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Retributive Punishment — Ideals and Actualities

Published online by Cambridge University Press:  16 February 2016

Antony Duff
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A consequentialist holds that systems of criminal punishment must be justified, if they can be justified at all, by their consequential benefits. It is a contingent fact, if it is a fact at all, that these benefits are most efficiently attained by a system of punishment, and by punishments which ordinary moralists would regard as just; and a thorough-going consequentialist must be ready in principle to justify punishments which many would condemn as unjust. A retributivist, on the other hand, insists that the justice of a system or instance of punishment is essential to its justification; and that the demands of justice cannot be reduced to those of consequential utility.

Retributivist accounts of punishment come in a variety of forms: we must distinguish those who insist only that guilt is a necessary, not a sufficient, condition of justified punishment from those who insist that punishment must be fully justified by reference to a past offence; and amongst the latter we find various accounts of how it is that an offence justifies or requires punishment. But essential to any retributivist account is the claim that an adequate justification of punishment must cite not, or not only, its consequential benefits, but its relationship to a past offence: it is a non-consequentialist requirement of justice that punishment must be of an offender, for an offence; that only the guilty may be punished, and that the severity of their punishments should be limited, if not completely determined, by the seriousness of the offences for which they are punished.

Type
Theories of Punishment
Information
Israel Law Review , Volume 25 , Issue 3-4 , Summer–Autumn 1991 , pp. 422 - 451
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1991

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References

1 See Cottingham, J. G., “Varieties of Retribution” (1979) 29 Philosophical Q. 238CrossRefGoogle Scholar.

2 I am returning here to some questions which I discussed in Trials and Punishments (Cambridge U. P., 1986)Google Scholar, in the hope of getting a little clearer about them.

3 Compare Murphy, J. G., “Marxism and Retribution” (1973) 2 Philosophy and Public Affairs 217Google Scholar; reprinted in Murphy, , Retribution, Justice and Therapy (Reidel, 1979) 93CrossRefGoogle Scholar.

4 Plato, , Republic (trans. Lindsay, , Dent, 1976) Book IX, 592bGoogle Scholar.

5 See Trials and Punishments, supra n. 2, at chap. 3.

6 On the contrast between internal and external critiques of law, see Lacey, N., “Discretion and Due Process at the Post-Conviction Stage”, in Dennis, I. H., ed., Criminal Law and Justice (Sweet & Maxwell, 1987) 221Google Scholar.

7 See Trials and Punishments, supra n. 2, at chap. 4.2, and chap. 6.3.

8 For examples of such utilitarian reformers, see Wootton, B., Crime and the Criminal Law (Stevens, 1963)Google Scholar; Walker, N. and McCabe, S., Crime and Insanity in England (Edinburgh U. P., 1973) vol. II, pp. 101–2Google Scholar.

9 See Nagel, T., “War and Massacre” (1972) 1 Philosophy & Public Affairs 123Google Scholar; reprinted in Nagel, , Mortal Questions (Cambridge U. P., 1979) 53Google Scholar.

10 “Marxism and Retribution”, supra n. 3.

11 See Trials and Punishments, supra n. 2, at chap. 4; I am grateful to Stanley Kleinberg for discussions on the topic of this section.

12 Bail Act 1976; see Hampton, C., Criminal Procedure (Sweet & Maxwell, 3rd ed., 1982) 91–106Google Scholar.

13 For the definitional stop, see Quinton, A., “Punishment” (1953/1954) 14 Analysis 133CrossRefGoogle Scholar; Benn, S. I., “An Approach to the Problems of Punishment” (1958) 33 Philosophy 325CrossRefGoogle Scholar: for criticism see Hart, H. L. A., “Prolegomenon to the Principles of Punishment” in Hart, , Punishment and Responsibility (Oxford U. P., 1968) 1Google Scholar; Honderich, T., Punishment: The Supposed Justifications (Penguin, revised ed., 1984) 62–4Google Scholar.

