Oldenquist_Explanation of Retribution

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Journal of Philosophy, Inc.

An Explanation of RetributionAuthor(s): Andrew OldenquistSource: The Journal of Philosophy, Vol. 85, No. 9 (Sep., 1988), pp. 464-478Published by: Journal of Philosophy, Inc.Stable URL: http://www.jstor.org/stable/2026803

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464 THE JOURNAL OF PHILOSOPHYAN EXPLANATION OF RETRIBUTION

n HEuniversal nsistenceupon retributionfor grievouscrimesis deeply felt, intractable, and largely independent of utilitar-ian considerations. The pursuit of Adolph Eichmann, JosefMengele, and other Nazis in their dotage, tending their rose gardensin South America, makes no utilitarian sense whatever. They will notdo their crimes again, nor would their punishment deter others. Onthis issue the great majority of us find our God in the Old Testament,not the New. No one who reads accounts of courtroom reactions ofcrime victims, or of the parents of children whose murderers havebeen convicted (or acquitted), can doubt that the world demandsretribution for criminal harm-not just compensation or restitution,which often is impossible, but retribution. After every conviction thevictims, or their relatives, applaud, or cry with relief, and otherwiseindicate that the world could never be right again until the one whohurt them so terribly received his due. Some of these people will callit justice, some will defiantly admit it is revenge. But, if these court-room responses lack moral significance and are mere effusions ofvengeance, so too does the 40-year search for Josef Mengele and

other Nazis. Whether retribution nonetheless has utility is an issue Ishall pursue further on.Whereas the desire for retribution does not prove it right, I believethere are arguments that explain the function and nature of retribu-tion in such a way that together they provide some considerations infavor of morally accepting retributive punishment. The first argu-ment aims to establish the social need for retribution, on the groundsthat humans necessarily live in moral communities and the existenceof moral communities depends on the acceptance of retributive jus-tice. The second argument rebuts the objection that an insistence onretribution is a mere desire for revenge and not a moral claim. Thisargument aims to show that retributive justice is sanitized revenge,that is, that revenge becomes retributive justice when certain empiri-cal social conditions hold. After these arguments are laid out, weneed to take up the possibility that retributive judgments might stillbe false moral judgments, even if it is established that they are moraljudgments and are socially necessary; and a final task is to examineutilitarian grounds for retaining the social institution of retribution.I. MORAL COMMUNITIESThe first of these two arguments is the following:

(1) Humans are innately social animals who can flourish and achievetheir full humanity only in society.0022-362X/88/8509/0464$01.50 ? 1988 TheJournalof Philosophy,Inc.


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AN EXPLANATION OF RETRIBUTION 465(2) A human society is a moral community.(3) A moral community is such that members hold one another person-

ally accountable for harm to fellow members and to the commongood.(4) To hold persons personally accountable for harm to fellow membersand to the common good is to consider them deserving of blame andpunishment.(5) To consider persons deserving of blame and punishment is morallyto accept retribution.Therefore:

(6) Humans can flourish and achieve their full humanity only if theymorally accept retribution.Step (1) is empirical, except for debate about achieving full hu-manity. This is intended to be a very strong claim; a way to assert itwithout the quasi-evaluative language is that breeding populations of

humans survive only in societies. But, even if they could physicallysurvive outside society, their lives would be so stunted that we wouldnot recognize them as human. Most anthropologists and students ofhuman evolution maintain that our ancestors were social animalsthroughout the Pleistocene, before we were even human. This is tosay we are innately social, not social by convention or a "socialcontract," and that we evolved the emotional equipment for cooper-ative social living.

Extended infancy, pair bonding, and loss of estrus are evolution-ary developments of hominids as they became social animals; and theevolution of these traits probably was reciprocally reinforced by earlysocial life. Collaborative hunting and gathering, tool use, language,the need for familiar people, territory, and routines, the universalfear of being outcast, and the world-wide development of ritual andceremony are among the things constitutive of human sociality. Ihypothesize also that humans became genetically primed to need thesocialization process itself, and not just its benefits. As Mary Midg-ley' put it, humans come half finished, requiring a culture to com-plete them.

