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Justifying Retributivism

  • Michael S. Moore (a1)

I shall address two concerns in this paper: first, what retributivism is, and second, how one justifies retributivism as the only proper theory of punishment. Since this paper is necessarily short, treatment of these topics is likewise abbreviated, although hopefully not so abbreviated but that it whets the appetite for those who wish to pursue them in greater depth.

Retributivism is the view that we ought to punish offenders because and only because they deserve to be punished. Punishment is justified, for a retributivist, solely by the fact that those receiving it deserve it. Punishment of deserving offenders may produce beneficial consequences other than giving offenders their just deserts. Punishment may deter future crime, incapacitate dangerous persons, educate citizens in the behavior required for a civilized society, reinforce social cohesion, prevent vigilante behavior, make victims of crime feel better, or satisfy the vengeful desires of citizens who are not themselves crime victims.

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1 My own views on these topics have been spelled out in greater detail in: “Closet Retributivism” (Spring-Summer 1982) USC Cites 9–16; Law and Psychiatry: Rethinking the Relationship (Cambridge U. P., 1984) 233–243; “The Moral Worth of Retribution”, in Shoeman F., ed., Character, Responsibility, and the Emotions (Cambridge U. P., 1987) 179219, reprinted in Feinberg Joel and Gross Hyman, eds., Philosophy of Law (Wadsworth, 4th ed., 1991) 685707; Placing Blame: A Theory of the Criminal Law (Oxford U. P., forthcoming), chaps. 2 and 3.

2 The late John Mackie called this view “negative retributivism”: Mackie J. L., “Morality and the Retributive Emotions”, (Winter/Spring, 1982) Criminal Justice Ethics 310; Mackie , “Retributivism: A Test Case for Ethical Objectivity”, in Feinberg Joel and Gross Hyman, eds., Philosophy of Law (Wadsworth, 4th ed., 1991) 677684. Note that the negative retributivist, if he is truly a retributi vist at all, must also be a positive retributivist. For the negative retributivist asserts that the justification for not punishing those who do not deserve it lies in the fact that there is no morally acceptable reason to punish in the absence of desert; this implicit appeal to the deserving of retributive justice is distinct from justifying the non-punishment of the innocent on grounds of fairness, liberty, or utility. (On the latter point, see Moore , Act and Crime (Clarendon Law Series, Oxford U. P., 1993) chap. 3.

3 See Moore, “The Moral Worth of Retribution”, supra n. 1, at 182. David Dolinko has come to label this a “bold” retributivism, to be contrasted with a “weak” retributivism according to which it is only permissible to punish those who deserve it. See Dolinko , “Some Thoughts About Retributivism”, (1991) 101 Ethics 537559, at 542. The late John Mackie called this pair “positive” versus “permissive” retributivism, respectively: Mackie, “Retributivism: A Test Case for Ethical Objectivity”, supra n. 2, at 678; Mackie, “Morality and the Retributive Emotions”, supra n. 2, at 4.

4 Most notably, Hart H. L. A., Punishment and Responsibility (Oxford U. P., 1968), and Rawls John, “Two Concepts of Rules”, (1966) 64 Philosophical Review 332.

5 This Rawls/Hart distinction has been carried into more recent discussions by Raz Joseph. See his Practical Reason and Norms (Oxford U. P., 1976). I argue against Raz's version of practice rules in Moore , “Law, Authority, and Razian Reasons”, (1989) 62 S. Cal. L. R. 827896, and Moore , “Three Concepts of Rules”, (1991) 14 Harv. J. L. and Public Policy 771795.

6 This distinction is explored in much greater detail in Moore , “Torture and the Balance of Evils”, (1989) 23 Is. L. R. 280344.

7 Kant , The Metaphysical Elements of Justice (J. Ladd, trans., 1966) 102.

8 See, e.g., Dolinko , “Three Mistakes of Retributivism”, (1992) 39 UCLA L. R. 1623–57.

9 See Dolinko, ibid.; Schedler , “Can Retributvists Support Legal Punishment?” (1980) 63 Monist 185198. Compare Alexander Larry, “Retributivism and the Inadvertent Punishment of the Innocent” (1983) 2 Law and Philosophy 233246.

