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Citation: 27 Isr. L. Rev. 15 1993
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JUSTIFYING RETRIBUTIVISM
Michael S.
Moore
I shall address two concerns in
this paper:
first, what retributivism
is,
and
second,
how one justifies
retributivism as the only proper theory
of
punishment. Since
this
paper
is
necessarily
short,
treatment of
these
topics
is
likewise
abbreviated,
although
hopefully
not
so
abbreviated but
that
it whets
the appetite
for
those who
wish
to pursue them
in greater
depth.1
I.
What
is
Retributivism?
Retributivism
is the view that we ought to punish offenders
because
and
only
because
they
deserve to be
punished.
Punishment is
justified,
for a retributivist,
solely
by
the
fact
that those receiving
it deserve
it.
Punishment
of deserving offenders may
produce beneficial consequences
other than giving offenders
their
just deserts. Punishment
may
deter
future crime, incapacitate
dangerous persons,
educate
citizens
in
the
behavior required for a
civilized
society,
reinforce
social
cohesion, pre-
vent
vigilante behavior,
make victims of crime
feel
better, or satisfy the
vengeful desires of citizens
who
are
not themselves crime victims. Yet
for a
retributivist these are a
happy
surplus
that
punishment
produces
and
form no
part
of
what
makes
punishment
just;
for
a
retributivist,
* Leon Meltzer Professor
of
Law and Philosophy,
University of
Pennsylvania.
An
earlier
version of this paper was given to the Fulbright Colloquium on Penal Theory,
held at the Philosophy Department, Stirling
University,
Stirling,
Scotland in Sep-
tember, 1992.
My thanks
go to
the
participants at
the
Colloquium for their helpful
comments, and
particularly
in that regard to my
commentator,
Dudley Knowles of
the
Glasgow
University Philosophy Department.
My own views
on these topics
have
been spelled out in greater
detail
in: 'Closet
Retributivism (Spring-Summer 1982
USC
Cites 9-16; Law
and Psychiatry:
Re.
thinking the Relationship (Cambridge
U. P., 1984) 233-243;
The
Moral
Worth of
Retribution , in
F.
Shoeman, ed.,
Character
Responsibility and the
Emotions
(Cam-
bridge U. P.,
1987 179-219,
reprinted in
Joel
Feinberg and Hyman Gross, eds.,
Philosophyof Law (Wadsworth,
4th ed.,
1991
685-707; PlacingBlame: Theory of
the CriminalLaw (Oxford U. P., forthcoming),
chaps.
2 and 3.
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ISRAEL
LAW
REVIEW
deserving
offenders should
be punished even
if the punishment
pro-
duces
none of
these
other,
surplus good
effects.
A
number of
ambiguities
are
present
in
retributivism
that should
be
clarified
before
we
move on
to
its justification.
One
of these has
to do
with the connection
of
punishment
to
the desert
of the offender.
Retributivists
assert
that
punishment
is justified
only if
those
who
receive
it deserve
it,
2
but
that is
not the connection
between
desert and
punishment
that
is distinctive
of
retributivism. Rather,
the
more dis-
tinctive
assertion
of
the
retributivist
is that punishment
is
justified
if
it
is
given to those
who
deserve
it.
Desert,
in
other
words,
is
a
sufficient
condition
of
a
just
punishment,
not only
a necessary
condition.
The
second ambiguity
has to do with
the
moral
demands
that
just
punishment
makes
on
state
officials
and citizens.
The
desert of offend-
ers
certainly gives
such officials permission
to punish
offenders,
and this
permission
to give
just
punishment
is no
mere
Hohfeldian
privilege
but
a (claim)
right to punish.
But
retributivism
goes
further.
As a theory
of
a kind of justice,
it obligates
us to seek
retribution
through the
punishment
of the
guilty. This
means that officials
have
a
duty
to
punish
deserving
offenders
and
that citizens
have
a duty
to
set
up
and
support
institutions
that
achieve
such
punishments.
3
The
third
ambiguity
has to do with punishment
itself.
Does
retributivism
purport
to justify why we
have
institutions
of punishment
generally,
or
only why
we punish
particular people on
particular occa-
2
The late
John
Mackie called
this view
negative
retributivism*:
J. L. Mackie,
Morality
and the Retributive
Emotions',
(Winter/Spring,
1982
Criminal Justice
Ethics
3-10;
Mackie, Retributivism:
A
Test Case for Ethical
Objectivity,,
in Joel
Feinberg
and Hyman
Gross,
eds., Philosophy
of Law (Wadsworth,
4th ed.,
1991 677-
684. Note
that
the
negative retributivist,
if
he
is
truly a retributivist
at all,
must
also
be a positive retributivist.
For
the negative
retributivist
asserts that the
justification
for
not
punishing
those who
do not
deserve it lies in
the
fact
that there
is no
morally
acceptable
reason
to punish in
the absence of
desert; this implicit
appeal
to the deserving
of
retributive
justice is
distinct from
justifying the
non-punishment
of
the innocent
on grounds of fairness,
liberty,
or
utility.
(On the latter
point, see
Moore, ct nd
rime (Clarendon
Law Series,
Oxford
U. P.,
1993
chap. 3.
3
See Moore,
'The Moral
Worth of
Retribution ,
supra
n. 1,
t
182.
David
Dolinko
has
come
to label
this
a bold retributivism,
to
be
contrasted
with a weak
retributivism
according
to which
it is
only
permissible
to
punish
those
who deserve
it.
See Dolinko,
Some
Thoughts About
Retributivism , 1991)
101 Ethics 537-559,
at 542.
The
late
John
Mackie
called this pair
positive
versus
permissive
retributivism,
respec-
tively:
Mackie,
'Retributivism:
A Test
Case for
Ethical
Objectivity',
supra
n.
2,
at
678;
Mackie,
Morality
and the
Retributive
Emotions ,
supra
n.
2, at
4.
[Is.L.R.
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JUSTIFYING RETRIBUTIVISM
sions? Some
theorists have wished to distinguish
the
general justifying
aim of
the
criminal law
from
the justifications of
particular
decisions
within an ongoing
criminal
law system.
4
While
such a distinction
certainly
has its
uses, it is of no
use
in wedding
retributivist to, say,
utilitarian
concerns
with justifying punishment. Even if
one
were to
concede the
existence
of
practice
rules rules
which require
moral
justification but whose application to particular cases is to be made
without
resort
to that
moral
justification
5
-
such
concession goes
no
distance
towards introducing
any
alien
concerns into
either
a
retribu-
tive or a
utilitarian
punishment
scheme.
That
is,
if
one
is
a
utilitarian
in
his justification of the
practice
ofpunishment, one will remain purely
a
utilitarian even if one bars utility
calculations
in
applying criminal
law rules; and mutatis mutandis for
the retributivist. Retributivism is
thus the view both
th t punishment institutions in general are justified
by
the
giving of just
deserts and that the
punishment of each
offender
is justified
by
the
fact
that
he or she deserves
it.
The fourth
ambiguity has to
do
with
the consequentialist
versus
deontological
nature of
retributivism.