By a moral community (in step 2), I mean a society that includesthe following features.(a) Members have a sense of societal identity and social boundaries, andare able to distinguish members from nonmembers. Unless alien-ated, their sense of who they are is partly constituted by theirsocial identity.1 Beast and Man (Ithaca: Cornell, 1978), p. 286.


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466 THE JOURNAL OF PHILOSOPHY(b) Thereare personalvirtues,traditionsand ceremonies,and rulesofsocialmorality hat are sharedand consciously ransmitted romgenerationto generation.(c) The communitys, to its members,a noninstrumental alue,a com-mon good that is more than a mere protective associationorinterest group.(d) Membershavegroup loyaltyas well as impersonalmorality,and areinclinedto be proud when their communityprospers,ashamedwhen it is disgraced,and indignantwhen it is harmed.In order to live together cooperatively people must be socialized.We want the behavior of people we meet to be reasonably predict-

able and nonpredatory. A human community, unlike (but not com-pletely unlike) an ant colony or a herd of gazelle, has social moralityand group loyalty because we can conceptualize, name, and teach thedispositions for social cooperation. We also can figure out the ad-vantages of being free riders, which requires social countermeasures.A moral community is just the form a herd or colony takes, given aspecies with the innate sociality, intelligence, and language abilitythat characterize humans.A moral community is distinct from an interest group or protectiveassociation. People may unite to achieve a common end such asdefeating a tax bill. They form an interest group; its value is whollyinstrumental and, if it fails, its reason for existence is gone. Aninterest group makes no claim on our loyalty and one cannot bealienated from it. But an interest group might evolve into a moralcommunity; then it is an "organic" community, its good being morethan instrumental to its members. In this case one of one's socialidentities derives from it, and one can be proud or ashamed, loyal ordisloyal, or alienated from it.In step (3), which says that in a moral community members holdone another personally accountable for their behavior, one coulddefine 'personally accountable' as causally accountable and such thatincarceration would be utile. On this interpretation, step (3) wouldnot imply step (4)-that some people are considered to deserveblame and punishment; or, if it did imply (4), it would be in a sense of'blame' and 'punishment' such that (4) did not imply (5)-that onemorally accepts retribution. I mean 'personally accountable' in asense that makes (4) and (5) true by definition. Thus, (3) is the crucialpremise, so let us now turn to it.A sense of belonging to a community depends on an ability toindividuate it from others, which in turn depends on being able totell members from nonmembers. One way is for members to wearblue feathers. A more important way, in part definitive of the differ-


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AN EXPLANATION OF RETRIBUTION 467ence between members and nonmembers, is in terms of who is heldpersonally accountable for harm and expected to make sacrifices forthe common good. This assignment of responsibility is complex,depending on the degree of harm done and on social distance. Forexample, outsiders are not held accountable for careless criticism orfor the neglect of my club, neighborhood, church, or labor union;but almost any normal human is held accountable for arson or rob-bery. I say 'almost,' because those whose social distance is great, suchas Amazonian tribe members, often are not held accountable. Re-tributive thoughts and feelings do not arise unless the criminal is insome sense one of our own, someone from whom we expect compli-ance and group regard; otherwise our thoughts remain utilitarianand do not go beyond self-defense or quarantine. We are indignantand angry when the transgressor belongs to our society (in somecases just being a member of a nonprimitive human society isenough), and retribution is the expression of this indignation.A society that never held its members personally accountable forgood or evil, never expressed its collective will through praise andcensure, would have a weak conception of the difference betweenmembers and nonmembers; and, what may amount to the samething, it would have a weak or diffuse conception of a common goodworth defending. It is doubtful we could possess common values anda common way of life if we were totally lacking in indignation ataffronts to them. Serious crimes, when they go unpunished, diminishthe value we place on our social identities, and hence our valuationof ourselves.Only if I regard a community as mine am I capable of pride,shame, or indignation regarding it. In general, membership in amoral community is revealed by who is affronted by insults to it, whoenlists, or puts in time and contributes money, by who is blamed andcriticized for not behaving in these ways, or feels shame and guilt. Itfollows that a powerful way to tell young delinquents they still belongand are members of a moral community is to hold them personallyaccountable and punish them, whereas not holding them account-able is to alienate them more than they already are, to cast them outemotionally. Criminal punishment that is not done on openly retrib-utive grounds exacerbates a criminal's alienation from mainstreamsociety.A moral community is an intricate network of felt obligations andexpectations. Each of us has a number of social roles and the viabilityof society requires reliance on others for the behavior expected of aparent, teacher, student, passerby, neighbor, driver, business per-son, worker of any kind, and so on. We constantly judge the perfor-


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468 THE JOURNAL OF PHILOSOPHYmance of the people we encounter, and when it falls short, as every-one's does occasionally, we criticize them, hold them responsible.

