Abstract
This paper offers a response retributive theory of punishment, taking the role of the punisher as well as the relations between the parties to punishment to be central to retributive justification. It proposes that punishment is justified in terms of the ethics of appropriate response, and more precisely, in terms of the duty agents have to dissociate from the devaluation inherent in the culpable wrongdoing of others. The paper demonstrates that on such account, while the harm and suffering involved in punishment are rightly imposed, they are not good, grounding a further duty to mitigate our retributive practices. The result is a moderate vision of retributive justification, which has the resources to justify, not only criminal punishment, but punishment as imposed across a wide variety of relations: private, institutional and political.
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23 July 2021
A Correction to this paper has been published: https://doi.org/10.1007/s10982-021-09416-8
Notes
Michael Moore, ‘Justifying Retributivism’, Israel Law Review 27 (1993): pp. 15–49, p. 19. But see David Dolinko, ‘Retributivism, Consequentialism, and the Intrinsic Goodness of Punishment’, Law and Philosophy 16(5) (1997): pp. 507–528, p. 521. For objections to both, see Leo Zaibert, Punishment and Retribution (Ashgate Publishing, 2006), p. 203.
C.L. Ten, Crime, Guilt, and Punishment (Oxford University Press, 1987), p. 46; Douglas Husak, ‘Retributivism In Extremis’, Law and Philosophy 32(1) (2012): pp. 3-31, p. 4; R.A. Duff, Punishment, Communication, and Community (Oxford University Press, 2001), p. 3.
See e.g. Mitchell Berman, ‘Two Kinds of Retributivism’, in Duff and Green (eds.), Philosophical Foundations of Criminal Law, (Oxford: Oxford University Press, 2011), p. 443.
Retributivism may alternatively be formulated in deontic terms.
H.L.A. Hart, Punishment and Responsibility (Clarendon Press, 1968), pp. 234–235.
Ted Honderich, Punishment (Harcourt, Brace & World, 1970), p. 60. David Boonin, The Problem of Punishment (Cambridge University Press, 2008), p. 86.
Herbert Morris, ‘Persons and Punishment’, The Monist 52(4) (1968): pp. 475–501. Morris does not explicitly appeal to desert, justifying punishment in terms of rights rather than intrinsic value. See also Jeffrie Murphy, ‘Three Mistakes About Retributivism’, Analysis 31(5) (1971): pp. 166–69; Wojciech Sadurski, Giving Desert Its Due (Springer, 1985); George Sher, In Praise of Blame (Oxford University Press, 2005); Richard Dagger, ‘Playing Fair with Punishment’, Ethics 103(3) (1993): pp. 473–88; Daniel McDermott, ‘The Permissibility of Punishment’, Law and Philosophy 20(4) (2001): pp. 403–32.
See e.g. Jeffrie Murphy and Jean Hampton, Forgiveness and Mercy (Cambridge University Press, 1990). But see Richard Dagger, ‘Jean Hampton’s Theory of Punishment’ APA Newsletter on Philosophy and Law 10(2) (2011): pp. 6–11; Göran Duus-Otterström, ‘Fairness-Based Retributivism Reconsidered’, Criminal Law & Philosophy 11 (2017): pp. 481–498.
For a recent treatment of non-comparative desert see Shelly Kagan, The Geometry of Desert (New York: Oxford University Press, 2012).
Or, on a Moorean version: though wrongdoing and punishment may each be negative, the organic whole that encompasses the two is more valuable than that including wrongdoing alone. Zaibert, Punishment and Retribution, pp. 206–10, 216–22 (quoting G.E. Moore, Principia Ethica, Thomas Baldwin (ed.) (Cambridge University Press, 1993)).
What wrongdoers deserve remains a matter of controversy. Berman, ‘Two Kinds of Retributivism’. It might be specified as suffering, experiencing pain, life going less well, or more attractively as punishment, or receiving one’s due.
See e.g. John Rawls, ‘Two Concepts of Rules’, Philosophical Review 64(1) (1955): pp. 4–5; Thomas Scanlon, ‘Punishment and The Rule of Law’, in Why Punish? How Much? (Oxford University Press, 2011), p. 162; Victor Tadros, The Ends of Harm (Oxford: Oxford University Press, 2011).
Zaibert, Punishment and Retribution.
