the principle is upheld insofar as the punishment inflicted “is quite similar” to the offense performed (Kant 1991, 6:332, p. 141. See also 6:363, pp. 168f). It is worth noting that Kant’s proposal on this issue seems to expand the types of punishment that may be rightly imposed upon an offender. He does not reduce the practice of state punishment to widespread types of penal retribution such as expropriation, restrictions of freedom of movement, or the termination of life. Indeed, he goes as far as to consider a variety of punishments, such as public apology or hand kissing (presumably to demonstrate the equal status as citizens of individuals from different social classes). Moreover, for cases in which the strict exercise of the lex talionis may seem offensive, cruel, or inhumane, Kant authorizes alternative forms of punishment (although to our eyes these alternatives may still be offensive, cruel, or inhumane). Thus, for rape and pederasty he proposes castration, while for bestiality he suggests “expulsion from civil society, since the criminal has made himself unworthy of human society” (Kant 1991, 6:363, p. 169). There is, however, one class of offense that cannot be responded to by proxy, namely, murder. “Here there is no substitute that will satisfy justice” (Kant 1991, 6:333, p. 142). In this case, death is the only legitimate response to be visited upon the offender since this sentence is proportional to the criminal’s “inner viciousness” (ibid.).
Beyond the reasonable and serious doubts these types of punishments may bring about, Kant’s conception of the lex talionis is successful in advancing an important consideration not to be overlooked when establishing both types and quantum of legitimate punishment. Kant’s nuanced account of the principle of retribution brings to the fore the duty we have to uphold a principle of humanity in retribution, the violation of which contravenes not only human dignity but also the very concept of punitive justice (see Kant 1991, 6:363, p. 168f). Thus, Kant sees the lex talionis as the adequate principle of retribution, the appropriate way to determine how to punish offenders in a way required by the respect owed to all human agents. The satisfaction of this principle of respect is a core aspect of Kant’s retributivism.
Besides this and other virtues, Kant’s theory of punishment faces a series of difficulties that have been largely noticed by commentators (e.g., Murphy 1987; Merle 2000; Hill 2003). These problems are either inherent to retributivism, and thus, shared by all or most versions of it, or characteristic of Kant’s moral and political theory from which his retributivist theory is built. Because many of the former difficulties are discussed in different places of this and Bennett’s entry on retributivism, this section concludes with some brief comments on the latter type of difficulties.
By now it should be clear that desert has a central role in Kant’s retributivism: it strongly denies the legitimacy of punishment inflicted, primarily, for reasons other than desert. However, given Kant’s emphatic distinction between actions – external and the proper subject of justice – and motives – internal and the proper subject of virtue – it is difficult to provide desert with a coherent place within the theory, at least in the way it is presented in the “Doctrine of Right.” To some extent, the difficulty derives from the lack of a sufficient account of intentional actions that make sense of the relevant internal factors of agents that Kant’s retributivism must take into account to justify punishment.
This gap in the theory is closely linked to another feature missing in Kant’s account. Kant affirms that offenders ought to be punished because their wrongdoings show inner wickedness. At the same time, Kant makes clear that the law is there to deal only with external actions – that is, it “does not include the incentive of duty in the law and so admits an incentive other than the Idea of a duty itself” (Kant 1991, 6:219, p. 46). From a liberal point of view, precluding the state and its coercive apparatus from meddling in the inner sphere of individuals is something to welcome. However, this insight is difficult to reconcile with Kant’s concern with the internal wickedness of offenders that may make punishment justifiable. These are not irremediable difficulties, but they do cast some doubts about the internal coherence of Kant’s theory of punishment.
In the Anglo-American tradition of legal and political philosophy, G.W.F. Hegel’s retributivism has received much less attention than Kant’s (for exceptions, see Wood 1990, Chap. 6; Tunick 1992; Brooks 2012). This is regrettable, as Hegel’s account of crime and punishment – mainly developed in his Elements of Philosophy of Right – provides enlightening insights into the nature of retributivism in particular and the institutions of criminal justice in general. It is worth noticing that, despite this dearth of attention, Hegel’s theory of punishment has still managed to influence contemporary accounts of criminal punishment and penal justice (e.g., Hampton 1984; Morris 1968; Brudner 2009).