What I am suggesting is that retributive criminal justice and thesense of mutual responsibility found in well-functioning moral com-munities are two modes of a common moral sentiment. Crimes aresimply extreme cases, within a moral community in which there is aconstant readiness to blame or criticize free riders, those who fail todo their fair share, or are exploitative or threatening. This is theessence of retribution: holding one another accountable. It is notpeculiar to crime, but is manifested everywhere in society in ourmutual accountability for meeting community expectations.If accountability is an essential feature of community, and criminalpunishment concerns its dramatic extreme, there are implicationsfor social control. There is a continuity from mild moral offenses thelaw leaves alone to serious crimes. The morally important feature ofthis continuum traditionally has been a delinquent's degree of dis-grace. Fining, jailing, or executing someone need have nothing to dowith punishment. Punishment is essentially a moral notion and hasno necessary connection with violence or deprivation of freedom. Itis, ideally, putting someone in disgrace and the eliciting of repen-tance. If we just fine someone, we merely impose a cost; if we justtake him out in the yard and shoot him, we are simply disposing of aproblem, as we do with a disease or a mad dog. But, if we try to elicit aconfession and contrition, we are seeking a moral transaction with afellow human being with whom we share at least some principles.This may be one reason why regimes whose moral foundations arethe most dubious often try the hardest to elicit confessions fromprisoners and thus give themselves the appearance of moral le-gitimacy.It might be objected that harm, in the form of fines, jail, or exe-cution, is essential to punishment. This is right if one also acceptsdisgrace and ostracism (and the fear of them) as forms of harm. Theycan, after all, be feared and hated more than a fine or beating.Nonetheless, it is a mistake simply to put disgrace and ostracism on alist of harms. It is the same mistake J. S. Mill made in treating the"internal sanction" of conscience as merely a pain, like toothache;for disgrace and the threat of ostracism, in addition to being harms,are moral notions essential to punishment and are what make pun-ishment a moral transaction. You can harm a mad dog but youcannot punish it because you cannot disgrace it, and you cannotdisgrace it because it does not share your moral community.It follows that it is impossible to punish some people, for if they arecompletely alien or sufficiently alienated, they cannot be disgraced


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AN EXPLANATION OF RETRIBUTION 469and they welcome rather than fear ostracism. An Amazonian tribecan harm me but it cannot punish me for violating its taboos. I mustto some degree belong to a group, recognize it as one of my moralcommunities, before it can punish me. Hence, completely alienatedcriminals can be disposed of or quarantined, but they can be pun-ished in at most a secondary sense. That is, as alienated rather thanalien, they belong to my moral community and therefore ought to besusceptible to disgrace and fear of separation, but they are not andyet we impose the rituals of punishment on them anywaybecause westill claim these criminals as ours.In tribal settings, fines or beatings are often more important fortheir symbolic role in a ritual of moral censure and disgrace than forthe material harm they do. Harsh words, hard looks, temporaryostracism, and disinteressement are punishment when the object ofthis treatment has an adequately developed social identity. This iswhat punishment always has been in tribal society, in families, and inclose-knit modern societies. To the extent that ritual censure is re-placed by simply damaging someone-by fining, confining, or kill-ing-to accomplish some future (utilitarian) goal, punishment hasbecome another thing, though the name may stay the same. Hence,where dangerousness does not require jail, one should think first ofpunishments that put the potential delinquent at risk, in his localcommunity, for disgrace and making restitution.Putting crime in a completely separate category from misdeeds weblame without the aid of the law leads us to demoralize crime, whichis more clearly a mistake than the decriminalization of immorality:when criminals are not seen simply as great violators of the mutualmoral expectations in our daily social intercourse, but instead areviewed as mere harmful agents, they are removed from our moralcommunity. They are removed because of a philosophical mistakethat alienates them more than they were before. Retribution conse-quently is intrinsic to the cohesion of a moral community. This doesnot imply we should be constantly censorious or rant at one another;it is that we risk disapproval, or withdrawal of trust or privileges,when we disappoint normal expectations of cooperation, loyalty, anddoing our fair share.