For notable objections see Deirdre Golash, The Case Against Punishment (NYU Press, 2005); Honderich, Punishment; Russ Shafer-Landau, ‘The Failure of Retributivism’, Philosophical Studies 82(3) (1996): pp. 289–316; Tadros, Ibid.
Cf. Louis Pojman, ‘Merit: Why Do We Value It?’, Journal of Social Philosophy 30(1) (1999): pp. 83–102, p. 100.
Some of the constraints on how may be built into the notion of fit (e.g. if one deserves to be punished, rather than suffer). Even on such views, however, the value of punishing is derivative.
See e.g. David Dolinko, ‘Three Mistakes of Retributivism’, UCLA Law Review 39 (1991): pp. 1623–1658. PS. Ardal, Does Anyone Ever Deserve to Suffer, 91 Queens Q. 241–257, 243 (1984).
See e.g. Dolinko, Ibid.; John Kleinig, Punishment and Desert (Martinus Nijhoff, 1973), pp. 70–71.
Other accounts that appeal to a duty to respond include: Igor Primoratz, ‘Punishment as Language’, Philosophy 64 (1989): pp. 187–205; Jean Hampton, ‘An Expressive Theory of Retribution’, in W. Cragg (ed.), Retributivism and Its Critics, (Stuttgart: Fritz Steiner Verlag, 1992), pp. 1–25; Uma Narayan, ‘Appropriate Responses and Preventive Benefits’, Oxford Journal of Legal Studies 13(2) (1993): pp. 166–182; Duff, Punishment, Communication, and Community.
Cf. Jean Hampton, ‘Correcting Harms versus Righting Wrongs’, UCLA Law Review 39 (1992): pp. 1659–1702.
This illustrates inadequate response in private relations. Responses can likewise be inadequate in the public sphere. See e.g. People v. Turner, No. B1577162 (Cal. Super. Ct. May 30, 2016); and Section V, infra.
Wrongdoing might be fleshed out in different ways. It might be taken to consist in action that involves: (1) a failure to respect the moral worth of others; (2) an affront to something of value, (human life, liberty, autonomy, etc.), (3) a violation of rights, (4) a failure to respond to relevant moral reasons or act in accordance with applicable duties or norms, or some other formulation. I do not here commit to any of these frameworks. I proceed following the first conception.
See Stephen Darwall, The Second-Person Standpoint (Harvard University Press, 2006); Victor Tadros, The Ends of Harm, (Oxford University Press, 2011); John Gardner, ‘What Is Tort Law For? Part 1’, Law and Philosophy 30(1) (2011): pp. 1–50.
Parallels to this idea may be found in Feinberg’s ‘disavowel of the wrong’ and in victim-vindication views. Joel Feinberg, ‘The Expressive Function of Punishment’, in Doing & Deserving (Princeton University Press, 1970), pp. 98–105; Hampton, ‘An Expressive Theory of Retribution’; Fletcher, ‘The Place of Victims’. Feinberg’s notion is expressive, however, whereas that herein is performative. See note 53, infra.
Notice that on the proposed view, punishment is a broad phenomenon, encompassing a broader set of burdensome responses (not merely hard treatment) than generally under consideration in the punishment literature. Response retributivism has the capacity to justify this broad set of punitive behaviors. See III.D.b, V.C, infra.
On this account, in some cases holding reactive attitudes may suffice for appropriate response. On reactive attitudes see P.F. Strawson, ‘Freedom and Resentment’, Proceedings of the British Academy 48 (1962), pp. 1–25. An important distinction between the arguments defended here and those emphasized by Strawson and the subsequent literature on reactive attitudes is that the latter merely claims that such reactions are beyond rational critique, whereas the argument herein is that it can be wrong not to react dissociatively. Cf. Christopher Bennett, The Apology Ritual (Cambridge University Press, 2008), p. 67. Scanlon’s earlier work similarly argues that those subjected to blame-related responses ‘cannot complain’. More recently, however, Scanlon has argued that blaming responses involving withdrawals of goodwill can be morally appropriate. Thomas Scanlon, ‘Giving Desert Its Due’, Philosophical Explorations 16(2) (2013): pp. 101–116. Scanlon, ‘Punishment and The Rule of Law’. Yet, even in his later writing, Scanlon, like Strawson (and the standard blame and expressivist literature), presumes a categorical difference between blame and punishment, such that the justification of the former does not address the latter. On the account developed here, each of these is understood to be a token along a spectrum of potentially appropriate responses, each of which can be justified on dissociative grounds. See text accompanying notes 55–57, infra. It is beyond the scope of this paper to offer an in-depth analysis of the relationship between response retributivism and the post-Strawsonian blame and reactive attitudes literature.
