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Is Retributivism Analytic?

Published online by Cambridge University Press:  30 January 2009

Igor Primorac
Affiliation:
University of Belgrade

Extract

Most of the standard arguments against the retributive theory of punishment are hardly new. That the retributive view of punishment is but a rationalization of a primitive urge for revenge; that the retributivists, instead of providing an answer to the question about the source of our moral right to add a new evil (punishment) to an already perpetrated one (the crime), simply assert dogmatically that punishment is an intrinsic good, i.e. something that needs no further moral justification; that it is impossible to apply the lex talionis in practice; that the retributivist thesis that the criminal has a right to punishment is absurd, because the criminal himself would be the first to deny that he has any such right; that the retributive theory is incompatible with the claims of forgiveness and mercy; that the practical consequences of the theory are conservative, the theory itself being in fact an apology for the existing laws and the existing social order; that the Hegelian idea of punishment as a ‘negation’ or ‘annulment’ of crime is either unintelligible or essentially utilitarian in character–most of this had been said already in the last century, or even earlier. All these arguments are still in use.1 But in recent literature–in a number of papers published in the last twenty years or so–we find a new argument against the retributive theory. It is only natural that this particular argument should not have been used earlier: methodologically it is typical of a philosophical orientation which emerged only in our century–analytical philosophy.

Type
Articles
Copyright
Copyright © The Royal Institute of Philosophy 1981

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References

1 I attempted to refute most of them in ‘On Some Arguments Against the Retributive Theory of Punishment’, Rivista Internazionale di Filosofia del Diritto LVI (1979), and ‘Punishment as the Criminal's Right’, Hegel-Studien XV (1980).

2 I have done this in section V of ‘Utilitarianism and Punishment of the Innocent’, Rivista Internazionale di Filosofia del Diritto LVII (1980).

3 Ewing, A. C., The Morality of Punishment (London: Kegan Paul, Trench, Trubner & Co., 1929), 42.Google Scholar

4 Quinton, A. M., ‘On Punishment’, Philosophical Perspectives on Punishment, Ezorsky, G. (ed.) (Albany, NY: State University of New York Press, 1972), 10.Google Scholar

5 Ibid., 6–9; cf. Flew, A., ‘The Justification of Punishment’, Readings in Ethical Theory, 2nd edn, Sellars, W. and Hospers, J. (eds) (New York: Appleton-Century-Crofts, 1970)Google Scholar; Benn, S. I., ‘An Approach to the Problems of Punishment’, Philosophy XXXIII (1958).Google Scholar

6 This is basically the widely accepted ‘Flew-Benn-Hart definition’ as amended by T. Honderich (cf. A. Flew, op. cit., 620–623; S. I. Benn, op. cit., 325–326; Hart, H. L. A., ‘Prolegomenon to the Principles of Punishment’, Punishment and Responsibility: Essays in the Philosophy of Law (Oxford: Oxford University Press, 1968), 45Google Scholar; Honderich, T., Punishment: The Supposed Justifications, rev. edn (Harmondsworth: Penguin Books, 1976), 1421.Google Scholar

7 A. M. Quinton, op. cit., 9.

8 Ibid., 7–10.

9 I am indebted to Professor Svetlana Knjazev and Professor Aleksandar Kron for helpful comments on the first draft of this paper.