There is a problem beyond the scope of this essay about whether"moral communities," as I have defined them, can ground moralrights or duties. It may be thought that my moral communities can beonly "relative" or subjective grounds, since they are bounded geo-graphically or, alternatively, are bounded by the idea of my own kindunder a certain description. And hence it may be argued that moralduties can legitimately arise only within a single, objective moral


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470 THE JOURNAI, OF PHILOSOPHYcommunity-perhaps Kant's community of rational beings. Onereply is that I take the notion of "moral duty" to be univocal invarious moral communities, and, if there is a single core meaning,derivable from an objective conception of a global moral commu-nity, this is what I mean by 'moral duty.'But I doubt the existence of a single, overriding moral communityon which all conceptions of moral duty are dependent. More plausi-bly, every moral community is group egoistic, grounding rights andobligations that are both prima facie and relative to the good of one'sgroup (under some description). It is possible that even Kantian andutilitarian conceptions of the domain of morality are "tribal" in thesense of being expansive conceptions of one's kind. It is also quitepossible, however, that there exist moral ideals such as rationalityand happiness which are independent of the notion of a moral com-munity as I have defined it-that is, ideals describable without theuse of egocentric particulars and hence independent of any concep-tion of the good of my community, my species, my fellow rationalbeings, and so on. If so, what protects the good of one's communityconceivably could clash with these ideals. I discuss this problem atlength elsewhere,2 but cannot pursue it further here.Some retributivists argue that punishing criminals is a form ofcommunication which tells the criminal how wrong the act is, orhopes to show him it is wrong, or tells him that society condemns it.These views have been called teleological retributivism, howevercontradictory that label may sound. Although I agree that one func-tion of punishment is to send a message to the criminal, I think themain message is something else: on the communitarian view I amdefending, what a moral community communicates to criminals bypunishing them is that they still belong to the community, they arestill members. For it is our own kind that we hold responsible; we donot punish wild animals, bacteria, or total aliens, but instead avoid ordispose of them. Institutionalized retributive punishment is a ritualact that includes the criminal in the ritual, and a society does notinclude outsiders in its rituals. Although this is not its only or even itsmain purpose, retributive punishment (excepting execution and itsanalog in tribal societies, banishment) aims at a criminal's contritionand reintegration into the society.

Robert Nozick3 has suggested that the function of retributivepunishment is to reconnect the wrongdoer with correct values; it is a

2 I examine the relations between group egoistic and impersonal morality inNormative Behavior (Washington: University Press of America, 1983), and in TheNon-Suicidal Society (Bloomington: Indiana UP, 1986).3 Philosophical Explanations (Cambridge: Harvard, 1981), p. 374.


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AN EXPLANATION OF RETRIBUTION 471way-of-last-resort for correct values to have an effect in our lives.Since wrongness qua wrongness has no causal effect and the rightvalues failed to motivate the criminal, we make, via punishment, theconnection in his life with values that he failed to make by livingmorally. I think Nozick is right in affirming the importance of "re-connecting" the criminal with the moral norms of the community.But his view, like the communication theories, also appears to justifyretribution in terms of what it does for the wrongdoer instead ofwhat it does for us.I suggest, on the contrary, that a moral community exacts retribu-tion for its own good and not primarily to inform, connect, cure, use,or to send any kind of message to the criminal. All of the above areuseful and at times desirable, but the essence of retributive punish-ment lies elsewhere. We would not punish Hitler, Josef Mengele, or abrutal rapist-slayer, primarily in order to rectify their relation to theuniverse. We would kill or imprison them because of what they did tous, and have no self-respecting alternative.Punishing serious crime is one of the rituals that contributes to asociety's identity as a living moral community, and simultaneously, asSusan Jacoby4 has said, denies promiscuity to the retributive urge.Like a bear dance or a funeral, it contributes to a society's identityas a living moral community. In the words of the criminologistMartin Levin,5