A consequentialist about moral-
ity believes that the
rightness
of an action
is
exclusively a function of
the
goodnessof the consequences that that action produces; a deontologist
about morality believes that the rightness of an action is (sometimes at
least) a function
of the action's conformity with agent-relative norms,
norms th t are addressed to
each
person individually at a particular
time
and that
are not concerned
with
maximizing conformity to such
norms by
oneself
or
others on other
occasions.'
The
distinction
becomes
clearer
if we apply it to retributivism. Take
Kant's
old
example
of
the
last
murderer in
an
island
society
th t
is
about
to
disband and leave
its
island.' A
retributivist
believes
th t the
murderer should
be
punished
because he
deserves it even though no
other
good
will thereby be achieved.
The guilty, in other
words, must
4 Most notably, H.
L.
A.
Hart,Punishment
and
Responsibility
(Oxford U. P.,
1968),
and
John
Rawls,
Two
Concepts
of Rules , 1956) 64 Philosophical
Review 3-32.
5 This
Rawls/Hart distinction
has been carried
into
more
recent
discussions
by Joseph
Raz. See
his
Practical
eason
and
Norms
(Oxford
U.
P.,
1975). I
argue
against Raz s
version of practice
rules
in
Moore,
Law, Authority and Razian Reasons', (1989) 62
S. Cal. L.
R.
827-896,
and
Moore, Three Concepts of Rules', (1991) 14
Harv. J. L.
and
Public
Policy
771-795.
6 This
distinction is explored
in much
greater
detail in Moore, 'Torture and
the
Balance
of
Evils , (1989) 23 Is. L.
R.
280-344.
7
Kant, The
Metaphysical lements of Justice
J.
Ladd, trans.,
1965) 102.
Nos.
1-2, 1993]
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ISRAEL
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be
punished.
If
one
construes
this
retributivist
norm as
an
agent-
relative norm, then
the
members
of Kant's island
society are
obligated
to
punish
the
last
murderer even
if
by
doing
so
other guilty murderers
elsewhere
will
go unpunished.
(We
might imagine,
for
example,
that if
we punish
this murderer, he
will not
testify
against
other
murderers
who
will
thereby
escape
conviction
and punishment.)
Alternatively,
one
may
look
to
the overall
consequences
of applying
the
norm;
if
one
construes this
retributivist norm
as a norm describing
a
state
of affairs
that
is to be maximized,
then the
members of
Kant's island
society
should
not
punish
the
last
murderer
but
should
rather
maximize
the
punishment
of
the
guilty
by their
actions.
The
deontological
or agent-
relative retributivist
regards the act of
punishing
the
guilty as categori-
cally
demanded
on each
occasion,
considered
separately;
the
consequentialist
or
agent-neutral
retributivist
regards
the
state
of
the guilty
receiving
punishment
as a good state
to be maximized
even
when
this
means
that
some guilty
persons are
intentionally
allowed to
escape punishment.
It
is usually
assumed
that
retributivism
must
be
of the
agent-relative
kind.
8
Often this
assumption is made
about retributivism,
the
better
to
criticize
it.
Thus,
it might
be
argued that retributivism
cannot justify
any
actual
institution
of punishment
because
any
actual
institution of
punishment
will
make some
mistakes in its findings
of
guilt, namely,
some actually
innocent persons will
be found guilty.
9
How,
then,
could
an agent-relative
retributivist
justify setting
up retributivist
institu-
tions
of
punishment?
Not
by
weighing
the
evil of
a
guilty
many not
being
punished (if there
were
no
institutions of
punishment) against
the evil
of a few
innocents
being
punished (as will be
the
case if
there
are
institutions
of
punishment)
for
this mode of
justification would
be
consequentialist,
a
mode not allowed
to the
supposedly necessarily)
agent-relative
retributivist.
Alternatively, it
might
be
thought
that
we rightly
refuse to
punish
some guilty
persons in
order
to be able
to punish
other,
more
seriously
guilty
persons as
when
we
give
immunity,
in order
to extract
testi-
mony
needed to
convict
the
latter.
1
How
can
the
retributivist
accom-
8 See,
e.g.,
Dolinko,
Three
Mistakes
of
Retributivism ,
1992)
39
UCLA
L.
R.
1623-
57.
9
See
Dolinko, ibid Schedler,
Can Retributivists Support
Legal
Punishment?*
1980)
63 Monist
185-198. Compare Larry
Alexander, Retributivism
and the
Inadvertent
Punishment
of
the Innocent'
1983)
2
Law and
Philosophy
233-246.
10 I
owe this point to
Dudley
Knowles.
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JUSTIFYING RETRIBUTIVISM
modate these practices,
given
that
the
retributivist
regards the
punish-
ment of the
guilty to
be
categorically
imperative whenever the opportu-
nity
to
give such punishment presents itself?
Yet if a
retributivist
may be a consequentialist, these are obviously
non-problems
for his
theory
of punishment. With regard
to
the first, a
consequentialist-retributivist
need
not maximize the punishment of
the
guilty
to
the
exclusion of maximizing other, equally valuable
states
of
affairs,
such as
the
non-punishment ofthe
innocent.
Such a retributivist
may-easily
maximize both
that
those deserving punishment receive
it
and that
those not deserving
of
punishment
not
receive
it.
Where
in
the
actual
design of punishment
institutions the
consequentialist-
retributivist comes out on
this
balance need
not here
detain
us;
1
the
important point
is
that
there
is
no
incoherence even prima acie in such
a retributivist setting up an institution
that will
punish
some
innocents
in
order to punish
the
guilty and forego
punishing some guilty
in
order
not to
punish too many innocents.
Likewise
with
regard
to
the second
problem the
consequentialist-
retributivist
will
intentionally refuse
to
punish
guilty persons
whenever
more guilty persons (or
greater guilt) will
be
punished thereby.
For the
consequentialist-retributivist, no matter how intrinsically good
it is that
the
guilty
receive
their
deserts,
more
of that good
is to
be preferred to
less of it.
Can
the retributivist
be
a consequentialist? One can, of course
define
retributivism
so that
a
retributivist must be
a
deontologist.
Yet
I
suspect that
the temptation
to so define retributivism
stems from
a
simple
confusion.
The confusion is between the intrinsic goodness of
retribution
being exacted
on
the
one hand,
and
the
categorical
duty
to
punish the
guilty
on
each
occasion
where
that
can be
done, on the other.
As
I shall argue shortly in the next section what
is
distinctively
retributivist is
the view
that
the
guilty
receiving their just deserts
is
an
intrinsic good.
It is, in
other words,
not
an instrumental good
good
because such punishment causes other states of
affairs
to exist that are
11 The retributivist might adopt a principle
of symmetry here the guilty going
unpunished
is exactly
the
same
magnitude
of
evil
as the
innocent
being
punished
and design his institutions
accordingly.
