A Justification of Retributive Justice

The central argument for a retributivist position on punishment is that justice is itself a value, and a just response to wrongdoing can therefore be morally right even when it produces no further beneficial consequence.

The utilitarian asks, 'What good does punishment do?'

The retributivist replies, 'That is not the only morally relevant question. We must also ask what people deserve'.

The claim is that there are moral reasons for treating people in accordance with what they have done, and that those reasons cannot be reduced to the consequences produced by doing so.

Getting what you deserve

The most fundamental retributive intuition is one of desert. If one person deliberately and unjustifiably harms another, something morally significant has happened even if no further consequences follow. The offender has done wrong, and the victim has been wronged. There is therefore a reason for the offender to be held accountable which exists independently of whether punishing him will deter anyone else, rehabilitate him, incapacitate him or produce social benefits.

If a person deliberately murders an innocent victim and could subsequently be imprisoned without producing any deterrent effect, a utilitarian would have to justify the punishment by reference to some other consequence. The retributivist can say something simpler: 'the murderer deserves punishment because he has committed a grave wrong'.

There appears to be a distinction here between desert and utility. Suppose that punishing an innocent person would produce exactly the same beneficial consequences as punishing the guilty person. A strict utilitarian could regard the punishment of an innocent person as justified if the overall consequences were sufficiently beneficial. The retributivist's response is that it would still be wrong to punish the innocent person. The fact that doing so produces good consequences cannot transform an innocent person's punishment into something deserved.

This is one of the strongest arguments against a purely consequentialist conception of punishment. It is the a common intuition that justice places constraints upon what may be done to people even for the sake of desirable outcomes. We normally regard it as morally impermissible to punish an innocent person simply because doing so would benefit society. The reason seems to be that punishment is not merely an instrument for producing consequences, it is a response to the person who has actually committed the wrong.

This point can be illustrated by considering the idea of the scapegoat. Imagine a community suffering from unrest. The authorities discover that publicly punishing an unpopular but innocent person would restore social order. The punishment might deter violence, reassure the population and prevent further conflict. Nevertheless, most people would regard such punishment as profoundly unjust. Why? Because the person being punished does not deserve it. The moral defect does not disappear merely because the consequences happen to be beneficial. This suggests that desert is not simply a convenient mechanism for producing good consequences but an independent moral consideration.

The retributivist can therefore argue that justice is agent-neutral in one respect but agent-relative in another. We care about the consequences of punishment for society as a whole, but we also care about the relationship between a particular offender and the particular wrong that he has committed. The fact that someone has deliberately inflicted a serious wrong gives us a reason to respond to that person which we would not possess in relation to an innocent person. That reason arises from the offender's conduct itself.

Moral recognition

A second powerful argument concerns moral recognition. When a person deliberately violates another person's rights, failing to respond may amount to failing to take the wrong seriously. Punishment can express the judgement that the victim mattered, that the wrong was genuinely wrong, and that the offender is responsible for what he has done. The punishment therefore has a communicative and expressive dimension. It does not merely produce an external consequence; it makes a moral judgement about the relationship between offender, victim and community.

This is particularly important where the victim has suffered a serious violation. Suppose that a person deliberately tortures another human being. If the state responds by saying that punishment is unnecessary because the offender can be prevented from offending again without imposing a penalty, something appears to have been left out. The state has protected society, but it has not necessarily answered the wrong. The victim may reasonably feel that the seriousness of the offence has not been adequately recognised. Retributive punishment can be understood as society's formal condemnation of the offender's conduct and the declaration that it was not merely unfortunate nor socially inconvenient but morally culpable.

Equal moral standing

This connects retribution with the idea of equal moral standing. A person who deliberately violates another's rights has, in effect, treated the victim as someone whose interests may legitimately be sacrificed to his own purposes. Punishment can symbolically reject that proposition. It says that the offender's freedom and interests do not give him a licence to disregard the equal freedom and interests of others. The punishment therefore restores, at least symbolically, the moral equality that the offence violated.

Respect for the offender

There is also an important argument from respect for the offender himself. This may initially seem paradoxical. How can punishing someone show respect for him? The answer is that a person can be treated as a responsible moral agent only if he is held accountable for his choices. If we regard offenders merely as objects to be manipulated in order to produce desirable social outcomes, we risk treating them as instruments rather than as autonomous agents. Retribution, properly understood, says: you chose to do this; you are responsible for that choice; and you must answer for it. Punishment is therefore not merely something done to a person but a moral response to the person as an accountable agent.

Proportionality

This is one reason why proportionality is so central to retributive justice. If punishment were purely utilitarian, there would be no necessary reason why the punishment should correspond to the seriousness of the offence. A relatively minor offender might, in principle, be punished extremely severely if doing so produced sufficiently great benefits. Conversely, a serious offender might receive little or no punishment if punishment happened to produce few useful consequences. Retributivism rejects this. The punishment should correspond, within reasonable limits, to the seriousness of the wrongdoing and the offender's culpability. The point is not to maximise suffering but to impose an appropriate response to the wrong.