Our penalandjudicial systemsserveother goals thanloweringthe rateof recidivism.And the tensionamongthesegoalscannotbe resolvedonutilitarian rounds;one reason is that the punishmentof criminalss, inpart,a symbolicactivityhatexpressesour ultimatevalues ibid., p. 103).The importance of retribution is that, without taking proportional

retribution in grave cases, a society dishonors itself, and underminespublic confidence that the society takes itself and its values seriously.If Israel, for example, forgave the Nazis it captured and convicted, itwould compromise the dignity and honor of the Israeli state. Thestrength of our indignation and demand for retribution dependsboth on the heinousness of the act and on the extent to which thedelinquent is thought of as one of our own. This is why we do notview tribal head-hunting the same way we view ordinary murder by amember of our own community, and why genocide by a modernindustrial nation is so execrated.These reflections are bound to make some people uneasy. Affirm-ing the importance of ritual suggests an organic theory of society.

4 WildJustice: The Evolution of Revenge (New York: Harper & Row, 1983), p.182.5"Crime and Punishment and Social Science," The Public Interest (Spring1972).


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472 THE JOURNAL OF PHILOSOPHYAnd the organic theory has been part of a fascist conception of thestate according to which persons are of value only as parts of a largerwhole, dispensible and of no intrinsic value as individuals. Given theconnotations of the "organic theory," it is better to speak of a com-munitarian theory of society, which puts one in the company ofTocqueville rather than Mussolini. It is, I think, a mistake to abandoncriticism of radical individualism because of what Charles Taylor6called the "totalitarian menace," a phrase he used when he wascriticizing the "negative theory" of freedom. Ritual may remindsome of Hitler's Niirnberg rallies, but it remains the most significantway in which people, world-wide, distinguish the act of a communityfrom that of an individual. Marriages, convocations, commence-ments, celebrations, inaugurations, school recognition ceremonies,holiday observances, and countless other rituals help us take com-mon goods seriously, maintain social identities, and diminish alien-ation, and it would be absurd to abandon or denigrate them becauseHitler had Niirnberg rallies.Second, moral communities as I construe them are multiple,nested, overlapping, and generate only prima facie obligations fortheir members. Any obligation to one's community (whether family,nation, or species) can be overridden by stronger obligations to othermoral communities, or by moral principles independent of commu-nities. The idea of a moral community imposing obligations thatswallow up the individual is more tempting if one thinks there is onlyone genuine moral community.Finally, I think the evidence is overwhelming that people needsocial identities-essences, as it were-and that otherwise they feelisolated, alienated, and without significance. Unless people nonin-strumentally value something other than themselves, they will find itnext to impossible to value themselves. This is what it means to say weare innately social animals and it is the basis for criticism of radicalindividualism. But it is one thing to say people cannot flourish with-out social identities and a sense of possession toward their societies,and another to say they are mere parts of society like bricks in a wall.If I cannot flourish without belonging to moral communities, it doesnot follow that I have no value as an individual and can be sacrificedfor the community; indeed, one of the pre-eminent values of mycommunity may be the value of individuals. Again, it would be ab-surd to abandon communitarian social institutions and becomealienated because Mussolini viewed citizens as dispensible parts of anaggressive nation state.

6 "What's Wrong with Negative Liberty," in The Idea of Liberty, Alan Ryan, ed.,(New York: Oxford, 1979).


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AN EXPLANATION OF RETRIBUTION 473II. SANITIZED REVENGECan revenge be kept out of this? Can we not show that retributivejustice is the moral idea that some criminals deserve to be punished,and that this is a distinct moral concept with no necessary connectionwith revenge? Can we not affirm a normative retributive premise thatmakes no reference to desires or to moral psychology? C. W. K.Mundle,7 for example, offers such a premise. He says, "The fact thata person has committed a moral offense provides a sufficient reasonfor his being made to suffer" (ibid., p. 221). But, if someone simplysays this claim is false, there is nothing more to be said by anotherwho thinks it is true. And this is not its only difficulty. It affirms; but

