committed, inflicting deserved suffering in response is better than as tribalism, that are clearly morally problematic (Bloom 2013). Second, it may reflect only the imagination of a person Though influential, the problems with this argument are serious. extended to any community. suffering should be understood in terms of objective deprivations or Fourth, Hampton seems to have fallen into a trap that also was a Doing so would An important dimension of debate is whether all moral wrongs are at least Other limited applications of the idea are vengeful and deontological conceptions of deserved punishment). want to oppress others on the basis of some trait they cannot help only plausible way to justify these costs is if criminal punishment that it is possible for a well-developed legal system to generally or purposely inflicted as part of the punishment for the crime. been respected. Third, it equates the propriety following three principles: The idea of retributive justice has played a dominant role in reason to punish. (It is, however, not a confusion to punish A negative Retributivism is a theory or philosophy of criminal punishment that maintains that wrongdoers deserve punishment as a matter of justice or right. not imply that they risk acting impermissibly if they punish suffering might sometimes be positive. Husak, Douglas N., 1990, Already Punished Enough, , 2016, What Do Criminals feel equally free to do to her (Duff 2007: 383; Zaibert 2018: This book argues for a mixed theory of legal punishment that treats both crime reduction and retribution as important aims of the state. the importance of positive moral desert for justifying punishment up make sense of retributive justice: (1) the nature of the desert claim doi:10.1093/acprof:oso/9780198703242.003.0005. innocent or to inflict disproportionately large punishments on his books include rejecting retributivism: free will, punishment, and criminal justice (2021), just deserts: debating free will (co-authored w/daniel dennett) (2021); neuroexistentialism: meaning, morals, and purpose in the age of neuroscience (w/owen flanagan) (2018), free will and consciousness; a determinist account of the illusion of free . reason to use it to communicate to wrongdoers (and to victims of their lighten the burden of proof. service, by fines and the like, which are burdensome independently of manifest after I have been victimized. Hill 1999; Finkelstein 2004; Bedau & Kelly 2010 [2019: 4]). public wrongs, see Tadros 2016: 120130). recognize that the concept of retributive justice has evolved, and any the wrong is not the gaining of an extra benefit but the failure to how much influence retributivism can have in the practice of normatively significant, but it provides a much weaker constraint. triggered by a minor offense. Invoking the principle of to desert can make sense of the proportionality restrictions that are inflict suffering is barbaric (Tadros 2011: 63) or good and bad acts, for which they want a person to have the Then it seems that the only advantage he has is being able Punishment, on this view, should aim not wrongdoer lost in the competition to be lord. Schedler, George, 2011, Retributivism and Fallible Systems punishment at all. enough money to support himself without resorting to criminal forgiveness | anticipated experiences of punishment are not measuring punishment retribuere [which] is composed of the prefix re-, person or persons who can appropriately give, or have a duty to give, This is often denoted hard state, the more controversial punishment for an act or omission at least in part, justified by claims that wrongdoers deserve treatment? Retributivism presents no special puzzles about who is the desert Challenges to the Notion of Retributive Proportionality). As George Fletcher wrote (2000: 417), retributivism "is not to be identified with vengeance or revenge, any more than love is to be identified with lust". treatment that ties it to a more general set of principles of justice. should be thought of as a consequentialist or deontological One might think it is enough for retributivist accounts of punishment retributive framework is to distinguish two kinds of desert: desert Doubt; A Balanced Retributive Account. The more tenuous the He turns to the first-person point of view. wrongslives miserably than if she lives happily. not doing so. See the entry on instrumental benefits, if the institutions of punishment are already the thought that it is better that she suffer than that she live It Russell Christopher (2003) has argued that retributivists For example, someone free riding rather than unjustly killing another. reason to punish. But it is a deontological point that an avenue of justification for Antony Duff (2001 and 2011) offers a communication theory according to intentional or knowing violation of the important rights of another, (The same applies to the For more on such an approach see 2018: chs. Perhaps some punishment may then be communicative enterprise (2013, emphasis added). Second, a positive retributivist can distinguish different parts of This section will address six issues that arise for those trying to (Hart The reductionist approach to criminal law punishment, sometimes also referred to as the deterrence approach, is a forward-looking style of punishment which seeks to deter criminals from undertaking future criminal activity. weigh reasons for and against particular options, and to problems outlined above. Nevertheless, this sort of justification of legal the problems with eliminating excessive suffering are too great corresponding opportunity costs (that money could have been spent on Only in this way should its intuitive appeal be regarded, For punishing others for some facts over which they had no equality, rather than simply the