As happens with Kant’s theory, there is room for debate on the extent to which Hegel does advance a pure retributivist account. However, whether he coherently introduces non-retributivist elements in his theory is something that this research paper will not consider in further detail. Rather, our concern is confined to the retributivist aspects of Hegel’s views in relation to punishment. For a recent treatment of Hegel as a mixed-theorist, see Brooks 2012.
Before considering the sense in which Hegel is a retributivist, a general contextual preliminary is in order. In the Elements of the Philosophy of Right (henceforth Hegel 1991, followed by the paragraph and page number in the English edition), Hegel is concerned “with the concept of right and its actualization” (Hegel 1991, }1, p. 25). Hegel’s project is thus devoted to the manifestation in the social world of the concept of right, which manifests itself from different but interrelated positions that Hegel calls the “Abstract Right,” “Morality,” and “Ethical Life.” The Elements, in short, aim to account for the dynamic and connection of these different appearances of right. Hegel’s discussion on punishment appears mainly in “Abstract Right” where persons are seen as abstract agents, stripped from their particularities, and capable of manifesting their freedom and self-determination in external things. A consequence of this conception of the individual is that, to treat someone as a person, we are obliged to act in ways that recognize her ability to conduct her life as a free agent in the world. As we will see shortly, this has important consequences for Hegel’s retributivism. For a useful synthetic exposition of these general preliminaries, see Dubber 1994.
The essence of Hegel’s retributivism emerges with some clarity when he articulates the relationship that exists between crime and punishment. Hegel states in his characteristic style that the “determination of the concept [of punishment], however, is precisely that necessary connection [which dictates] that crime, as the will which is null and void in itself, accordingly contains within itself its own nullification, and this appears in the form of punishment” (Hegel 1991,}101, p. 128). In this passage, Hegel is drawing our attention to the structure of punishment and how it is essentially linked to the criminal act. For Hegel, crime implies punishment and punishment implies crime. This is not to suggest the obviously mistaken point that any time a crime is committed a punishment is meted out. Neither does it advance the view (consistent with Hegel’s position) that who is to be punished and to what extent depends on the nature of the criminal act. Hegel is rather pointing to a logical, and thus necessary, connection between these two parts of a single totality: “punishment is merely the manifestation of the crime, i.e., it is one half which is necessarily presupposed by the other” (Hegel 1991, }101 addition (H), p. 129).
Given this argument, it seems natural to elaborate further on the notion of crimes in order to ground the justification of punishment. Indeed, Hegel dedicates various paragraphs of “Abstract Right” to elucidate the nature of crimes. He distinguishes three varieties of wrongdoing: (1) civil wrongs, in which a particular will judges by itself, mistakenly, what is right about a particular case. These judgments are wrongs because they are mistaken judgments, but they do not thereby negate or intentionally disrespect the system of right as such (Hegel 1991, }}84–6, pp. 117–118). (2) Deception, by contrast to civil wrongs, involves the intentional violation of the law. However, in committing this wrong, I am simultaneously recognizing the system of right: I deceive someone by pretending to be acting according to the law (Hegel 1991, }}87–9, pp. 118–119). (3) Crimes are wrongs that negate right. They are neither unintentional, like civil wrongs, nor do they try to deceive others, like deception. Rather, crimes are an attempt to debunk right. But crimes go even further in their negative judgment. When a criminal act is committed, it is not only right as such that is negated (the offender has acted according to a maxim that contradicts right itself), but also the victim’s status as a person (her external freedom has been violated), and the offender’s right (he can then be treated according to the maxim generated by his action, namely, that one should violate other people’s external freedom).
With this account of crimes in place, the logical connection between punishment and crime should become clearer. For Hegel, “Punishment is the negation of the negation” (Hegel 1991, }97 addition (H), p. 123), which is to say that punishment cancels the negations of right involved in the criminal act. To make further sense of this idea we must notice that for Hegel right is absolute, that is, right is something that cannot possibly be canceled. Crimes are thus “null and void,” because offenders could never really negate right by means of their criminal actions. Punishment simply exposes such a vacuity and reaffirms right as right. Understood in this manner, punishment “is the reconciliation of right with itself”; “this reconciliation applies to the law, which restores and thereby actualizes itself as valid through the cancellation of the crime” (Hegel 1991, }220, p. 252). Punishment is just “in and for itself” (Hegel 1991, }99, p. 125). (For clarification on Hegel’s use of cancelation (Aufheben), see Hegel 1969, p. 107. For a critique, see Honderich 2006, pp. 41–45).