it does not explain anything about retribution's universality, origin,social function, or relation to retaliation. A philosophical concept ofretributive desert, separated from both vengeance and utility, is abloodless notion which cannot begin to account for the vehemencewith which one seeks to punish the acts of Nazis and brutal criminals.Utility can tell us, roughly, how much to punish a kind of crime toreduce its future occurrence to an acceptable level. The idea ofrevenge makes understandable (whether or not we reject it on moralgrounds) people's insistence on harming certain criminals. But retri-bution, distinct from utility and revenge, is a philosopher's phantom,getting what sense it has from its secret association with the idea ofvengeance.Can vengeance be a moral category, or is it inherently barbaric,destroying the morality of what partakes of it? As we have seen, wecannot have a moral community unless its members are personallyaccountable for what they do; personal accountability makes nosense unless it implies that transgressors deserve punishment-thatis, they are owed retribution; and I shall add now that there is nodoubt that retribution is revenge, both historically and conceptually.I do not believe that the logic of this chain can be broken-frommoral community, to accountability, to retribution, to revenge. Nei-ther do I believe it needs to be.The solution lies in seeing that judicial retribution is not mererevenge but revenge that warrants its new name by satisfying certainsocial conditions. In simple revenge or retaliation the victims (ortheir relatives) set and carry out the punishment. Such retaliation isunpredictable from case to case, sometimes gets the wrong person,often is ineffective because the victim is not strong enough, andusually is harsher than nonvictims would think is fitting. Personalretaliation also has no built-in mechanism for termination, the result

7"Punishment and Desert," Philosophical Quarterly, iv, 16 (1954).


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474 THE JOURNAL OF PHILOSOPHYoften being an endless feud. This situation is not totally unlike whatJohn Locke conceives punishment to be in the state of nature.If revenge is the source of the passion and emotion behind ourinsistence on just punishment of criminals, it is impossible to elimi-nate it; we can only cleanse it, civilize it. As Jacoby says,

The taboo attachedto revenge in our culture today is not unlike theillegitimate uraassociatedwithsex in the Victorianworld.The personaland socialpricewe payfor the pretensethat revengeandjustice havenothingto do witheach otherisashighasthe one paid bythe Victoriansfor their convictionthat lust was totallyalien to the marital ove sanc-tioned by church and state (op. cit., p. 12).I suggest that when certain empirical conditions are met, retalia-tion, "getting even," turns into retributive justice, a moral concept. Icall this justice as sanitized revenge. The conditions are that pun-ishment:(a) is appliedbyofficialswhoare not friendsor relativesof the victimordefendant;(b) is applied consistently or similarcases, and hence is predictable;(c) is applied in accord with publicallypromulgatedprocedures andpenalties.(d) isdecidedand pronounced n a context of ritualand ceremony, husconveying hata community nd notjust anindividuals speaking.(e) is decided after due deliberationand not in the heat of passion.These conditions require refinement and perhaps additional oneswill need to be added. When enough such conditions hold, we haveretributive punishment, a moral act, and not mere revenge. I do notsuggest that these are necessary and sufficient conditions. "Retribu-tivejustice" is an open or cluster concept, the relative weights of the

conditions that turn revenge into retributive justice depending ontheir degree, how they are combined, and the particular circum-stances. Neither does this conception of retribution yield a formulafor determining what punishment one should believe "fits" a partic-ular crime. We have general feelings for what is "too much" and"too little" punishment, and in between we depend on a combina-tion of reciprocity, the degree to which the crime is feared and hated,predicted utility, and unexplained (perhaps unexplainable) feelingsof appropriateness.A law that is imposed unequally for equal crimes, or imposed byvigilantes instead of by agents of social institutions, is rightly said tobe unfair. Punishment by society protects you from your victim'senraged relatives, the fear of which could last forever, and substi-tutes solemnity and ceremony for their rage and unpredictable vio-lence. My idea is that nonmoral retaliation simply turns into retribu-tive justice when enough of these empirically describable conditions


