Retributivism and the possible modes of its justification

Since I will in this chapter seek to justify the retributive theory of punishment, I will first say what such a theory is. Retributivism is the view that punishment is justified by the moral culpability of those who receive it. A retributivist punishes because, and only because, the offender deserves it. Retributivism thus stands in stark contrast to utilitarian views that justify punishment of past offenses by the greater good of preventing future offenses. It also contrasts sharply with rehabilitative views, according to which punishment is justified by the reforming good it does the criminal.

Less clearly, retributivism also differs from a variety of views that are often paraded as retributivist, but that in fact are not. Such views are typically put forward by people who cannot understand how anyone could think that moral desert by itself could justify punishment. Such persons scramble about for other goods that punishment achieves and label these, quite misleadingly, “retributivism.” The leading confusions seem to me to be seven in number.

1. First, retributivism is sometimes identified with a particular measure of punishment such as lex talionis, an eye for an eye (e.g., Wilson and Herrnstein, 1985, p. 496), or with a kind of punishment such as the death penalty. Yet retributivism answers a question prior to the questions to which these could be answers. True enough, retributivists at some point have to answer the “how much” and “what type” questions for specific offenses, and they are committed to the principle that punishment should be graded in proportion to desert; but they are not committed to any particular penalty scheme nor to any particular penalty as being deserved.