This is to raise a red flag with respect to interpersonal silence in the face of the wrongdoing, even with respect to those who promote the relevant value outside the relations.
Thus, the duty to dissociate is distinct from duties of repair and expression, as these are satisfied by interactions with the victim or public. See III.D infra. This is not an argument for logical entailment. One could insist that there is no moral significance to continuing relations as before (an irrelevance thesis). One could likewise insist there is no moral significance to standing by while another drowns. The proposal is, however, that hyper-individualistic views that refuse to recognize the relevance of our relations with others for our moral duties essentially posit ‘man’ as a normative island, erecting a sphere of immunity which leaves agents open to reaping the benefits of involvement with others, on the one hand, without bearing any of its burdens, on the other; whereas in fact, involvement with others can render agents vulnerable to a varity of responsibilities, including with respect to the wrongdoing of those with whom they stand in relevant relations, as proposed by the duty to dissociate.
While the proposed account does not rely on how we answer the question - to whom is the duty owed - I take it to be first and foremost a non-directed duty (like the primary duty), though in any concrete case, there may also be a duty owed to the victim.
That is, presuming we are in a relationship with the wrongdoer that requires dissociation from such wrong. See V, infra.
Thus, what is constitutive of dissociation may not consist in expressions, though in the typical case, dissociating with a wrong will not only meet our primary moral duty to respect others, but further (and peripherally) also express.
Even a repentant wrongdoer who welcomes the response will do so precisely in virtue of its appropriate burdensomeness. This burdensomeness is not a contingent feature of appropriate response or a mere side-effect. It is partly because of its burdensomeness that the act becomes appropriate. (Nonetheless, it is not necessary that the response be experienced subjectively as burdensome to count as such as is the case with respect to punishments generally).
See III.C.b and IV, infra, on vehicles of retribution.
For more on the burdensomeness of such responses, see e.g. Pamela Hieronymi, ‘The Force and Fairness of Blame’, Philosophical Perspectives 18 (2004): pp. 115–148.
This is reminiscent of Scanlonian blame. While relationality is central to both accounts, per Scanlon, to blame is to hold an attitude towards another that reflects an impaired relation, while herein wrongdoing calls for modifying the relations (irrespective of whether the wrong impaired the relations). See T.M. Scanlon, Moral Dimensions (Harvard University Press, 2009), ch.4. The appropriate response will, one hopes, elicit a further response in the wrongdoer and return the relations to good working order.
For a recent account see Martha Nussbaum, Anger and Forgiveness (Oxford University Press, 2016).
Alternatively, conceiving of responses such as pity as responsive to robust culpability seems to give up on the distinctive normative significance of robust culpability altogether.
See Morris, ‘Persons and Punishment’. Cf. Nussbaum, Anger and Forgiveness.
This is the view held by Hegelian theories of punishment. See also Bennett, The Apology Ritual.
See similarly, Douglas Husak, ‘Why Punish the Deserving?’, Noûs 26(4) (1992): pp. 447–64.
It seems plausible that the appropriate response of some (e.g. wherein the parties are broadly strangers) will be exhausted by affective responses, suspension of goodwill and refraining from endowing benefits. Cf. Strawson, ‘Freedom and Resentment;’ Scanlon, Moral Dimensions. See Section V, infra.
Cf. Kleinig, ‘Punishment and Moral Seriousness’; Von Hirsch, Deserved Criminal Sentences.
Though the distinction between censure and sanction is often cited and sometimes presented as binary, it is not clear that censure does not in fact always include some element of hard treatment.
One might suggest that the classic elements are relevant to ordinal proportionality, while the latter play a role in determining cardinal proportionality. Cf. Von Hirsch, Deserved Criminal Sentences.
Cf. Matt Matravers, ‘Proportionality Theory and Public Opinion’, in Ryberg and Roberts (eds.), Popular Punishment, (Oxford University Press, 2014), pp. 39–42.