Or
the
retributivist
might share the common
view (that
the second is a
greater
evil than the first)
and
design
punishment
institutions
so that
ten
guilty persons go
unpunished
in
order
that one
innocent not
be punished . See Jeffrey Reiman
and
Ernest van
den Haag,
'On the Common
Saying that it
is
Better that Ten Guilty
Persons
Escape than that
One
Innocent
Suffer:
Pro and Con' 1990) 7
Social
Philosophy and
Policy 226-248.
Nos.
1-2, 1993]
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ISRAEL LAW
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good.
Even
if
punishing the guilty
were
without
any
further
effects,
it
would be a good
state
to
seek to bring about, on
this
intrinsic
goodness
view
of punishing the guilty.
This distinction between
intrinsic
versus instrumental
goodness
is
commonly confused with
the
distinc-
tion
between
deontological
and consequentialist
views of right
action.
The
result is that
something
that
is
not
distinctive of retributivism (that
we
each
have an agent-relative obligation to
see that the
guilty
are
punished) is
taken to
be essential to
retributivism.
Although
I thus conclude that a retributivist
may be a consequentialist,
neither
of
the
two problems
above raised for
deontological versions of
retributivism
should incline
the
retributivist
towards the consequentialist
version.
The probable punishment
of
the
innocent
by
any real-world
punishment
scheme is
not
much
of
a
worry even for
deontological
versions
of retributivism.
We
rightly set
up many
social institutions
where we
know that some percentage
of individuals affected
by
them
will be
hurt or even
killed,
e.g., coal-mining, high-rise
construction,
and
speed
limits
on freeways. That
we
know
that some percentage of
individuals
will
likely
suffer
these harms
if
we
arrange these
institu-
tions as
we do arrange them is not
to
be
equated with either
our
intending
that they be so
harmed,
or knowing
that some
identified
individual
will suffer that harm.
Agent-relative
moral norms
bind
us
absolutely
only with respect to evils
we either intend or (on
some
versions)
knowingly visit
on
specified
individuals. One
can
thus
arrange
safeguards in coal
mines,
high
rise construction, automobile
travel, and
punishment in ways
that predictably will hurt some
who do not deserve
to be hurt, without for a moment
ceasing
to
be an agent-relative
theorist
about morality.
The
same
cannot be said about
the
intentional foregoing of any
opportunity
to punish a
guilty
offender
in order
to
obtain
the
conviction
and punishment of an
even more guilty offender,
which is why this
common
prosecutorial practice
is
more of a problem for the deontological
version
of
retributivism. Yet the deontological
retributivist might sim-
p y
deny the propriety of the
practice. More plausibly, if
he is a
threshold
deontologist ,
as am I, he
might more qualifiedly
disavow the
12 I explore
both
the
doctrine
of
double effect, and the analogous
doctrine distinguishing
knowing visitation
of harms on
specified
people versus
risking
harm to
some
uniden-
tified part of
a
class
of persons in Moore supr
n.
6
As
I there
show n
detail,
any
deontological
view of
morality
must
incorporate
some such limits
as these in
order
to
specify the domain
over
which
morality's
absolute prohibitions range.
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JUSTIFYING RETRIBUTIMSM
practice
except
when
it
is needed to
punish
some
very deserving
criminal(s).
1
3
In any case,
nothing in
the
present
project requires
that
we
decide
between
deontological
versus
consequentialist retributivism.
Both
are
recognizable
versions
of
retributivism.
The
most
important
point
here
is not to
confuse
the distinction between these two versions of
retributivism
with the
quite
different
distinction
between
valuing the
giving of
just
deserts as only instrumentally
good,
as opposed to valuing
it as intrinsically
good.
II. Justifying
Retributivism
A. Morally
Justifying The
Retributive
Principle
by
Particular
Judgments
How is
retributivism,
so defined, to
be
justified?
Very generally,
there
are three sorts
of
things
which
might
be
said
to
justify
the
retributivist
principle
of punishment.
One is a
conceptual
claim:
only
when harsh
treatment is imposed
on
offenders
in
order to
give them
their
just
deserts
does
such
harsh
treatment
constitute
punishment
The
conceptual claim is made
about our concept of punishment, and
the
claim
presupposes
that that concept
is
captured by the
purpose
for
which punishment
is
imposed
as
much
as by any structural feature that
it
may
possess.
A second sort of justification of retributivism is a legal
claim:
within
our legal
system
with its established doctrines and
procedures,
the
implicit goal is the retributive one
of
seeking
to
give
just
deserts to
offenders.
The claim is
an
interpretive
(or as I prefer
to say, a
functional )
one,
in that it accepts
established
legal
institutions
at
face
13
A
threshold deontologist
refuses
to
violate a categorical norm
of
morality
until
no t
doing
so
produces
sufficient ba d
consequences
as
to pass some
threshold
then,
he
will override
such
categorical norms. See Moore, supra n. 6.
14 For
this
older form of argument
see,
e.g., A
M.
Quinton,
On Punishmente (1954) 14
Analysis 1933-42. For a related argument, seeking to tease
retributivism out
of our
concept of law, see Herbert Fingarette, Punishment
and Suffering
1977)
50
Pro-
ceedings
of the American Philosophical Association
499-525.
Nos. 1-2,
1993]
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ISRAEL
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value
and
asks, what
goals
make
the
most sense of these ?
5
The
claim
is
that
the retributive goal fits our
established doctrines
well,
whereas
competing
utilitarian
goals like crime-prevention
fit
so poorly
that
they
seem like
so
many
of F. H. Bradley s
bad reasons
for
what we believe
on instinct anyway.
A third
sort of
justification
of
retributivism is
a
moral
claim:
our
obligation
to
punish
offenders
so as to
give
them
their
just deserts
is
justified
in this sense if
the
practice
meets whatever epistemic
stan-
dards we impose to
justify any
of our moral beliefs. f
we are
consequentialists
about morality, and
if
there are
other
goods
to
be
maximized besides
giving
the
guilty
their due, then
we
may
seek to
justify
this retributive value by
its contribution to the
maximizing
of
some other good(s)
that we accept
more
readily
than
we
accept
the good
ofretributive punishment.
If we are
not
consequentialists about moral-
ity, or
if
our
consequentialism admits
of
no
goods that
are more basic
than
the good of
achieving retributive
justice,
then our mode
of
moral
justification cannot be
in
terms ofsome
other value served by retributive
punishment. Rather,
we
must
justify retributivism
in
whatever
way
we
justify actions
and
practices
as being intrinsically
right.
However we
justify the
intrinsic
rightness
of
not punishing
the innocent, for
ex-
ample,
is
how we should
justify
the
intrinsic rightness
of punishing the
guilty, on this
general view of morality.
The
most
important
sort of
justification
is
the
third one,
the
moral
justification
of retributive
punishment, and
so I shall
focus on it alone.
In
order
to understand
what we can
rightfully
ask
for by
way
of moral
justification
we need to keep
three
distinctions
in
mind.
One
of
these
is the consequentialism/deontology
distinction
of the
last section.
The
second
of these
was
also adverted to earlier, that
between
the intrinsic
versus the
merely instrumental
goodness of a state
of affairs or of an act
or institution.
