Philosophy and law: foundational concepts and applications

Philosophy and Law

Just Justification:

An Examination of the Retributive Theory of Justice

There have been many theories of punishment and its morality. One such theory is the Retributive Theory of Justice. It holds that punishment is right when deserved and that the offender has a right to be punished. A defining feature of this theory is that punishment has little to do with the victim and almost everything to do with the "rights" of the criminal. Justice, therefore, is honoring the rights of the criminal. However, several Philosophers give different perspectives of just punishment under the Retributive Theory.

Immanuel Kant argues that crime is obviously bad, and punishment is good (albeit an ill because of the pain that it inflicts on a person). However, for punishment to be just, a person must "first be found guilty and punishable" (104) and the punishment be governed by the principle of equality. The principle of equality is more commonly stated as "an eye for an eye." Punishment that a person receives, then, is equal (and retaliatory) to what he has done. Punishment, though, is not done for the victim; the criminal is punished because of what he has done to himself! If he has stolen, for example, then he has robbed himself of the ability to keep possessions. It is only just that the criminal receives the punishment that will balance the scale of justice that he tipped by committing the crime. G.W.F. Hegel takes it one step further and argues that a criminal has the right to be punished because the punishment honors his rights as a rational being. Hegel contends that if a criminal knowing breaks the law, then he has said to society that understands and fully expects consequences.

Indeed, as Herbert Morris argues, the criminal not only knowing acts (commits the crime) and understands the consequences, but also unburdens himself of the social constraints (i.e., the expectation of self-restraint) placed upon him. Morris suggests that as part of a society, individuals agree to the principle of noninterference. That is, they agree not to interfere with the lives of others with the assumption that they will not be interfered with themselves. This agreement creates a burden of self-restraint. When a person knowingly relieves himself of that burden, he has caused an "unfair distribution of benefits and burdens" (117). Punishment must be enacted to restore equilibrium. However, only if equilibrium were disturbed would punishment be necessary or just. That is, only if the offender knew the rules or was actually at fault would he be guilty. If this is not the case, the offender would not have relieved himself of the burden of self-restraint and, thus, not caused an equilibrium imbalance. Otherwise, according to Morris, "in choosing to do an act violative of the rules an individual has chose to be punished" (118). It is, therefore, his right to be punished and discharge his debt to society.

H.J. McCloskey gives a different account, however. He makes his argument for the Retributive Theory of Justice in opposition to the utilitarian notion of justice, but maintains that the criminal has a right to punishment. He says that the utilitarian approach to justice takes crime to be bad and punishment a necessary ill to stop the bad (crime). In utilitarianism, punishment does not even require a person to be guilty of any crime so long as the punishment deters other crimes to ensure the greatest good in society (thereby sacrificing one for the good of many). McCloskey says that this is not just and that the person being punished must be deserving of that punishment. He says "evils should be distributed according to desert and…the vicious deserve to suffer" (120). His version of the retributive theory, therefore, says that individuals who commit crimes deserve (have a right) to be punished because they deserve to suffer for committing the crime. Further, the criminal made myself unequal by committing the crime, so he deserves to be treated unequally (i.e., unlike other members of society who are, e.g., receiving various freedoms).