Reciprocity as a justification for retributivism

Abstract

Retributivism is regarded by many as an attractive theory of punishment.(1) Its primary assumption is that persons are morally responsible agents, and it demands that the social practices of punishment acknowledge that agency. But others have criticized retributivism as being barbaric, claiming that the theory is nothing more than a rationalization for revenge that fails to offer a compelling non-consequentialist justification for the infliction of harm. Much of the contemporary philosophical literature on retributivism has attempted to meet this criticism.(2) One common move has been to recast retributivism within the social contractarian tradition. The argument is that the justification for retributive punishment flows naturally from social contractarian political theories. Thus, not only is it reasonable to claim that wrongdoers merit punishment independent of any consequentialist concerns, but that fairness requires retributive punishment. While allying retributivism with social contractarianism provides retributivism with a nonconsequentialist justification for punishment (one fuller and less problematic than the conception of desert that worries the critics of retributivism), I will argue that far from strengthening the justification of retributivism, social contractarianism weakens it. For this version of the theory invites the Marxist charge that our society is ordered by profoundly unfair political and social institutions, and that to justify punishing the criminals disadvantaged by such institutions with the claim that fairness requires their punishment approaches a cruel joke. Some have defended the contractarian-based theory of retributivism against the Marxist criticism by claiming that it does not require the punishment of such individuals precisely because social relations are unfair. I will conclude in this paper that although such a move is appealing, it is untenable. And if such a move is not open to the retributivist, she is now in the uncomfortable position of either turning a blind eye to the injustices by which many criminals are victimized or abandoning her retributivist intuitions (the very intuitions that drove her to social contractarianism to bolster her theory of retributivism in the first place). I will conclude that attempts to bolster retributivism by appeal to social contractarianism should be abandoned and retributivists ought instead to seek to develop their theory of punishment within an alternative type of political theory. I The Basic Assumptions of Retributivism There is no definitive version of retributivism. Theories differ in how they justify punishment and in how they explain which acts can be appropriate forms of punishment. They even disagree about the purpose of the practice of punishment. Despite these great differences, there are some very basic similarities that underlie the various theories, all of which are evident in what Hart refers to as the crude of retributivism.(3) This model of retributivism makes three basic claims. The Principle of Willful Wrongdoing (WW) The first claim is that the justification for punishing the wrongdoer rests solely on the blameworthiness of the offender and the wrongness of the offender's will. Thus a person may be punished if, and only if, he has willfully done something wrong.(4) Unintentional harms are not willful wrongs, and, thus, animals, very young children, and the mentally incapacitated cannot commit crimes though they can, of course, present a danger to the society. Measures taken to prevent such individuals from harming others (or measures taken to ensure they are no longer threats) are not, properly speaking, acts of punishment. The Proportionality Principle (PP) The second claim is that the appropriateness of the form and degree of punishment comes directly out of the criminal will: the criminal, in willing the crime, has willed her own punishment. Thus the punishment must in some way match, or be the equivalent of, the wrongness of the criminal act. …