Retributivism

Once the essential simplicity of retributivism is fully grasped, it may seem that little can be done in order to justify belief in it (Bedau). Indeed, if justification of some practice as right must consist in showing how the practice produces good consequences, the retributivism cannot be justified (Benn and Peters). In this retributivism and utilitarianism are ultimately alike, for once the utilitarian has shown how a practice maximizes utility there can be no further good that utility causes that makes utility good. It is essential to both theories that retribution and utility be intrinsic goods, and the moment one reduces them to instrumental goods—goods only because productive of other states of affairs—then the resulting theory can no longer be retributive or utilitarian.

It is thus no criticism of retributivism that it cannot be justified instrumentally, for ultimately all ethical theories are in the same boat; all ethical theories must hold something to be intrinsically good. Retributivism differs from utilitarianism in this respect only in what it regards as intrinsically good.

Fortunately none of this consigns either the utilitarian or the retributivist to some kind of irrationalism about their ethics. Fortunately instrumental modes of justification do not exhaust the possibilities with respect to justifying a moral principle. The trick is to show how retribution is good without relying on the consequences of retribution to make it good.

It is helpful to step away from retributive justice for a moment to see the possibilities here. Consider John Rawls's deservedly famous justification of his two principles of distributive justice (1971). Rawls urged that his two principles of justice were justified in two distinct ways. First, the principles are the best general expression of the mass of our "considered judgments" on more particular matters, such as the irrelevance of inherited wealth for distribution of benefits. Second, the principles are the ones that follow from other more general principles, what Rawls called principles of fairness. Neither of these modes of justification reduced distributive justice for Rawls into a merely instrumental good; this, because neither mode of justification relies on the capacity of distributive justice to produce some other states of affairs. Rather, the distributive principles are shown to be just in that they describe at a general level more particular considered judgments about what justice requires and in that they are the principles that would be chosen in a fair procedure.

Both of these modes of justification are open to the retributivist. Retributivists have long sought to rely on considered judgments in particular cases about what justice requires in order to show how only the retributivist principle can explain such judgments. Imagine, Kant urged, an island society about to dissolve with one vicious murderer yet unpunished. The dissolution of the society removes all of the obvious utilitarian reasons to punish, so that if the facts that make the killer so depraved move one to judge that he should be punished, such judgment can only be explained on retributivist grounds.

A variety of objections have surfaced about this mode of justifying retributivism (Dolinko). The most serious is the charge that our considered judgments in such cases are contaminated by irrational and unsavory emotions. Nietzsche cataloged these as the emotions of fear, resentment, cowardice, envy, sadism, and so on, all lumped under the French term ressentiment (Nietzsche). The objection is that such emotional origins of our retributive judgments make such judgments nonvirtuous to hold and thus unreliable epistemically, whereas our particular judgments of distributive justice can be relied on because stemming from the virtuous emotions of compassion, empathy, and fellow-feeling.

Retributivists have made two responses to this objection. About our third-person judgments about others' wrongful behavior, retributivists have sought to distinguish virtuous emotions of "moral hatred"—the hatred anyone should feel if she identifies both with other people who are victims and with morality itself—from the nonvirtuous emotions of ressentiment that Nietzsche described (Murphy and Hampton; Pillsbury). Our particular judgments about what punishment others deserve are then said to stem from these more virtuous emotions and thus to be reliable epistemically. Similarly, retributivists have sought to show how our first-person judgments about how we should be treated if we have culpably hurt another stem from the virtuous emotion of guilt and thus can be relied on in justifying retributivism (Moore, 1997).

Continuing the analogy to Rawls, the second mode of justification proceeds by showing how the retributive principle is part and parcel of some yet more general principle of justice or fairness. The history of retributivist literature is not reassuring on this matter, for much of what has been said of a general sort is too metaphorical to provide any real grounding for retributivism. Thus, retributivists have argued that unless the guilty receive their due: the blood guilt of the whole people will not be expiated; the moral order will not be restored; the offender's debt to society will remain unpaid; the control of the victim by the crime or the criminal will not be released; and so forth (Fletcher). If one presses these metaphors of blood guilt, moral orders out of whack, debt, control, and the like, they cash out to no more than that culpable wrongdoers deserve to be punished (Moore, 1999). They thus give no more support for that essential retributivist tenet than it gives itself.

The dominant contemporary exception among this mortuary of dead metaphors about retributivism is the attempt to justify the retributivist principle by reference to a general principle of fair play and unjust enrichment. Herbert Morris and others (Scher) have long argued that the prohibitions of the criminal law set a minimum of what is required for a scheme of social cooperation, that criminals unfairly appropriate to themselves the benefits both of their violation and of others' restraint, and that fairness demands some price (in the form of punishment) to be paid for this unjust enrichment. The aim is to show how the retributivist principle follows from a yet more general principle of fairness.

Whether either of these modes of justifying retributivism has succeeded, or can succeed, is not something on which there is any consensus. Issue had been joined at all points between retributivists and their critics, and it is safe to say that no resolution will be seen in the foreseeable future. What is surprising is how much retributivism has made a comeback among contemporary criminal law theorists, political philosophers, and lawmakers. For most of the twentieth century the standard educated view was that retributivism was moribund, but in the last three decades of that century the theory came very much alive.