Retributive Emotions Research Articles

Retributive Emotions and Punishment

This article is a reflection on the role of emotions in legal decisions related to punishment determination. Drawing on a literature that attributes an evaluative-cognitive function to emotions, I will argue that emotions are cues about what we socially value, which is important for substantive and design-level decision making in the criminal justice system. In this sense, I will claim that emotions point to value judgements that are worth bearing in mind, although, to do so, it is necessary to clarify: a) on the one hand, which of them are appropriate and can be a reliable guide to punishment, its incidence and severity; and b) on the other hand, which of them are inappropriate, even if they are, in fact, operating as guides to punitive deliberation. Punishments play a social role that is not only linked to the idea of prevention, but also to reactive attitudes and emotions to the harm that is caused by criminal behavior. This paper is an effort to highlight the potential of the study of emotions in areas of law where they have been relegated and even presented as obstacles in the delivery of justice.

Philosophy and Science Dialogue: Free Will

In this dialogue Derk Pereboom and Marcel Brass discuss the free will problem from the perspective of philosophy and cognitive neuroscience. First, they give their opinion on how the two disciplines contribute to the free will problem. While Pereboom is optimistic regarding the contribution of science, Brass is more pessimistic and questions the usefulness of an empirical approach to the question whether free will exists or not. Then they outline their position on the free will problem. The idea of a transcendental agent is discussed in more detail. Furthermore, it is discussed whether free will scepticism is a politically, socially, psychologically viable position. Pereboom argues that promoting the idea of free will scepticism can have a positive impact on retributive emotions and the political practice regarding retributive punishment. Brass argues that retributive emotions are deeply rooted in evolution and therefore difficult to change via high-level beliefs about free will. Finally, the future of the free will debate is discussed. Both agree that the dialogue between philosophy and psychology should be intensified. Philosophy can benefit from taking empirical research more seriously. Psychology and neuroscience can benefit from philosophy by appreciating the sophistication and conceptual clarity of the philosophical debate. Both have to find a common language and define common problems that can be tackled from both perspectives.

Forgiveness or Fairness?

Several philosophers who argue that forgiveness is an important virtue also wish to maintain the moral value of retributive emotions that forgiveness is meant to overcome. As such, these accounts explicate forgiveness as an Aristotelian mean between too much resentment and too little resentment. I argue that such an account ends up making forgiveness superfluous: it turns out that the forgiving person is not praised for a greater willingness to let go of her resentment, but rather for her fairness or good judgment. I conclude by arguing that the virtue of fair-mindedness is more compatible with maintaining the value of the retributive emotions than the virtue of forgiveness.

Giving Responsibility a Guilt-Trip: Virtue, Tragedy, and Privilege

In this paper, I argue for the ethical importance of the retributive emotion of ‗tragic-guilt,‘ namely, the feeling of self-recrimination for doing harm even if it could not be prevented. Drawing on empirical evidence concerning the phenomenology of such guilt, as well as thought-experiments concerning moral responsibility for inherited privilege, I distinguish tragic-guilt from the closelyrelated retributive emotions of regret, remorse, shame, and non-tragic guilt. I attempt to understand the emotion of tragic-guilt in light of an ethics of virtue, and I argue that sensitivity to tragic-guilt has significant theoretical, ethical, and motivational benefits. The reality of such tragic-responsibility reveals an uncomfortable, but undeniable messiness in the moral domain. The virtuous person is characterized by a deep emotional responsiveness to this messiness.  Earlier versions of this paper were presented at Ghent University and to the Southern Society for Philosophy and Psychology. The author is grateful for the comments and suggestions of two anonymous referees and for the editorial and organizational expertise of Tom Claes, Tim De Mey, and Marijke de Pous.

War as Punishment

For more than a thousand years, just war theorists accepted that wars could be launched to punish or avenge wrongdoing, the war itself being an instrument of retribution. Today, this punishment theory of just cause has completely disappeared from international law, which recognizes only individual and collective self-defense as legitimate cause for war. But retributive emotions are as strong today as ever, and the punishment theory is still alive and well in the moral imaginations of modern societies, even if the diplomats and lawyers scrub it from their official pronouncements about the wars their nations fight. Furthermore, intuitions about enemy collective guilt underlie current debates over who counts as a direct participant in hostilities, how voluntary human shields should be treated, and how much risk soldiers must take to minimize casualties among enemy civilians. This paper addresses two principal questions: how we got from there to here - that is, from just war theories that embraced the punishment theory to its current erasure - and whether the punishment theory may nevertheless be right. In answer to the first question, the paper traces the punishment theory from its initial formulation in writings of St. Augustine (whose views it examines in detail) through its medieval and early modern defenses, to its rejection by Kant and Vattel. Defenders of the theory, notably Cajetan, viewed punitive war through the lens of criminal justice by which states punish miscreants; they argued that natural reason cannot accept notorious unpunished wrongdoing. Those who rejected the theory did so because it requires one state to judge the conduct of another. This objection raises two distinct issues: violation of sovereign equality, and biased judgment. The paper rejects the sovereignty objection, but elaborates the biased judgment objection by examining the distinction between retribution and revenge. These arguments lead to five objections to the punishment theory: (1) It places punishment in the hands of a biased judge, namely the aggrieved party, which (2) makes it more likely to be vengeance than retributive justice. (3) Vengeance does not follow the fundamental condition of just retribution, namely proportionality between punishment and offense. (4) Furthermore, punishment through warmaking is collective punishment that punishes the wrong people, and (5) it employs the wrong methods. Ultimately, Cajetan's concerns about unpunished wrongdoing argue for international criminal law, not punitive warfare.