The previous analysis allows us to see how punishment reaffirms right as right (punishment reaffirms the validity of the system of law) as well as the right of the victim of crime (punishment denies the universal validity of the right violations entailed in the criminal act). But Hegel also contends that the reaffirmation of right via punishment does justice to the offender. This is the case because punishment is “a right for the criminal himself” (Hegel 1991, }100, p. 126). This is surprising since, as we have seen, punishment involves treating the offender in ways that we normally consider inadmissible. How then could punishment be an offender’s right? A characteristic aspect of Hegel’s theory becomes salient at this point. In “Abstract Right,” persons are defined in terms of their capacity for freedom and rationality, and by punishing offenders – who also happen to be persons (!) – we honor them as rational beings and recognize them as subjects of right. Justice is done, and the right as right is asserted, first, when punishment is imposed, and second, when it is imposed not as the result of a private but of a universal will (Hegel 1991, }104, p. 131). To consider punishment otherwise, as a mere threat or an act of revenge imposed by a private will, would mean to treat “a human being like a dog instead of respecting his honour and freedom” (Hegel 1991, }99, pp. 125–126. See also }102). The criminal “is denied this honour if the concept and criterion of his punishment are not derived from his own act; and he is also denied it if he is regarded simply as a harmful animal which must be rendered harmless, or punished with a view to deterring or reforming him” (Hegel 1991, }100, p. 126). This shows Hegel’s retributivist credentials in full light. By being punished, the wrongdoer is treated as he deserves, a rational human being capable of acting on universalizable maxims – in the case of crimes, the maxim of permitting the violation of another person’s external freedom. Punishment simply applies the universalized maxim of his offense to the wrongdoer himself.
If all this is sound – namely, that punishment is an integral part of the rational manifestation of right and, thus, it is in itself an act of justice that reaffirms the right that the offender attempted to cancel – then, how and how much should we punish the offender? This is a particularly pertinent question in this context. If punishment is also a right of the offender, as Hegel believes, he must surely have something to say about the amount and types of punishment that the state may legitimately inflict upon the offender. Unfortunately, Hegel says very little about this. Hegel seems aware of the difficulties involved in many interpretations of the lex talionis, and thus he proposes what he calls an “equality of value” principle between the past offense and present punishment (Hegel 1991, }101, pp. 127ff). However, this looks like a very unspecified, if not obscure, way to establish how and how much we ought to punish offenders. In addition to some form of ordinal equality, according to which the more serious the offense the harsher the punishment, it is unclear how Hegel means the principle of “equality of value” to be understood. It is not until “Ethical Life,” the third part of the Elements, that Hegel elaborates a bit further on these matters. In this later stage of the Elements, the individual is not depicted as a formal agent, as in “Abstract Right,” but as a particular person (Hegel 1991, }182, p. 220). Since for Hegel philosophy is concerned only with general and abstract principles, whereas the precise determination of these principles – one of which concerns the quantum of punishment – is a matter that depends on history and other contingencies (Hegel 1991, }3, pp. 28ff), it is no surprise that he left considerations about the distribution and proportionality of punishment to this later, less abstract, stage of the Elements. In short, Hegel believes that how and how much we should punish offenders is a matter to be resolved within the specific society in which punishment is performed. “A penal code [and with it, the definition of crimes and the harshness of punishments] is therefore primarily a product of its time and of the current condition of civil society” (Hegel 1991, }218, p. 251).
Hegel seems to be right. A universal code that establishes, irrespective of the circumstances of societies, conclusive measures and types of punishments for specific offenses is far-fetched. Hence, it seems sensible to adopt something like Hegel’s contextual proposal. However, his reflections on the importance of history and circumstances regarding proportionality and types of punishment can only work as the beginning of an adequate answer. Indeed, as it stands, there is nothing in his proposal that may impede it from being hijacked by undesirable consequentialist considerations on the question of proportionality. For example, in a time different from ours, a rational and decent consequentialist judge could conclude, in consistency with Hegel’s view, that given his society’s current circumstances, not only the stability but also the very survival of society demands torturing terrorists in the public square. He could defend this conclusion by expressing that this is what “equality of value” requires in a time like his. To be sure, Hegel’s account may have the conceptual tools to advance an answer that would avoid undesirable outcomes such as this, however, as it stands, it is unclear how this solution would proceed.