14 See H. L. A. Hart, “Prolegomenon to the Principles of Punishment”, supra n. 13, and “Legal Responsibility and Excuses”, in Punishment and Responsibility, supra n. 13, at 28.

15 See Dworkin, R. M., “Principle, Policy and Procedure” in Tapper, C. F. H., ed., Crime, Proof, and Punishment (Butterworths, 1981) 193Google Scholar; Nozick, R., Anarchy, State and Utopia (Blackwell, 1974) 96–108Google Scholar.

16 See Nagel, “War and Massacre”, supra n. 9; Holland, R. F., “Good and Evil in Action”, in Holland, , Against Empiricism (Blackwell, 1980) 110Google Scholar.

17 See R. F. Holland, “Absolute Ethics, Mathematics and the Impossibility of Politics”, in Holland, Against Empiricism, supra n. 16, at 126.

18 See Rawls, J., “Two Concepts of Rules” (1955) 64 Philosophical R. 3CrossRefGoogle Scholar; Trials and Punishments, supra n. 2, at chap. 6.2.

19 See Schedler, G., “Can Retributivists Support Legal Punishment?” (1980) 63 The Monist 185CrossRefGoogle Scholar; Lempert, R., “Desert and Deterrence: an Assessment of the Moral Bases of the Case for Capital Punishment” (1981) 79 Mich. L. R. 1177CrossRefGoogle Scholar; Alexander, L., “Retributivism and the Inadvertent Punishment of the Innocent” (1983) 2 Law & Philosophy 233CrossRefGoogle Scholar.

20 See Dworkin, “Principle, Policy and Procedure”, supra n. 15.

21 See Trials and Punishments, supra n. 2, at 154, 159-60.

22 See Nagel, “War and Massacre”, supra n. 9.

23 See Duff, R. A., “Intention, Responsibility and Double Effect” (1952) 32 Philosophical Q. 1CrossRefGoogle Scholar.

24 See Nagel, T., “The Limits of Objectivity”, in McMurrin, S, ed., The Tanner Lectures on Human Values (Cambridge U. P., 1980) vol. I, p. 103Google Scholar.

25 Murphy, “Marxism and Retribution”, supra n. 3; for some further and second thoughts on this, see Murphy, , “Retributivism, Moral Education, and the Liberal State” (1985) 4 Criminal Justice Ethics 3CrossRefGoogle Scholar and his contribution to Murphy, J. G. and Hampton, J., Forgiveness and Mercy (Cambridge U. P., 1988)CrossRefGoogle Scholar.

26 Murphy, “Marxism and Retribution”, supra n. 3, at 110; I leave aside here the more radical criticisms which he also canvasses of the conception of human nature which underpins this account of punishment.

27 Compare Feinberg, J., “The Expressive Function of Punishment”, in Feinberg, , Doing and Deserving (Princeton U. P., 1970) 95Google Scholar.

28 See Trials and Punishments, supra n. 2, at chap. 6.5, chap. 9, chap. 10.3.

29 Aristotle, , Nicomachean Ethics (trans. Ross, , Oxford U. P., 1980) I.6, 1096b32-35Google Scholar.

30 See Murdoch, I., The Sovereignty of Good (Routledge & Kegan Paul, 1970) 62–3Google Scholar.

31 See Trials and Punishment, supra n. 2, at chap. 6.3, chap. 6.5, chap. 7.1, chap. 10.3.

32 I take this argument from Waldron, J., “When Justice Replaces Affection: The Need for Rights” (1988) 11 Harv. J. L. & Pub. Policy 625Google Scholar. I am indebted to Sandra Marshall and Anne Barr for discussions on this topic.

33 See Trials and Punishments, supra n. 2, at chap. 8.

34 Lucas, J. R., “Or Else” (1968/1969) 69 Proceedings of the Aristotelian Society 207, at 221Google Scholar. Lucas is here contrasting deterrent punishment with supposedly therapeutic treatment. I would argue that punishment as I portray it would not, ideally, be coercive or manipulative in the way that such treatment is: see Trials and Punishments, supra n. 2, at chap. 10.1.