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AN EXPLANATION OF RETRIBUTION 475are satisfied; there is no special ingredient, metaphysical, moral, ortheological, that must be added.Revenge "turns into retribution" in that where it would be truethat I desired out of revenge that C be harmed, if we change the casejust by adding the conditions, then it is true that I believe that Cdeserves to be punished. There are certain other requirements suchas my believing the conditions are met, but I need not believe theseconditions turn revenge into retribution. People can be mistakenabout whether they seek revenge or retribution, just as they can bemistaken about whether they have a moral or a nonmoral belief.When revenge is expressed through institutional ritual and cere-mony, the actions of individuals are transformed into actions of acommunity; the private act of an individual becomes, through ritual-ization, the moral act of a collectivity. The indignation of the commu-nity is expressed in solemnity, black robes, and ritual, which is atransformation and sublimation of anger and invective. If all of this isso, revenge is not eliminated and replaced by something totally dif-ferent, but only civilized, "sanitized." In distinguishing retributivejustice from revenge, we do not take the revenge out of retribution-this cannot be done-but show how circumscribing and institu-tionalizing retaliation turns it into a moral category, warranting anew name. The socialization of revenge transforms it into justice, butpossibly false justice, a problem we must address.The anthropologist Christoph von Fiirer-Haimendorf8 hypothe-sized the evolution of criminal justice from personal retaliation.There is a moral development from private to public intervention asa society becomes larger, more stable, and, I would add, develops asense of a common way of life which needs to be protected. Amongthe primitive Daflas, a non-Hindu tribe in India, Hobbes's war ofall-against-all began at the door of each long house, and "justice"was no more than retaliatory raids by relatives. The more complexsociety of the Gonds, another non-Hindu group in India, created asense of social identity among as many as forty or fifty villages. Thesize of Gond society ruled out personal retaliation, Gond publicopinion demanding institutionalized procedures because many peo-ple now felt they had a stake in the quarrels of strangers; they wantedpunishments to have authority, predictability, and to make sense.The size and complexity of Gond society constituted a threshold inthe evolution of criminal justice out of personal retaliation.

The substitutionof the principleof retributionat the handsof kinsmenby ajudicialprocessand the impositionof legalsanctionsbythecommu-nityas a whole,marksa distinctstagein the development f moraland8 Morals and Merit (Chicago: University Press, 1967), p. 105.


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476 THE JOURNAL OF PHILOSOPHYjudicial concepts.. . . This development of a public sense of moralityandthe assertionon the partof societyof a rightto intervene in privatedisputesof individualshas nowhere been a sudden process (ibid., p. 105).

III. THE PROBLEM OF JUSTIFICATIONOne may object that it is unimportant whether people believe thatsomeone deserves retribution; what is important is whether the be-lief is true. The two arguments I presented conclude that morallyaccepting retribution is necessary to a viable moral community, andthat revenge, when certain empirical conditions hold, turns intoretribution. They do not conclude that people are morally account-able or that they deserve retribution. Of course, if we agree that weought to have viable moral communities, then it follows that weought morally to accept retribution: but not even from this can onededuce that anyone deserves retribution. Thus, there are two nor-mative claims one would like to establish. The first, 'We ought mor-ally to accept retribution', is easy, requiring only the premise 'Weought to do what is necessary to flourish and achieve our full human-ity'. It is not that I have the slightest idea how one would prove thatpremise, but only that few would dissent from it. The second nor-mative claim, 'Some people deserve to be punished', is more diffi-cult, and I know of no noncontroversial moral premise from which itfollows.

What would follow if every claim that someone is morally account-able and deserves punishment is false, notwithstanding that holdingpeople accountable in this sense is essential to the life of a moralcommunity? I am not supposing that all retributive judgments aremistakes in the sense that everyone judged is mad or innocent, butthat on philosophical (e.g., utilitarian or deterministic) grounds noone ever is morally accountable. It would seem to follow that wecould not justify what is essential for a moral community, and there-fore could not justify having moral communities as I have definedthem. Following this out would require explaining moral communi-ties without moral accountability, or arguing that we ought not live inmoral communities, or that we should become extinct. Another pos-sibility is that what is essential to the life of a moral community isholding people morally accountable, whether or not they really aremorally accountable.

