Response Retributivism: Defending the Duty to Punish

Abstract

Punishment presents a problem. While we generally believe that intentionally harming others is impermissible, it is widely presumed that this problem can be overcome in the case of punishment. Nonetheless, many worry about the justification of excessive punishment, especially given the state of criminal justice today. This paper offers a moderate retributive justification of punishment that avoids many of the classic problems associated with retributive theories, while retaining their intuitively compelling answer to the problem of punishment. The response-retributive theory proposed restructures traditional retributive theories: rather than relying on offender-centric reasons for punishment, response retributivism offers a punisher-centric justification, which takes the role of the punisher as well as the relations between the wrongdoer and punisher as central to the justification of punishment. The paper proposes that punishment is justified in terms of the ethics of appropriate response to wrongdoing and the duty that those in relevant relations with the wrongdoer have to dissociate from the devaluation inherent in the wrongdoer’s action. It demonstrates that on such account, while the harm and suffering involved in punishment is rightly imposed, it is not “good.” This open a space to argue for the relevance of a second duty in the context of punishment: the duty to mitigate our retributive practices. The paper demonstrates that the proposed theory offers a unitary theory of punishment, which has the resources to justify not only criminal punishment, but punishment as it is imposed across all relations: private, institutional and public. It thus further provides a springboard for grounding claims regarding requisite punishment in non-state institutions (e.g. academic institutions and sports clubs) and private contexts as well.