A state
of
affairs,
act
or
practice
is
intrinsically good
if
its
goodness does
not depend
on
some further
effect that the
state
of
affairs, etc., produces. One
might think that giving
a
novelist
some
reward
for producing
a novel is
intrinsically good, it
being no
more than
she deserves.
Alternatively,
if the
goodness
of such
a
practice
of
reward-
15
Ronald
Dworkin
regards such claims
as interpretive, although
I prefer the
older if
less fashionable
label, functional .
For
the difference,
see
Moore, Law as
a Func-
tional
Kind ,
in
Robert
George,
ed.,
atural
aw
Theories
(Oxford U. P.,
1992) 201-
203, 220-221. For the functionalist
claim
that Anglo-American criminal
law is a
functional
kind
whose
implicit
goal
is the seeldng
of retributive justice,
see
Moore,
ATheory of
Criminal
Law Theories ,
(1990)
9 T. A. U. Studies
in Law
115-185.
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JUSTIFYING
RETRIBUTIVISM
ing novelists with
copyright
monopolies
inheres in
the
effects of
the
practice y giving
rewards
one
gives incentives to
other
novelists to
produce novels, and novels
are
an
intrinsic good then
the practice is
only
instrumentally
good.
Notice
that the notion of instrumental goodness
is not to
be
identified
as
utilitarian.
Utilitarianism is a kind
ofconsequentialist moral theory
with a
particular
idea
of
what
is
intrinsically
good pleasure,
happi-
ness,
preference-satisfaction, or some other welfarist
notion. For a
utilitarian,
all
other goods
are merely
instrumental.
There is
nothing
in
the intrinsic/instrumental
distinction
that
requires
this kind
of
mo-
nism about what is intrinsically
good One might
well
be a
pluralist
in
this regard, admitting that
the welfare of
persons is
an intrinsic goo
while
also thinking that not punishing
the
innocent,
giving
those who
labor
the
fruits
of
that
labor,
not
demanding
the
impossible
from people,
etc.,
are
equally intrinsic and not merely instrumental goods.
As
I
mentioned
in the
last
section,
this intrinsic/instrumental
distinc-
tion is
often
mistaken
for
the
deontological/consequentialist
distinction.
Yet
these are quite distinct
oppositions.
One
might
believe
th t
giving
those who labor the
fruits
of their
labor is
intrinsically good. This
does
not determine whether
one
is
a consequentialist, so
th t the
right
institution (of copyright,
say) is one that maximizes
this intrinsic good
ysacrificing its attainment in the
short run
for
even more of it
in the
long run; or whether one is a
deontologist, so that the
practice
of giving
the
novelist the
fruits of
her
labors is
the intrinsically
right
thing
to
do
on
any
occasion
on which one
can
do
it
The intrinsic/instrumental
distinction is also
often
confused
with the
third
distinction
pertinent
here,
the distinction
between first principles
in
ethics, and all other principles (let us
call them
secondary
prin-
ciples ).
A first
principle, as the name suggests,
is
the most general
description ofwhat it
is
intrinsically right
to
do or what states of affairs
are
intrinsically
good to cause. Being
first, such
a
principle cannot
be
deduced
from some
more general
principle. This feature of first prin-
ciples may
suggest that
such principles cannot be
argued
for at all and
that
they
must
therefore
be
defended
as self-evident or revealed by
religious
faith.
My
own
view
of justification in ethics rejects
these last connotations
of the idea of first principles. On what is
often
termed
a
nonfoundationalist
or
coherence
view
of
ethical
justification,
to
say
that
a
principle is the
most general
that
can be formulated
and
therefore that it cannot be argued for by
showing it to be an instance
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ISR EL
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of
a yet more general principle
is
not
to
say that
the principle cannot
be
argued
for
at
all. Rather,
first principles
are to be
justified as
abductive
inferences
from
more
particular
principles
and judgments. 16
When John
Stuart Mill
argued for his
first
principle (of
utility),
for
example,
he
saw
that
th t principle
could not be
deduced from
some
yet
more general principle
else
the principle of
utility would
then
not
be
a first
principle.1
7
Yet
(on one interpretation
of Mill) he did
argue for
the principle
of
utility
on
the grounds that it
best
described
what
was
common to all more
particular
judgments about
what
states of affairs
are
desirable,
namely,
that
they
are
desired.
Similarly, when
John
Rawls
argued for
his two
first principles of
distributive
justice, he
did
not
seek
to deduce
them from some
more general principle
of
justice
as
such.
Rather,
he
sought to show how
his
two
principles best
described
a
range of particular
judgments, both
substantive
(no one
deserves
his
own talents) and
procedural (hypothetical
agreement
in a fairly
con-
structed
setting for choice). is
It is a kind of category
mistake
to
equate
the
first
principle/second
principle
distinction with
the distinction
between
intrinsic
goodness/
instrumental
goodness.
The
latter is a metaphysical
distinction
be-
tween
two sorts of value.
The
former
is an epistemological distinction
between
two sorts of
principles
through
the
grasping
of
which
values
are
known by
us.
Moreover,
there is
no tight
linkage
between the
two
distinctions.
While a first
principle
presumably
describes
what
is
intrinsically good or
intrinsically
right,
secondary
principles
may
do
so
as well.
I
may,
for example, believe that
giving
this
novelist this sort
of copyright
protection is intrinsically
right, believe that
giving
novelists
copyright protection is
intrinsically right,
believe
that
giving
property
rights to
anyone
who
creates
a
novel
thing is intrinsically
right, and
believe
that giving
anyone
what
they
deserve is intrinsically
right,
even
though
only
the most
general of these
beliefs should
be construed to
have as
its content a
first principle.
This
minor detour
into some fundamental
distinctions
in ethics
is
essential
if we
are to
keep proper
perspective
on various
criticisms
of
my
mode ofjustifying
retributivism. For what if
one
were to hold that: 1)
the
retributive principle is a first
principle;
(2) the
suffering
that
pun-
16
See
Moore,
Moral Reality , [19821 Wisc.
L. R 1061-1156;
Moore, Moral Reality
Revisited
1992)
90 Mich. L. R 2424-2533.
17
John
Stuart Mill, Utilitarianism
Liberal Arts
Press, 1957) 44.
18
John Rawls,
Theory of ustice (Harvard
U. P., 1971 .
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JUSTIFYING
RETRIBUTIVISM
ishment
entails is an
intrinsic
good
when inflicted
on
those
who
deserve
it; and
3) we each
have
an
agent-relative
obligation
to punish
the guilty
(even
if other guilty persons
would escape punishment)
because the
intrinsic goodness of such punishment
is
not
to be
maximized
by
our
actions? If
retributivism
is
taken to
be
a first
principle
describing
an
intrinsic
value
that we
each
categorically
are enjoined
to realize
in
our
actions,
then we
must tailor
our demands for its
moral
justification
accordingly.
My
own mode of
justifying
retributivism
has tried
to do this.