This is not because what matters is expression. What matters is adequate engagement with what the wrongdoer has done, which (1) will naturally make a statement, and (2) may under particular circumstances require mere expression. See further, III.D, infra.
Given the relational context, the response must be intelligible to the parties as one (aimed at) meaningful dissociation. In criminal punishment, given the publicity and transparency expected of state action, the response must be intelligible as dissociative to the public. Further, if political theory posits a significant connection between the state and public, this is further grounds for requiring public intelligibility. In private relations, however, the mechanics of the relations may be so particular as to be unintelligible to the public while nonetheless satisfying the conditions for successful dissociation.
Thus, though the view may seem to render harm contingently required for appropriate response, it is not clear that this is the case. For while milder vehicles of dissociation may be adequate, this will only be the case where the milder measures become themselves dissociative, in which case the vehicle will necessarily be understood to be relevantly serious, and thus would be, in a broad sense, harmful.
This is not to deny any particular account of the relations between value and reasons. Rather, under certain circumstances, the reason not to generate the bad state of affairs does not practically implicate the question of how one ought to act, e.g. because the reason not to punish is excluded. See Joseph Raz, Practical Reason and Norms (Princeton University Press, 1990), p. 39.
While retributivism is often associated with the glorification of suffering, to be retributive, a view need not take suffering to be the desert object. See note 11.
Punishment is rather (partly) constitutive of dissociation. Insofar as the respondent correctly evaluates her reaction (understands the gravity of the culpable wrong and her response), punishment will be dissociative; there are no further causal facts that impact its success.
Most prominently in communicative theories. See Duff, Punishment, Communication and Community.
Austin describes a class of utterances, ‘performative utterances’, which perform an action rather than ‘just saying something’, to be contrasted with constative utterances, whose function it is to make a statement. J.L. Austin, et.al. How to Do Things with Words (Harvard University Press, 1975), pp. 4–7. While it is notable that one may act, rather than merely assert, through speech, the possibility of performing an action through action should be obvious. Yet some expressive accounts obscure this simple fact in the case of punishment by focusing on its expressive function.
One might say that while on expressive views there is a fact of the matter–disapproval–that must be expressed, on the dissociative view, it is the fact of the matter that is constituted by the response. At times, Duff appears to move in this direction, however, because his communicative view focuses on expression, he misdiagnoses the problem as one of insincerity. Duff, Punishment, Communication, and Community, p. 28.
Andrew von Hirsch, Censure and Sanctions (Clarendon Press, 1993), Ch. 2 (deterrence); Duff, Punishment, Communication, and Community (secular penance). Kleinig sees the two as similarly justified, yet presumes that the point and justification of punishment lie merely in expression. John Kleinig, ‘Punishment and Moral Seriousness’, Israel Law Review 25 (1991): pp. 401–421.
While a conventionalist answer is also available to the expressivist to explain the resort to hard treatment, there is no similar default mode of dissociation to be puzzled over. Moreover, the success of expressive conventionalism does not rely on the same facts as the success of the response-retributive conventionalism. For the former, it must be that one cannot express proportionate condemnation if one does not resort to hard treatment. For the latter, it must be that in the absence of the burdensome response, one fails to respect others.
Some retributive vehicles require further legitimation in virtue of features that make them uniquely problematic, e.g. where they are rights-violating. In such cases, more will be needed than the proposed theory to justify such punishments. Yet, this is not because the view fails to offer an in-principle justification of punitive responses, but because there are further constraints on using such means. See Section V.C.
Response retributivism can further satisfy the motivation that underlies the move towards ‘audience independent’ expressivism, while avoiding its pitfalls. See Bill Wringe, ‘Rethinking Expressive Theories of Punishment’, Philosophical Studies 174(3) (2017): pp. 681–708.
Jean Hampton, ‘The Retributive Idea’, in Forgiveness and Mercy (Cambridge University Press, 1988), p. 125.
Hampton, ‘An Expressive Theory of Retribution’, p. 19.
But see Heather Gert et.al., ‘Hampton on the Expressive Power of Punishment’, Journal of Social Philosophy 35(1) (2004): pp. 79–90, for an epistemic rather than linguistic-symbolic interpretation.