Arguments against a utilitarian view of punishment

This gives us a strong argument against the utilitarian position: some consequences are morally unacceptable regardless of their usefulness.

If the utilitarian says that punishment is justified only insofar as it produces beneficial consequences, the retributivist can ask whether there are things we must not do even when doing them would produce greater aggregate welfare. If the answer is yes, then the utilitarian principle is incomplete. If the answer is no, the utilitarian appears committed to the possibility that sufficiently beneficial consequences could justify punishing the innocent, deliberately framing someone, imposing grossly disproportionate punishment or perhaps even torturing someone, provided the consequences were sufficiently advantageous. Most people's moral intuitions reject such conclusions.

A utilitarian might respond that a sophisticated utilitarianism can incorporate rules against such practices because societies in which innocent people can be punished tend to be less secure, less trusting and less prosperous. Punishing innocents would therefore normally have bad consequences. This is a serious reply. It shows that the retributivist cannot simply point out that utilitarianism sometimes produces conclusions that seem objectionable and declare the argument finished. The deeper disagreement concerns whether the wrongness of punishing an innocent person depends simply upon its consequences.

The retributivist's answer should be that giving a simplified hypothetical case matters precisely because it removes the consequences. If we stipulate that punishing the innocent person really would produce exactly the same beneficial consequences and that no indirect harms would occur, the utilitarian has no non-consequentialist reason to object. Yet the retributivist still has such a reason: the innocent person does not deserve punishment. This demonstrates that desert is logically independent of utility. It is not merely a useful social rule that happens to produce good consequences.

Just punishment has intrinsic moral value

Utilitarianism evaluates states of affairs by their consequences, whereas retributivism can take seriously the particular moral relationship between offender and victim. Imagine two worlds identical in every respect except that, in one, a murderer is punished and, in the other, he is not. Suppose further that nobody else learns about the punishment, the punishment has no deterrent effect, the offender cannot reoffend and the victim receives no additional benefit. A utilitarian may conclude that punishment has no justification because it produces no useful consequence. The retributivist can nevertheless say that the first world is morally preferable because the wrongdoer has been held accountable in accordance with what he deserves.

This does not mean that the retributivist must believe that suffering is intrinsically good. That would be a much more difficult position to defend. The better claim is that just punishment has intrinsic moral value because it establishes the appropriate normative relationship between wrongdoing and response. The value lies not simply in making someone suffer but in giving a wrongdoer the punishment that he deserves. Indeed, gratuitous suffering remains objectionable even when inflicted upon a guilty person.

Is retribution is merely revenge dressed up in philosophical language?

Retribution does not mean 'the more suffering, the better'. It means that punishment can be justified by the offender's culpable wrongdoing and must be proportionate to it.

This distinction is crucial because it allows you to avoid the objection that retribution is merely revenge dressed up in philosophical language. Revenge says:

'You hurt someone and I am angry, so you should suffer.'

Retributive justice says:

'You are a responsible moral agent who has culpably committed a wrong, and justice requires an appropriate response proportionate to that wrong.'

Revenge is personal, emotional and potentially unlimited. Retribution is intended to be impartial, proportionate and constrained by principles. The two share an intuitive foundation---the idea that wrongdoing deserves a response---but they need not share the same moral structure.

Restoring moral balance

A serious wrong creates a moral imbalance: the offender has unjustly imposed a burden upon another person while asserting, through his conduct, a liberty that he has denied to the victim. Retributive punishment does not literally undo the harm, nor does it make the victim whole. What it does is recognise that the offender's conduct has changed his moral position. He has incurred an obligation to answer for what he has done. Punishment is one way in which that obligation is discharged.

The place of mercy, pardoning, rehabilitation, and excusing

But retribution does not require us to punish every wrongdoer whenever punishment is technically deserved. Questions of mercy, practical necessity and the interests of the victim can remain relevant. Nor does it necessarily require the maximum deserved punishment. A person can deserve punishment without deserving the harshest punishment available. The principle of proportionality places an upper boundary upon punishment, while considerations of rehabilitation and social welfare may influence the choice of an appropriate sentence within that boundary.

The most defensible retributive position is therefore not that consequences do not matter. They plainly do. Deterrence, rehabilitation, incapacitation and the protection of society are all legitimate considerations. The stronger claim is that they do not exhaust the moral justification of punishment.

The weakness of the utilitarian position

The weakness of the utilitarian position can be reduced to a fundamental question about morality. Is the moral value of an action entirely determined by what happens as a result of it, or are there also truths about what people deserve that impose independent moral requirements upon us? If the latter is true, then retributive punishment has a foundation that utilitarianism cannot capture. Punishing the guilty is not merely a technique for producing social benefits. It can be an intrinsically appropriate response to wrongdoing, just as telling the truth, keeping a promise or giving someone what they are owed can be right even when doing so produces no additional benefit.

Conclusion

Justice requires moral agents to be held responsible for their culpable choices and serious wrongdoing creates a legitimate claim to a proportionate response, and fulfilling that claim has value independently of its further consequences**. **