1
9
I
take
seriously
the
sorts of
particular
moral
judgments
that
Kant-like thought
experiments
call forth in me
and
in
most people
I know: imagine
an
offender
who
does
a
serious
wrong in
a
very
culpable
way
e.g.,
Dostoevsky's Russian
nobleman in The
BrothersKaramazov
who
turns
loose his
dogs to
tear apart a young
boy before the
eyes of
the
boy's
mother;
imagine further
that circumstances
are such (e.g.,
Kant s
island
society
about to disband)
that
no
non-retributive purpose
would be
served
by
punishing this offender.
Now
imagine two
variations:
1)
you
are
that
offender;
(2)
someone
else is
that
offender.
Question: should
you or
the other offender be
punished, even
though no other
social good
will thereby be
achieved? The retributivist s
yes runs
deep for most
people.
The
main
reason that
thoughtful
people
often give for disavowing
their own retributivist
intuitions about
such cases is that
they
think
such impulses
to
be
unworthy
of
them. More specifically,
they under-
stand that such judgments
are the
products of emotional
responses by
them
to
the
brutal
facts
of
such cases,
and
they wish to
disavow those
emotions.
That
is
why
I
have
found
it
important
to
separate
the
first
and
third
person
variations
ofthe
thought
experiment.
Such
variations
call
forth quite different emotions,
even
if
they
lead
to
a
common
judgment
of
deserved
punishment.
The
third
person variation
of the thought experiment
is
admittedly
quite
troublesome
in
terms
ofthe sort ofemotions it
calls forth.
Nietzsche
observed
that such thought
experiments
called
forth that
witches
brew
of emotions he
lumped under
the French term, ressentiment:
emotions
of
resentment,
fear, revenge, sadism,
and
cruelty. Because such
emo-
tions are
unworthy of us, Nietzsche
urged,
we
should disavow the
retributive
judgments to which they
lead.2
19 Moore, The
Moral
Worth of
Retribution,
supr n.
1.
20 For discussion and
citations, see
Moore,
The
Moral Worth of
Retribution , ibid
Nos. 1-2 1993]
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REVIEW
More
recently
a
number
of legal
philosophers have sought
to
rescue
these
kinds of
retributive
judgments
from Nietzsche's
sort
of disavowal.
Jeffrie Murphy,
Jean
Hampton, and
Samuel Pillsbury
have
each
sought
to
distinguish
a virtuous
emotional response
from responses
of
ressentiment
to third person
thought
experiments.
1
In different
ways
they
have
each sought
to distinguish
a
moral hatred
or
a
moral
outrage that
is
the
only proper response
of
a
moral
being to the
gross
violations
of morality
by
others
that
violent crime
represents.
To
my
mind, they have made
their
case:
to
be
indifferent
to
culpable
wrongdo-
ing
by
another
evinces
both a lack of
empathetic
identification with
others
who
are victims,
and a
lack
of
attachment
to
morality.
The
virtuous person may turn
the other
cheek
when it
is
his cheek that
has
been
slapped (although
I
doubt
even
this), but
there is no virtue
in
turning
someone
else's cheek
when
they've
been slapped.
Violations
of
others'
moral
rights
should
make
us angry
t those
who
flout
that
morality, and that anger
need
not
be
tainted
by
cruel,
sadistic, fearful,
or
resentful emotional accompaniments.
My own
rescue
of
retributivism
from
Nietzsche's
charge
has
been
different. I have
focused on
the first person
variation of the
Kantian
thought
experiment,
where we
are
to
imagine
that
it is
we who have
culpably done
some great
wrong. Here there
is a
much
lessened danger
that our intuitions about
desert
will
be tainted
by the
emotions of
ressentiment
Rather,
one emotion
here predominates,
and
that
is the
emotion
of
guilt. A virtuous
person
would
feel
great
guilt at violating
another's
rights
by killing, raping,
assaulting,
etc. And when that
emotion
of
guilt
produces
the
judgment
th t one deserves
to suffer
because
one has culpably
done
wrong,
that
judgment
is not
suspect
because
of its emotional
origins in
the
way
that
the
corresponding
third
person
judgment might
be.
It may be tempting
to
concede
that in
one's
own case: (1)
one
would
indeed feel very guilty
if one culpably did
such
a wrong; (2)
that
such
feelings
of guilt
would
be
virtuous to
feel indeed,
the only
tolerable
response of a moral
person; (3)
that therefore
the
judgment
which
such
emotion
produces
that
one
is guilty
and deserving
of punishment
is
true.
Yet,
one
might
refuse:
(4)
to generalize
this
judgment
about
one's
own deserved
punishment
to
others
who
do
like wrongs.
One
21 Jean Hampton and
Jeffrie
Murphy,
Forgiveness
and
ercy
(Cambridge
U. P.,
1988 ;
Samuel
Pillsbury
Emotional Justice:
Moralizing the Passions of
Criminal
Punish-
ment
(1989) 74
Cornell
L. R. 655-710.
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JUSTIFYING RETRIBUTIVISM
might
think
that the standard that we apply to ourselves
should
not be
applied to
others.
This
sounds
like a
generous
way
to think.
It
is important to
see that
it
is not.
To grant that you
would
be guilty
and
deserving
of
punishment,
but that
others
who do the
exact
same
wrong with the exact same
culpability
would
not
be, is
to arrogate to yourself a god-like position.
Only you
have
those
attributes of moral agency
making
you alone a
creature
capable
of being morally
guilty; others are simply lesser beings,
to
be
pitied perhaps, but not
to
be
blamed as you would blame yourself.
This is not moral generosity.
Rather,
it
is
an elitist
arrogance
that
denies
one s common humanity
with
those who do wrong. Such elitist
condescension is no virtue,
and
provides
no basis for refusing to
endorse
the
fourth step
in the first
person version of the Kantian thought
experiment,
a step
generalizing one s own potential for guilt and de-
served punishment to other persons.
B
Critical
Reconsiderationof
this
Mode of
Moral
Justification
A
variety
of
criticisms
have been levelled
at
my justification
of
retributive
punishment via particular thought experiments and
the
kind
of particular judgments
that
they
call forth. The
leading
criticisms
seem to be five
in number,
which I shall
deal
with
seriatim
1
First
is the charge of circularity. The
charge
is
that the general
judgment
that
punishment should be imposed
just because culpable
wrongdoers deserve it
is
being justified
by nothing
but itself. For
what
are
the judgments
in particular
thought experiments
but
judg
ments
that punishment should
be imposed (e.g.,
on Kant s
last
murderer
in
the
island society,
on
Dostoevsky s cruel nobleman, etc.) just because
each of
these
culpable wrongdoers
deserve to be
punished? The
worry
here
is
one
of question-begging:
since
the particular
judgments with
which
we start are themselves
retributive judgments, how can they
justify
the
general
retributive judgment without begging the question?
There are three ways of
construing
this question-begging or circu-
larity)
worry.