In 1939, J.D. Mabbot stated: “the retributive view is the only moral theory except perhaps psychological hedonism which has been definitely destroyed by criticism” (Mabbot 1939, p. 152). Indeed, up to the mid-twentieth century, the established view on punishment was some version of consequentialism, whereas retributivism was dismissed as something akin to superstition. The panorama is now very different. Since the last years of the 1960s, retributivism has come to life again and became an influential form of justification of punishment.
In essence, current retributivism maintains many of the main claims found in traditional retributivist ideas. Some of those claims have been explored here, namely, present punishment can be inflicted on an offender only because he deserves it due to his past offense; wrongdoers must not be used as mere means for achieving a social end; the amount of punishment that can legitimately be inflicted upon an offender depends on some feature of the wrong committed. These are retributivist considerations that, it is fair to say, are well-established principles in most plausible theories of punishment, and rightly so. They adequately capture widespread intuitions about punishment and the criminal justice system in general.
However, the virtues of traditional retributivism should not make us forget the difficulties and gaps we have encountered in the process of exposing this theory. Before finishing, it is worth recapping some of them.
We have seen that traditional retributivism works well as a type of justification of punishment. However, as Hegel himself realizes, this justification cannot be considered, nor successfully grounded, in isolation from wider state institutions and social circumstances. In particular, a comprehensive account of punishment and criminal justice must provide a sufficiently well-defined account of moral and political theory. This is, pace Hegel’s suggestions, something that traditional retributivism does not advance in an adequate detail or with precision. (For a contemporary attempt to integrate the justification of punishment with broader political and moral theory, see Matravers 2000).
Retributivism in general should also make additional efforts to avoid the charge of advancing an account of punishment that is utterly insensitive to consequences. Critics have asked, with reason, what is the point of punishment – an expensive and morally problematic practice – if it does not bring about any further good. When detached from any positive consequences, is not punishment a mere expression of revenge or uncivilized practices? Without having to deny the core premise of this objection, traditional retributivism may respond that this criticism is ill grounded for two different reasons. First, in the course of this research paper it has been mentioned that retributivism is capable of including nonretributivist considerations as part of the justification of punishment. Thus understood, it is not true that traditional retributivism disregards consequences all the way, but rather that it does not locate them as the first and main element in the justification of punishment. Second, traditional retributivists seem to believe that punishment does produce a good, indeed, a significant one. This is especially clear in the case of Hegel: punishment reaffirms right, which in turn is at the basis of the existence of the civil society. Thus understood, punishment is necessary for the maintenance of the polity. Such is the good, not a trivial one, to which punishment contributes (notice that although in this sense Hegel’s account is teleological, his justification of punishment is still strongly non-consequentialist). Be that as it may, it is far from clear how these considerations would suffice or be convincing enough. A plausible justification of punishment must not only take consequences into account, but it also needs to emphasize the relevant type of consequences and locate them in the right place within the theory.
Finally, although part of the appeal of traditional retributivism derives from its insistence on the connection that must exist between the present punishment and the past offense, the details of this aspect of retributivism are left very much underdeveloped. The lex talionis, in its most plausible formulation, only indicates the need of preserving the relevant connection between punishment and crimes, but it does not tell us much about how to establish this connection. In turn, although affirming the obligation we have to respect the dignity of the offender in sentencing, Kant offers little insight into this issue. In the case of Hegel, things are not very different. He only tells us that this is a matter of detail to be considered in the social and political circumstances in which punishment is effectuated. As they stand, none of these sensible suggestions are very helpful. They work as general guidelines, but do not provide sufficient grounds to direct our practices.
Nothing of this is to say that we should dismiss traditional retributivism. Indeed, it is unclear whether any alternative justification of punishment would do much better than retributivism in these and other issues. Moreover, the difficulties noticed here are not necessarily insurmountable, and retributivism may well develop (and indeed has developed) answers to many of these difficult and problematic issues.
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