Abstract
ABSTRACT In this article I explore whether liberal retributive justice should be conceived of either individualistically or holistically. I critically examine the individualistic account of retributive justice and suggest that the question of retribution – i.e., whether and when punishment of an individual is compatible with just treatment of that individual – must be answered holistically. By resorting to the ideal of sensitive reasons, a model of legitimacy at the basis of our best normative models of democracy, the article argues that in modern liberal democracies, punishment of an offender A for f is compatible with just treatment of A only if punishment of an individual for f can be legitimate in A's and A's fellow citizens' eyes. Only once retributive justice is understood in this holistic fashion the imposition of punishment can be made compatible with just treatment of individuals.
Highlights
A way to enquire into the institution of the criminal law is to look at the justification of punishment
The criminal law is not made up of discrete monads calling for philosophical analysis, but of interrelated practices and principles, the analysis of which extends beyond the criminal law to include broader questions in moral and political philosophy
The argument I advance supports the idea that criminal law is an institution whose practices are embedded within the sphere of politics and that any attempt to justify these practices cannot overlook the political nature of this institution
Summary
In interpreting John Rawls’ account of moral desert, Samuel Scheffler has developed the argument that the asymmetry of desert – the claim that desert plays asymmetrical roles in retributive and distributive justice – results from the different types of considerations at work in these two spheres of justice. What matters in retributive justice is independent of institutions and the way they allocate burdens – or so Rawls argues: “This is because the purpose of the criminal law is to uphold basic natural duties, those which forbid us to injure other persons in their life and limb, or to deprive them of their liberty and property, and punishments are to serve this end” The individualistic retributivist holds that social considerations do not play such a central role in determining the retributive burdens an individual is to endure; instead, these burdens are defined by reference to pre-institutional, non-holistic, and non-comparative considerations. This is the claim held by the individualistic retributivist that I test
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