One
is
to
construe
it
strictly:
literally,
the
very same
principle is
being
used
to justify itself. So construed,
the worry is
groundless, for
the
particularjudgments
called
forth
by
Kant-like
thought
experiments are not identical
in
content with the retributive principle
itself. The
retributive
principle is
the universalized judgment that all
culpable
wrong-doing
ought
to
be punished; Kantian thought experi-
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ISR EL
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REVIEW
ments
give rise
to particular
judgments
that
particular persons in
particular
situations
ought
to be punished.
The former
judgment
stands
to
the latter
judgments as universally generalized to
singular state-
ments:
aspects
of
the
situations
involved in
the
latter
judgments are
abstracted
as relevant,
and these
are universalized
into
the
general
judgment
that whenever these
aspects are
present punishment is obliga-
tory. Strictly
speaking, thus, the retributivist is
not justifying the
retributive
norm
by
reference
solely to itself. Rather,
he is
inferring
a
universally
generalized statement
from a
set of singular statements.
A
second,
less-literal
construal
of
the question-begging
worry
does
not claim identity
between
the
judgment to
be justified, retributivism,
and
the particular judgments
doing the justifying.
Recognizing
the
distinction between
universally generalized
versus singular
judgments,
this
form of the worry nonetheless
insists that
the
particular judgments
are themselves
retributive.
The
worry
is
that
the
particular
judgments
are
of
the form
the nobleman should
be
punished
because
and only
because he
deserves it . The
worry
is
that
merely
universalizing
this
singular
judgment into the
general
judgment
that
all those
who
deserve
punishment should
be given
the
punishment that they
deserve
is
trivial.
2
2
22 David
Dolinko
advances this form of
the question-begging
objection against my
coherentist
methodology with
an example:
Consider, as
an analogy, a
similar
coherence
justification
for
the view, say,
that
women are inferior to men,
offered
circa
1800
by one man to
another. Someone has raised
the
question
of whether
it is
really
justifiable to treat
women
as inferior
and
is
met with
the response that 'Well,
of
course, we all have the
intuition
that in this
situation
we should
discriminate
against
women,
and likewise
in this and
this; now, the best
way
of
accounting
for these
particular judgments
is to suppose women to
be
morally and
intellectually inferior
to men'.
Wouldnt one
feel
that
the
crucial question
is
being begged?*
Dolinko, su r
n.
3
at
557 58. Notice
that
Dolinko trivializes
the
inference
in his
analogy in
the
manner attacked in the
text:
the particular judgments are not that
this
person
should
be treated
in
some inferior way in
this context; rather,
the
particular
judg
ments already include most
of the
terms
of
the principle
to
be
abstracted
from them
that the
inferior treatment
is
discrimination; hat the only feature
to be
mentioned
is that the
persons
discriminated
against
are women
By
his choice of analogy, Dolinko
also of
course
hopes to suggest that a
coherence
mode
of justification
is no
guarantee
against
moral
error,
for we are only cohering
our
own beliefs and attitudes.
One can easily
concede this
possibility of
error without
for
a
moment
conceding Dolinko's hoped
for conclusion
(that
this form
of
argument
is question-begging).
Our
particular judgments
of
visual perception can of
course also
be in error
on occasion, but
that
does not
eviscerate the power of
those
judgments
to be
good
if not conclusive)
reasons
for
believing
the
principles
abstractable
from
them.
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This
form
of
the
circularity worry
would
be
a
real worry if the
presupposition
on
which
it rests
were
true.
What the
worry
presupposes
is
that
the particular
judgments from which justification proceeds are
of
the
content
just
described.
Yet
such
particular judgments are
not
that
the nobleman should
be punished because
and only
because he de
serves
it . Rather, the particular judgments
are that the nobleman
should be punished, period. It
is
making
such judgments about
a
wide
range of particular cases,
and
abstracting from those cases what
they
have
in common
the desert
of
the
actors
that
then allows the
retributivist
to
infer the
retributivist
principle
that
offenders
should
be
punished when, but only
when,
they
deserve it.
This is not a
trivial
inference,
for
the features of the situations in
which
we judge punish-
ment to be appropriate could
easily
be otherwise. It could be
the
reformability,
or the deterrability, either of
the
particular
offender
or of
some
class
that
he
instantiates, th t
is
the recurring feature present in
the
situations that
call forth
our
judgments
about
the appropriateness
of punishment in particular cases.
As
it happens, these are not
the
features
of
relevant
situations that
recur.
The
inference
that
it is the
desert
of the offenders
that
should
be generalized from our particular
judgments
of
punishment
is thus not a
trivial
one. Such
particular
judgments thus
possess a non-trivial
justificatory force for
sustaining
the
retributive
principle.
The third
and
last form of the
circularity
worry
focuses on
desert
itself.
The worry
here is
that desert
simply means, a
fit
subject
for
retributive punishment , so that when one abstracts desert from par-
ticular cases
(as the feature of those cases
th t
caused judgments of
punishment)
one
has
done
no
more
than
start
with
particular
retribu-
tive
judgments
in order
to justify
the
general
retributive
judgment.
23
Desert ,
however, does not mean, a
fit
subject for retributive punish-
ment , any more than death
means, a
fit subject
for
concern by a
mortician or illness means, a fit subject for concern by
a
medical
doctor .
24
Rather, desert
means
culpable
wrongdoing (at
least
with
respect to blameworthy actions a broader formulation
is
needed to
23
For
an
example
of this
form
of
the
question-begging worry,
see
Mackie,
Retributivism:
A
Test Case
for
Ethical Objectivity , supr
n. 2,
at
79
(Desert'
is
not such
a
further
explanation,
but is
just
the
general, as
yet
unexplained, notion
of
retributivism
itself .)
24
These
last
examples are considered in
Moore,
Law
nd
Psychiatry supr n. 1, at
chap. 5.
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encompass praiseworthy
actions).
When
we
abstract
desert out as
the
recurring feature present
in
cases of
prim
f cie
justified punishment,
we
are
thus
not
merely
isolating punishability
on retributive
grounds .
There are two aspects of desert th t
are worth drawing
out
a bit. The
first is
wrongdoing.
A person
does
wrong
whenever his voluntary act
causes a
state
of
affairs to
exist that
instantiates
a moral norm that
prim f cie prohibits such acting and such causing,
and
there is no
moral justification for
this prim
f cie
wrong.
Wrongdoing
is
thus
constructed out
of the
elements
of action,
causation, and
(lack of)
jus-
tification.
=
Culpability
is distinct from wrongdoing. A person may do
wrong,
say
by killing a
perfectly
innocent
victim, yet
be
non-culpable in the doing
of that wrongful
act.
He
may
be
insane, for example,
or
acting
under
extreme
duress, or
he may
have mistakenly
believed
that
his
victim
was
trying
to
kill
him.
Likewise, a person may
be
very culpable and yet have
done
no
wrong.
He
may
have
shot
a stump, for
example,
while believing
that
he
was
shooting
his old enemy. Culpability arises from
the
mental
state
with
which
an
action
may
be
done,
and
the
(lack
of)
excuse
for
the
otherwise culpable doing of a wrongful
action.