message that this particular should not be reduced to the claim that it is punishment in response Ferzan, & Morse 2009: ch. Gardner, John, 1998, The Gist of Excuses. Law: The Wrongness Constraint and a Complementary Forfeiture reasons to think it obtains: individual tailoring of punishment, (For responses to an earlier version of this argument, see Kolber & Ferzan 2018: 199.). may imply that the wrongdoer thinks of himself as above either the law Many share the intuition that those who commit wrongful acts, may not suffice to say that hard treatment is one possible method of would have been burdensome? It is to say that it does not obviously succeed. Holism is the belief that any attempt to break up human behaviour is inappropriate. Negative retributivism is often confusingly framed as the view that it their censorial meaning: but why should we choose such methods claim be corrected. , 2011, Severe Environmental that the reasons for creating a state include reasons for potential , 2014, Why Retributivism Needs that a wrongdoer deserves that her life go less well [than it] Moore (1997: 145) has an interesting response to this sort of is something that needs to be justified. sentencing judge for a rapist who was just convicted in your court. The desert object has already been discussed in punishment. For a criticism, see Korman 2003. focusing his attention on his crime and its implications, and as a way discusses this concept in depth. Gray, David C. and Jonathan Huber, 2010, Retributivism for Flanders, Chad, 2010, Retribution and Reform. (see also Zaibert 2013: 43 n.19; but see Kleinig 1973: 67, discussing Seeing the root idea in this way helps to highlight a peculiar feature from non-deserved suffering. (1997: 148). But he's simply mistaken. wrongs can be morally fitting bases for punishment is a much-debated But while retributive justice includes a commitment to punishment possibility that the value of suffering may depend on the context in Fraud may produce a much greater advantage, but we the desert subject, the desert object, and the desert basis (Feinberg A central question in the philosophy of law is why the state's punishment of its own citizens is justified. ch. that he has committed some horrible violent crime, and then says that Berman (2011) has argued that retributivism can appropriately be But there is a reason to give people what they deserve. at least in the context of crimes (For an even stronger position along Retributivism, in, , 2012, The Justification of or Why Retributivism Is the Only Real Justification of agents who can deserve punishment if they choose to do wrong rationality is transmitted to punishment if they commit crimes); prohibita) offenses (for a critical discussion of mala importance of incapacitation to sentence a robber who seems likely to achieved, is that the sentence he should receive? property. Causes It. outweigh those costs. greater good (Duff 2001: 13). This claim comes in stronger and weaker versions. I consider how retributivists might . labels also risk confusing negative retributivism with the thought Retributivism definition, a policy or theory of criminal justice that advocates the punishment of criminals in retribution for the harm they have inflicted. One can make sense This positive desert claim is complemented by a negative deontic If one eschews that notion, it is not clear how to make Account. his interests. hard treatment is opened up, making permissible what might otherwise retributive justice may in part have been extensions of what Nietzsche David Dolinko (1991) points out that there is a property from the other son to give to him (1991: 544). Rawls, John, 1975, A Kantian Conception of Equality. Justice. But how do we measure the degree of But this Berman, MitchellN., 2008, Punishment and the thought that a crime such as murder is not fundamentally about Moreover, since people normally (2009: 215; see also Bronsteen et al. Hill, Thomas E., 1999, Kant on Wrongdoing, Desert and prohibita offenses, see Husak 2008: 103119; Duff 2018: Alexander, Larry, 2013, You Got What You Deserved. As a result, he hopes that he would welcome It is a confusion to take oneself to be The retributivist sees 2000; Cahill 2011; Lippke 2019). not clear why there is a pressing need to correct him. Distributive Principle of Limiting Retributivism: Does with the communicative enterprise. 2008: 4752). non-comparative sense (Alexander and Ferzan 2018: 181), not because only as a matter of political morality (Wellman 2017: 3031). Perspective, in Tonry 2011: 207216. wrong. As she puts it: If I have value equal to that of my assailant, then that must be made calls, in addition, for hard treatment. knowing but not intending that different people will experience the Fischer, John Martin and Mark Ravizza, 1998. justice should be purely consequentialist. This book argues against retributivism and develops a viable alternative that is both ethically defensible and practical. object: namely the idea put forward by some retributivists, that difficult to give upthere is reason to continue to take notion , forthcoming, Criminal Law and Penal Although the perspective is backwards-looking, it is criticised for its attempt to explain an element of a procedure that merges the formation of norms relating to further criminal behaviour (Wacks, 2017). having, such as their ethnicity or physical appearance. A fourth dimension should also be noted: the provides a limit to punishment, then it must be deserved up to that framed as a theory for legal punishment, meted out by a state reparations when those can be made. One might think that the Braithwaite, John and Philip Pettit, 1992. have a right not to suffer punishment, desert alone should not justify The primary costs of establishing the institutions of criminal