Where then do we stand? I have not argued for the claim, 'Peoplesometimes are morally accountable and deserve punishment', but Ihave given what appear to be utilitarian reasons for the claim,'We ought to hold people morally accountable and deserving of pun-ishment'.There is a level on which utility is, indeed must be, relevant to ourappraisal of any system of social organization. Moral community and


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AN EXPLANATION OF RETRIBUTION 477personal accountability must have utility, relative to other ways peo-ple might live, or else both biological and cultural evolution wouldhave favored those other ways. But this speaks to the belief in and notthe truth of retribution, if the latter even makes sense. It is equallycertain that utility cannot be the reason one accepts retributive pun-ishment, for then it would not be retributive punishment.If we say retribution has utility, we could mean that we have abetter society if people falsely believe members of their moral com-munity sometimes deserve to be punished. This is the "noble lie"view. It is, I believe, elitist in the bad sense; the very idea of philo-sophy seems absurd if philosophers must conclude that the bestworld is one in which the majority of people must believe what isfalse. Philosophy surely aims at the discovery of truth by everyonecapable of doing so. Moreover, the "noble lie" view presupposes thatretribution involves true or false moral propositions, and not just aset of cultural practices. If judgments of desert are not truths orfalsehoods, we are not, as social philosophers, telling people to be-lieve what we believe is false.Alternatively, one might argue that retribution has utility just be-cause people insist on it that much, and those deprived of seeingretribution done will suffer more than those who are punished. Bythis line of argument, anything people want badly enough on non-utilitarian grounds is justified on utilitarian grounds. It may be so,but, if it is so, it is not a way to defend retribution but a reductio ofutilitarianism. The practices of racism, sexism, and ruthless compe-tition, if desired so strongly that their deprivation creates more mis-ery than their exercise, have utility; but they are unjust and wrongnonetheless.

I do not think it is intelligible to accept my arguments for holdingpeople morally accountable, and at the same time suggest that alljudgments of moral accountability are false in the literal sense thatthey all ought to be rejected. Ruling out the "noble lie" view, ouroptions are (1) some retributive judgments are true, and proven soby arguments philosophers have not yet discovered; and (2) retribu-tive judgments are justifiable independently of the issue of truth orfalsity. I think the latter option is more plausible, for supposing allretributive judgments false and therefore to be rejected sounds un-intelligible, given the acceptability of my arguments for holding peo-ple morally accountable; and it does so prior to our knowing whetheror not we can demonstrate the truth of retributive judgments.The idea of retribution I am explaining and defending is not likethe old concept of retribution which played little or no role in events:when philosophers rejected retributive grounds for punishment,they usually just substituted utilitarian reasons for the same or very


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478 THE JOURNAL OF PHILOSOPHYsimilar practices. Can we abandon accountability and retribution as Ihave explained them, and substitute utilitarian reasons for the samepunishment policies and practices? Not in this case, if my argument iscorrect that holding people personally accountable, and not justpunishing them, is necessary for the existence of viable moral com-munities. But holding people personally accountable is preciselywhat we abandon when we abandon retribution. In the one case wejustify jailing robbers only to keep us safe, after we abandon the ideathat robbers deserve jail. In the other case we hold them accountablebecause of what they did in the past, and not because it will make ussafer in the future.

I would like to suggest that a retributive judgment is a move in thesocial practice of retributive punishment. I have argued that thesocial practice is essential for human social life as we know it. Hence,justifying retributive punishment is not like justifying the particularjudgment 'Josef Mengele deserved to be punished', it is like justify-ing funerals, marriage, or bear dances. And such things can be justi-fied. After the practice is justified, 'Josef Mengele ought to be pun-ished' then may be justified within the practice, in terms of moraland legal reasoning about crimes and excuses.This is not at all intended to be a contribution to the new fashionsin "moral realism." Retributive judgments are true or false in at bestan honorific sense; they are relative to practices, and social practicesare called good because social animals such as we require them forcooperative living. The whole theory comes together more smoothlyif some version of nondescriptivism is true. We do not have to worryabout the objection that retributive judgments are false if they areneither true nor false. As for the judgment that we should preservemoral communities, I have argued elsewhere9 that fundamentalmoral judgments are expressions of basic wants that have causes butnot reasons; and that these wants turn into moral beliefs in thepresence of criteria ("marks of the moral"), analogous to those Ihave here argued turn revenge into retribution.Holding people morally accountable and punishing and rewardingthem is best understood as social ritual such as bear dances or mar-riage. It makes no sense to say that marriages or bear dances arefalse, but does make sense to say we ought not to have them. On thisview, a mistaken retributive judgment is a defect in a different cate-gory from that where we give evidence that a social practice is notutile. It is more like doing the bear dance incorrectly.

ANDREW OLDENQUISTOhio State University9 Normative Behavior, ch. 3.

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