To say
that a
person deserves
punishment
is to say
that
he has
culpably
done
wrong (or,
in
some cases, that
he
is culpable even
without
wrongdoing).
Desert is thus far from an
empty concept,
connoting
no
more than punishability
on retributive
grounds. Inasmuch as wrong-
doing
and
culpability are
far from empty
concepts, neither
is desert.
2. I
suspect
that
some critics of my
justificatory
methods might
well
concede
the
above
rebuttals
of
the
three
question-begging
worries
and
yet still think that
generalizing
from particular judgments
to
the
re-
tributive principle cannot justify the latter
principle. To
sustain
this
form of the objection, however,
such
a
critic
would
have
to believe two
things: first,
that
there
is
no more
general
principle from which the
retributive
principle can
be deduced;
and
second, that absent such a
more general principle,
the retributive principle is in no
sense morally
justified.
We can quickly
dispatch with
the
second
of
these beliefs,
for such a
belief is no
more than a return to a rationalist foundationalism
in
moral
25
On
wrongdoing,
see
Moore,
Act
nd Crime supr n.
2,
chap
7
26 In his commentary
upon this paper at Stirling my commentator, Dudley
Knowles,
appeared
to take
this view before
eventually abandoning it.
See Knowles,
Unjusti-
fied
Retribution , in this issue
p
50
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epistemology.
Such
rationalism
leaves
wholly
unexplained how first
principles
are to
be justified,
since they cannot
be
deductively
justified
as following from
some even
more
basic, more first principles. Al-
though
some
may find
self-evidence , God's word , or transcendental
deductions
to
be
acceptable
starting
points
in justifying moral belief,
I
do not.
First principles
can
be justified
only
by showing
that
they
imply, but are not
implied by both secondary principles
and
particular
judgments
that we
accept as
true.
To deny
this
as
a form ofjustification
would be
to
deny the
possibility
of justifying any
first principle,
and
to
deny
that
would
be to deny
the justifiability of any
judgment
that
is
itself
justified
by such
first
principles
(which, on the rationalist view
of
justification
here considered, are ll moral judgments).
The history of rationalist justification schemes in ethics
should
not
make
one sanguine about
finding
indubitable
first principles.
The
absence of such
self-evident
first principles
is
alone enough
to dispatch
the objection
here considered to my
mode
of
justifying the retributive
principle. If retributivism is a first principle of morals,
then it neither
needs nor can have any other form of justification but the form I
have
offered.
Still,
the retributive
principle
seems to be
part and
parcel of
yet more
general
principles, so
it
is worth pausing
briefly to examine
this alternative
possibility.
The
battleground
of
theory known
as
the
philosophy of
punishment
is
littered with the corpses of
supposed
general
principles
from
which
the retributive
principle is supposed to
follow. Giving
an
offender
the
punishment he deserves
solely
because he deserves it
has been
said
to
follow
from a
principle that:
debts
to
society must be repaid (coupled
with the
further
idea
that
crime
creates a debt and
punishment
is a
form
of
repayment); wrongs
must
be
annulled (coupled
with the further idea
that
punishment annuls them); God's anger must
be placated (coupled
with the further thoughts that God is a retributivist
and that human
punishment placates
her); wrongdoing must be
denounced
(coupled
with the further
belief
that
punishment
is
the appropriate form of
denunciation
despite
there
being
other,
less
draconian
forms);
etc.
7
David Dolinko correctly
observes that
in justifying
retributivism I have
taken the
path of avoiding the
common
retributivist metaphors
alto-
gether
rather than
seeking
to
unpack
and develop them .
8
I have taken
27 For
a more complete taxonomy, see J.G. Cottingham, Varieties of
Retribution
1979)
29
Philosophical Q. 238-46.
28
Dolinko, supr n. 3, at
555.
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this
path
because
I
see
very
little
that
is
correct
(or in
some
cases
even
intelligible)
in
these
views.
2 9
One more
general
principle
that does not seem clouded
n
metaphor
is
a general principle
of
desert.
30
Such
a
principle
arises
because of
what
might be
called
the secondary
moral
rights and duties we all
possess.
I have
a primary duty not
to
break
(most
of) my
promises
and another
primary duty not
to injure or kill (most of) my fellow persons; I have a
primary
right to keep (most of) the fruits of my
own
labors. I also
have
what I shall
call
secondary duties and rights respectively,
a duty
either
to
perform
my promise, even
belatedly,
or
in
some other way to
put the promisee
in
as good a position as he
would
have been in
had
I
kept
my
promise;
a
duty
to correct
the
injustice that
I
have caused in
injuring
or
killing
another by making amends
in whatever way I
can,
including
compensation;
and a right to
have any
who
deprive
me
of
the
fruits
of
my own
labors
either
to
give
those
things
back (or
pay
me
their
value where
they cannot
be given back). It is
breach of
these
secondary
duties
th t
warrants the judgment that I ought to
be made
to
keep
my
promise or pay
its
equivalent,
or
that
I
ought
to
be
made
to
compensate
the
victims
of
my
violence; it is violation of the duty correlative
of
my
secondary rights
that
warrants
the
judgment
that others ought
to
be
made to
give me back my property or its equivalent. We idiomatically
make
this ought judgment using
the
word
desert :
the promise-
breaker
deserves contract sanctions against him, the tort-feasor
de-
serves tort law
sanctions
against
him,
and the laborer
creating a
thing
deserves
to
have those incidents of ownership
in that thing that
are
distinctive
of
property
rights.
The
unity
ofa
principle
of desert covering all of these situations
does
not lie in the species
of
legal
coercion
to
be justified, although there
is
in fact
some overlap
in
contract, tort, and property remedies. Nor
does
the unity of
the principle
lie in
the intrinsic goodness
of
giving
people
what they deserve
for then
the term desert would
mean
no more
9 An exception may
be
Herbert
Morris'
well-known
principle
of
fairness
which may
well survive the by-now voluminous criticisms made
of it.
See
Morris,
Persons and
Punishmente 1968) 52 The Monist 475-501.
30
This
is to take
up the
suggestion I offered in
The
Moral Worth
of Retribution ,
su r
n.
1 at 182, 186.
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than,
intrinsically
right .
31
Rather,
the unity of
the
principle of desert
is to be found in
the common
conditions
of culpability
and of
wrongdoing
(or in their
praiseworthy
analogues,
of meritability
and
of right
doing ).
I
refer
to
the
elements
of
voluntariness,
causation, and
justi-
fication,
and
of
intention and excuse,
out
of
which wrongdoing
and
culpability
respectively are
constituted.
There
is a
general
principle of
desert
in
that
the
conditions
of wrongdoing
and
culpability
are
similar.
3
2
The retributive
principle that
offenders should
be punished
be-
cause
and
only
because
they have culpably done
wrong is an instance
of
this
more
general principle
of
desert.
We
all have
primary
duties
not
to
do
the
sort of acts
that malum
in
se criminal
statutes
prohibit. We
lso
have
secondary
duties
to allow
ourselves
to be made
to suffer if
we
have
violated these primary
duties.