The Retributive Emotions: Passions and Pains of Punishment

It is not usually morally permissible to desire the suffering of another person, or to act so as to satisfy this desire; that is, to act with the aim of bringing about suffering. If the retributive emotions, and the retributive responses of which they are a part, are morally permitted or even required, we will need to see what is distinctive about them. One line of argument in this paper is for the conclusion that a retributive desire for the suffering of the wrong-doer, and the aim to bring this about, can (contra recent arguments from Hanna 2008) be morally justified. It has been suggested that by reflecting on the role of the retributive emotions in interpersonal relationships, and the alleged legitimacy of the aim for the suffering of the wrong-doer within them, support can be garnered for retributive practices of punishment by the state (Duff 1986 and 2001, Bennett 2002 and 2003). The conclusion of the second line of argument in the paper is that whilst the retributive responses can permissibly aim at suffering, the way in which this is so in interpersonal relationships cannot provide support for retributive state punishment.

Forgiveness as the Working Through of Splitting

This article presents a psychoanalytic formulation of forgiveness seen as the resolution of splitting underlying manifest and vehement retributive states of mind such as resentment, vengefulness, grudge, envy, bitterness, blame, and spite. Clinical examination suggests that these states of mind that are indicative of the presence of splitting are not always in ascendancy. They wax and wane in consciousness, depending on whether or not a shame-filled state of mind is present. Their appearance in consciousness is due to the instigatory role of shame before onlookers and the powerful role of hidden shame dynamics that do not always appear as overt shame. Examples illustrate a clinical impasse posed by the workings of intense splitting, the transformation of a shame experience into a dynamic of guilt in the firing of a very successful football coach after a disappointing defeat, and the working through of splitting in a patient pari passu with his increased bearability of shame. Working through of the splitting underlying the retributive emotions involves the increased bearability of shame, often with the help of an identification with the analyst. Vistas for future investigation include the role of the working through of resentment of the analyst in the analytic process and the relation of that resentment to instigating shame dynamics.

The two faces of revenge: moral responsibility and the culture of honor

Retributive emotions and behavior are thought to be adaptive for their role in improving social coordination. However, since retaliation is generally not in the short-term interests of the individual, rational self-interest erodes the motivational link between retributive emotions and the accompanying adaptive behavior. I argue that two different sets of norms have emerged to reinforce this link: (1) norms about honor and (2) norms about moral responsibility and desert. I observe that the primary difference between these types of retribution motivators lies in where the normative focus is placed after an offense. In the first form of retribution, the normative focus is on the offended party. In the second, it is on the offender. Next, I show how each class of norms is well tailored to the particular features of the environment in which these forms of retributive behavior emerge. Finally, I consider some philosophical implications of these observations. I suggest that my account, if correct, would pose tough challenges for contemporary philosophical theories of moral responsibility and punishment.

Retributive Reactions to Suspected Offenders: The Importance of Social Categorizations and Guilt Probability

In the current research, the author investigates the influence of social categorizations on retributive emotions (e.g., anger) and punishment intentions when people evaluate suspected offenders as independent observers. It is argued that information that guilt is certain or uncertain (i.e., guilt probability) has different consequences for retributive reactions to ingroup and outgroup suspects. In correspondence with predictions, results of four experiments showed that people reacted more negatively to ingroup than outgroup suspects when guilt was certain but that people reacted more negatively to outgroup than ingroup suspects when guilt was uncertain. It is concluded that guilt probability moderates the influence of social categorizations on people's retributive reactions to suspected offenders.

Forgiveness, mercy, and the retributive emotions

(1988). Forgiveness, mercy, and the retributive emotions. Criminal Justice Ethics: Vol. 7, No. 2, pp. 3-15.

Morality and the retributive emotions

(1982). Morality and the retributive emotions. Criminal Justice Ethics: Vol. 1, No. 1, pp. 3-10.

The Structure of Responsibility

Previous articleNext article No AccessThe Structure of ResponsibilityJohn A. ClarkJohn A. Clark Search for more articles by this author PDFPDF PLUS Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by Ethics Volume 49, Number 4Jul., 1939 Article DOIhttps://doi.org/10.1086/290107 Views: 1Total views on this site Citations: 2Citations are reported from Crossref PDF download Crossref reports the following articles citing this article:Janina Loh Strukturen und Relata der Verantwortung, (Mar 2017): 35–56.https://doi.org/10.1007/978-3-658-06110-4_2Janina Sombetzki Strukturen und Relata des Verantwortung, (Jun 2016): 1–22.https://doi.org/10.1007/978-3-658-06175-3_2-1

Morality and the Retributive Emotions

Just as the pleasant experience differs from the non-pleasant or unpleasant, and (according to many at least) the aesthetic from the non-aesthetic, internally or qualitatively, and not merely in degree, or externally or relationally, so, it is natural to expect, a moment of moral living differs from a moral or immoral moment. Indeed, from many quarters, and most emphatically from the Stoic and Christian, we have been wont to hear that if we but leave our sinful or indifferent lives and put on righteousness or goodness, we shall become new men or men reborn, even creatures of a different species. But according to many (perhaps most) analyses of morality these promises of transfiguration or translation are nonsensical lies: for the moral experience, as exhibited in these analyses, differs from the non-moral or immoral only in respect of external relations, or at the most in degree. Whether the truth resides in the promises or in the analyses is, obviously, a question of no mean import. It is also a vast one, while the time and space that can be given up to an article are brief; hence the following will be barely more than a raising of the question, or a provocation, by means of rough statements, some dogmatic, others hypothetical.