Fienberg comes closest to making this point, though without defending it, when he proposes failing to ‘disavow’ involves complicity, an idea he attributes to Kant.
This need not be inconsistent with a non-expressive reading of Hampton’s account; yet it would seem unfaithful to clear away the fundamentally expressive aspect thereof.
For further elaborations on divergences see e.g. notes 31, 54 and 56.
Cf. Matravers, ‘Proportionality Theory and Public Opinion’, 45 (on ratcheting down); Duus-Otterström, ‘Retributivism and Public Opinion’, (on penal nudging). These follow John Braithwaite and Philip Pettit, Not Just Deserts (Oxford: Oxford University Press, 1992); Von Hirsch, Censure and Sanctions, pp. 36–46 (on decremental strategies).
What if we have not met our duty to mitigate our retributive practices? Provisionally I suggest that the duty to respond adequately – through the harsher means currently necessary given the prior failure – is not vitiated. Yet, we violate our broader duty to mitigate our vehicles of retribution.
Mitchell Berman, ‘Rehabilitating Retributivism’, Law and Philosophy 32(1) (2013): pp. 88–89.
See note 7.
Cf. Scanlon, Moral Dimensions. The specifics of particular relationships will have further implications (as will the complex reasons that apply within relationships, which may generate all-things-considered reasons not to impose pro tanto justified punishment). At a lower resolution, however, basic roles and relationships can include reference to obligations. Though there is much room for pluralism with respect to roles, there can be grounds for criticizing the absence of certain responsibilities within relations (e.g. a view of parenthood that does not require caring for the child’s well-being). This paper suggests that political theories may be criticized if they fail to recognize appropriate response to politically relevant wrongdoing as a proper role of the state.
Cf. R.A. Duff, ‘Relational Reasons and the Criminal Law’, in Green and Leiter (eds.), Oxford Studies in Philosophy of Law (2013), p. 175; Adil Ahmad Haque, ‘Group Violence and Group Vengeance’, Buffalo Criminal Law Review 9(1) (2005): pp. 273–328.
Russ Shafer-Landau, ‘Retributivism and Desert’, Pacific Philosophical Quarterly 81(2) (2000): pp. 189–214.
Shafer-Landau, p. 192.
Zaibert's, Punishment and Retribution is a notable exception.
This need not be the case if we take intra-personal punishment to be a standard form of punishment.
There is a long tradition of defining punishment to harms imposed by an authority. See, e.g. Antony Flew, ‘The Justification of Punishment’, Philosophy 29 (1954): pp. 85–87; S.I. Benn, ‘An Approach to the Problems of Punishment’, Philosophy 33 (1958): pp. 325–341; Hart, Punishment and Responsibility, pp. 4–5.
This challenge might be met in one of two ways. An account of political exceptionalism that vindicates the state’s unique authority to engage in such retributive practices might be provided. Alternatively, the political exceptionalism thesis can be rejected and supplemented with (1) an account of why it is that such modes of punishment are not available to non-state actors, or (2) why non-state punishment can impose such deprivations.
Acknowledgements
I am indebted to Daniel Markovits, Scott Shapiro and Gideon Yaffe, as well as David Enoch and Judith Resnik for their valuable engagement with this paper. I would also like to thank Mitch Berman, Miri Gur-Arye, Alon Harel, Ira Lindsay, Alec Walen and the two anonymous reviewers for their helpful comments on previous drafts. I benefitted greatly from conversations with Vincent Chiao, Jules Coleman, Stephen Darwall, Antony Duff, Beth Henzel, Tatjana Hornle, Shai Lavi, Danny Maggen, Sandra Marshall, Alex Sarch, Tim Scanlon, Jonathan Simon and Victor Tadros. Many thanks to the participants of Yale Moral Philosophy Working Group, the Legal Philosophy Workshop, the IIAS Working Group on the Legitimization of Modern Criminal Law and the Tel Aviv University Faculty Workshop.
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The original online version of this article was revised: In the original publication, under the heading "B. Dissociation" second paragraph, 5th sentence was published incorrectly. The sentence was corrected.
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Dahan Katz, L. Response Retributivism: Defending the Duty to Punish. Law and Philos 40, 585–615 (2021). https://doi.org/10.1007/s10982-020-09386-3
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DOI: https://doi.org/10.1007/s10982-020-09386-3