The trigger for these
secondary
duties is
again
our culpability in
violating
the
primary
duties
that
define
wrongdoing.
Although it takes considerably
more
detail
than
this
to
sketch
the
unitary
principle
of desert, my
present
interest is in
a
challenge pre-
sented
to
such a principle,
however
it
may
be
filled
out.
I
refer
to
the
objection
that desert
does not
give
a
sufficient reason
to
punish. As
put
by David Dolinko, who
advances a form
of
this
objection:
In general,
the
sense
of
'fittingness'
or 'propriety'
inherent
in someone's getting
what
she
deserves
is
a
very
poor
guide to whether
it
is
permissible
to
give
her
what
she
deserves .
3
Dolinko's main
ground for
reaching
this
conclusion
(about
the
incon-
clusiveness
of desert)
lies
in
his ideas
of
rights.
Dolinko correctly
observes that
each of
us has
rights
generally
not to
be
made to suffer.
It
is
thus
entirely
possible
for
a person to deserve
treatment
which
it
would
nevertheless
violate
his rights
to be
given ,
as
Dolinko
also
31
I
am doubtlessly
regimenting
the usage
of desert* here
a
bit
so as to
give it this
descriptive
content.
Some
of
the
ordinary usages of desert
are such th t it
can mean
no
more
than intrinsically right' or
intrinsically
ought
to be done .
Such broad,
purely
evaluative usages
of desert account
for the
sense
of Mackie and
others
that
desert'
is
an
empty concept.
See
n.
23,
supr
32 For
an unpacking of
the
notions
of wrongdoing
and
culpability
in the criminal
law
context,
see Moore,
A Theory of
Criminal
Law Theories ,
supr n.
15.
For
a
comparison
of some of the
conditions
of culpability
in
contract
and
criminal
law, see
H. L.
A
Hart,
Legal
Responsibility
and Excuses ,
in his
unishmentand
espon
sibility
(Oxford, 1968 .
33
Dolinko,
supra n. 3, at 543-44,
558; Dolinko,
supra n. 8
t 1627-30.
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o serves
4
One might,
for example,
believe
that l x
talionis
is
what each
offender deserves
so that the
torturer deserves
to be tortured; yet
one
might
well
believe
that
the offender has a
right not to
be tortured
anyway. Dolinko's
hoped-for
conclusion is
that therefore,
desert is in
general
a poor
guide to
answering
the
question
of
what
we should
do
to
offenders.
3 5
Dolinko's
general
conclusion does
not,
of
course,
follow
from his
correct
observation
that we
all have
rights
not to
be deprived of
our
liberty, not
to be tortured,
not to be
killed, etc.
It
would
be
a crude
caricature
of
the
retributivist
to
make
him
monomaniacally
focused
on
the achievement
of retributive
justice. The
retributivist
like anyone
else
can admit
that there are
other intrinsic
goods,
such
as
the goods
pro-
tected
by
the
rights
to life, liberty,
and
bodily integrity.
The retributivist
can also admit
that sometimes some
of
these rights
will
trump
the
achieving
of retributive
justice
(as
in
my l x
talionis example
above).
Yet to
assert
that
all
such rights trump
the
achieving
of retributive
justice
is simply
to beg
the question
against
the
retributivist, whose
essential
thesis
is
that
they
do
not. Particularly
with
regard
to
the
rights
to
life
and
to liberty,
culpably doing
wrong forfeits
such rights
so
as
to achieve retributive justice,
which
one
can accept without thinking
that all rights
of offenders
are so forfeited.
Dolinko's
attempt to
remedy this first
defect of
his
analysis
intro-
duces
a
second. Dolinko
correctly
quotes me for the
retributivist
point
that
'the
moral
desert
of
an
offender is a sufficient reason
to
punish
him
or her'. 1
6
Because
the
retributivists
must show that
giving
an
offender
what
she deserves does not
violate any rights
not forfeited
by the
offender's culpable
wrongdoing
Dolinko would
admonish
me
and
other
retributivists to acknowledge
that
'criminals
deserve
to suffer' is
simply
not
a sufficient explanation
of
why
we are
morally
permitted
to inflict
such
suffering
on
them .
37
Here
Dolinko
fails to
attend
to
the
context-sensitivity
of
any talk
about
sufficient conditions ,
my own
included. Sufficiency
is like
qualitatively
identical
in
that
we
almost
never
use
such
words
or
phrases literally.
What
we
always
mean
when we say
of two distinct
particulars
that
they are qualitatively identical, is
that
within
some
34
Dolinko, supra n.
8 at 1629
35 Ibid.
36 Ibid.
t
1628 (quoting
Moore, 'The
Moral
Worth of
Retributivism,
supra n.
1 at
180 .
37 Ibid. at
1630
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that
there
is
any gap
here.
As we
have
seen,
the
general
principle
of
desert asserts that the
culpable
wrongdoing
(desert)
of X is
a sufficient
reason
to visit
various
legal
sanctions
on
K
As we
have also seen,
the
context-sensitive
use of sufficient here
allows for the
possibility
that
there
are
overriding
reasons
(such as non-forfeited
rights
of X) not to
visit
these
legal sanctions
on X But this
last
possibility presents a gap
only when
it
becomes actualized. And
what are the
overriding reasons
not
to make the culpable
promise-breaker
restore the
promisee to the
status quo ante to make
the culpable tort-feasor compensate those
whom he
has
hurt,
and
to
make
the criminal suffer his
deserved
pun-
ishment?
Certainly the general
rights
of all of
us not to
suffer such
sanctions provide us
no
such overriding reasons,
since we forfeit
such
rights
precisely
by the
culpable
wrongdoing that
constitutes desert.
It might seem that this difference
between
Dolinko
and
myself
comes
down to
a
burden
of proof issue, Dolinko
urging me to
show that there
are no
such
overriding
reasons
and I urging Dolinko to show that there
are. If so,
surely
the burden
of
proof is on the critic
of
retributivism
on
this
issue.
After all,
once
it
is admitted
that
desert constitutes a
prima
f cie reason to punish, surely it is incumbent on those
who urge us not
to punish
to show us
why we
should
stay
our hand.
It might
also
seem that I have
done
little
to justify
the
more
general
principle
of
desert,
even
if
I
have
shown
how the
retributive principle
follows
from
it.
But
of course, that objection can be
raised
ad infinitum
for any
answer that
might
be given. That
is
the
problem with
thinking
th t justification
has to be a matter
of
deducing the
principle
to be
justified from
one that is
yet
more general.
We must give up
that picture
of
how
justification
must
proceed.
Once we
do
so,
then
whether
we
are
justified in
believing
in retributivism
cannot depend on
our
finding
some
yet
more
general principle with
which to justify it.
3.
A
common objection to
a
coherentist justification of moral prin-
ciples
goes
like this:
since the data being
cohered
into more
general
principles are our
own judgments and feelings, the principles
that
result
are
only
a
coherent
expression of
our own sentiments.
They can
have
no claim to
ethical
objectivity given
the
nature
of
the data out of which
they are constructed.
s
Joel Feinberg