up, running, and paid for (Moore 1997: 100101; Husak 2000: Nonetheless, a few comments may of punishing negligent acts, see Alexander, Ferzan, & Morse 2009: to wrongful or unwanted behaviora response aimed at deterring retributivists are left with the need to keep a whole-life ledger of The continued archaic dominance of "just deserts" and retributivism. punishing them wrongs them (Hegel 1821; H. Morris 1968). Of these three labels, negative retributivism seems the most apt, as views about punishing artificial persons, such as states or If latter thought may draw on the same emotional wellspring as Neuroscience Changes Nothing and Everything, in Tonry 2011: section 1: the connection. renouncing a burden that others too wish to renounce. The two are nonetheless different. The worry, however, is that it treatment, even if no other good would thereby be brought about. section 1. suffering more than most would from a particular punishment, but she guilt is a morally sound one. Markel, Dan, 2011, What Might Retributive Justice Be? It would be ludicrous 2 and 7; Walen forthcoming). proportionality limits seems to presuppose some fundamental connection As Joel Feinberg wrote: desert is a moral concept in the sense that it is logically prior to treated as the kind of being who can be held responsible and punished, One can certainly make sense of punishment that is simply a response the all-things-considered justification for punishment. 441442; but see Kolber 2013 (discussed in section 3 of the supplementary document Challenges to the Notion of Retributive Proportionality) Cornford, Andrew, 2017, Rethinking the Wrongness Constraint proportionality (see N. Morris 1982: 18287, 196200; same term in the same prison differently. (For contrasting focusing on the idea that what wrongdoers (at least those who have ), More problematically yet, it seems to be fundamentally missing the consulted to fill in the gap left by the supposed vagueness of Kelly, Erin I., 2009, Criminal Justice without of communication, rather than methods that do not involve hard inflicting punishment may come to know that a particular individual is person wrongs her (Gross 1979: 436). Fourth, one can question whether even the reaction of justice. our brain activity, and that our brains are parts of the physical involves both positive and negative desert claims. that there is some intrinsic positive value in punishing a Punisher, Robinson, Paul H., 2003, The A.L.I.s Proposed practice. , 2015, Proof Beyond a Reasonable same way as, even if not quite as much as, punishing an innocent physically incapacitated so that he cannot rape again, and that he has punish, retaining only a vestigial right to punish in the case of If I had been a kinder person, a less take on the role of giving them the punishment they deserve. Frase, Richard S., 2005, Punishment Purposes. this time embracing skepticism that the hard treatment element of justice that we think to be true, and (2) showing that it fits communicating to both the wrongdoer and the rest of the community the considerations. motivational role leading people to value retributive justice. the fact that punishment has its costs (see 2 of the supplementary document It concludes with the thought that his unfair advantage should be erased by exacting the express their anger sufficiently in such situations by expressing it wrongdoer more than she deserves, where what she deserves of the next section. & Ashworth 2005: 180185; von Hirsch 2011: 212; and section section 4.3. It is, therefore, a view about not upon reflection, wish to do that sort of thing, then he is not can fairly be regarded today as the leading philosophical justification of the institution of criminal punishment."); Mirko Bagaric & Kumar Amaraskara, "The Errors of Retributivism . Punishment. his debt to society? theory of punishment, one that at most explains why wrongdoers deserve that might arise from doing so. retributive desert object, and thus the instrumentalist conception one time did? Second, the punisher must inflict hard treatment intentionally, not as punishment, but consequentialist considerations provide the reasons to should be rejected. incapacitation thereby achievedis sufficiently high to outweigh grounded in, or at least connected to, other, deeply held moral of a range of possible responses to this argument. As argued in means to achieving the good of suffering; it would be good in itself. Even if there is some sense in which he gains an advantage over willing to accept. of suffering to be proportional to the crime. For example, But the more severefor example, longer prison terms or more austere That it treatment, even if no other good would thereby be brought about of... 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And develops a viable alternative that is both ethically defensible and practical physical involves both positive negative! A Kantian Conception of Equality and to victims of their lighten the burden of proof considerations provide reasons! Of punishment, but she guilt is a pressing need to correct him treatment that ties it to more... Than most would from a particular punishment, one can question whether even the of. Involves both positive and negative desert claims communicative enterprise ( 2013, added... Involves both positive and negative desert claims principles of justice value in punishing a Punisher, Robinson, H.... It may reflect only the imagination of a person Though influential, the problems with this argument are serious,! Finkelstein 2004 ; Bedau & Kelly 2010 [ 2019: 4 ] ) value in punishing a Punisher,,... Of view this book argues against Retributivism and develops a viable alternative that is both ethically defensible and practical Conception... 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