10 I owe this point to Dudley Knowles.

11 The retributiviet might adopt a principle of symmetry here — the guilty going unpunished is exactly the same magnitude of evil as the innocent being punished — and design his institutions accordingly. Or the retributivist might share the common view (that the second is a greater evil than the first) and design punishment institutions so that “ten guilty persons go unpunished in order that one innocent not be punished”. See Reiman Jeffrey and Haag Ernest van den, “On the Common Saying that it is Better that Ten Guilty Persons Escape than that One Innocent Suffer: Pro and Con” (1990) 7 Social Philosophy and Policy 226248.

12 I explore both the doctrine of double effect, and the analogous doctrine distinguishing knowing visitation of harms on specified people versus risking harm to some unidentified part of a class of persons, in Moore, supra n. 6. As I there show in detail, any deontological view of morality must incorporate some such limits as these in order to specify the domain over which morality's absolute prohibitions range.

13 A “threshold” deontologist refuses to violate a categorical norm of morality until not doing so produces sufficient bad consequences as to pass some threshold — then, he will override such categorical norms. See Moore, supra n. 6.

14 For this older form of argument see, e.g., Quinton A. M., “On Punishment” (1954) 14 Analysis 1933–42. For a related argument, seeking to tease retributivism out of our concept of law, see Fingarette Herbert, “Punishment and Suffering” (1977) 50 Proceedings of the American Philosophical Association 499525.

15 Ronald Dworkin regards such claims as interpretive, although I prefer the older if less fashionable label, “functional”. For the difference, see Moore , “Law as a Functional Kind”, in George Robert, ed., Natural Law Theories (Oxford U. P., 1992) 201203, 220–221. For the functionalist claim that Anglo-American criminal law is a functional kind whose implicit goal is the seeking of retributive justice, see Moore , “A Theory of Criminal Law Theories”, (1990) 9 T. A. U. Studies in Law 115185.

16 See Moore , “Moral Reality”, [1982] Wise. L. K. 10611166; Moore , “Moral Reality Revisited” (1992) 90 Mich. L. R. 24242533.

17 Mill John Stuart, Utilitarianism (Liberal Arte Prees, 1957) 44.

18 Rawls John, A Theory of Justice (Harvard U. P., 1971).

19 Moore, “The Moral Worth of Retribution”, supra n. 1.

20 For discussion and citations, see Moore, “The Moral Worth of Retribution”, ibid.

21 Hampton Jean and Murphy Jeffrie, Forgiveness and Mercy (Cambridge U. P., 1988); Pillsbury Samuel, “Emotional Justice: Moralizing the Passiona of Criminal Punishment” (1989) 74 Cornell L. R. 655710.

22 David Dolinko advances this form of the question-begging objection against my coherentist methodology with an example: “Consider, as an analogy, a similar coherence justification for the view, say, that women are inferior to men, offered circa 1800 by one man to another. Someone has raised the question of whether it is really justifiable to treat women as inferior and is met with the response that, ‘Well, of course, we all have the intuition that in this situation we should discriminate against women, and likewise in this and this; now, the best way of accounting for these particular judgments is to suppose women to be morally and intellectually inferior to men’. Wouldn't one feel that the crucial question is being begged?” Dolinko, supra n. 3, at 557–58. Notice that Dolinko trivializes the inference in his analogy in the manner attacked in the text: the particular judgments are not that this person should be treated in some inferior way in this context; rather, the particular judgments already include most of the terms of the principle to be abstracted from them — that the inferior treatment is discrimination; that the only feature to be mentioned is that the persons discriminated against are women.

By his choice of analogy, Dolinko also of course hopes to suggest that a coherence mode of justification is no guarantee against moral error, for we are only cohering our own beliefs and attitudes. One can easily concede this possibility of error without for a moment conceding Dolinko's hoped for conclusion (that this form of argument is question-begging). Our particular judgments of visual perception can of course also be in error on occasion, but that does not eviscerate the power of those judgments to be good (if not conclusive) reasons for believing the principles abstractable from them.

23 For an example of this form of the question-begging worry, see Mackie, “Retributiviem: ATest Case for Ethical Objectivity”, supra n. 2, at 679 (“‘Desert’ is not such a further explanation, but is just the general, as yet unexplained, notion of … retributivism itself”.)

24 These last examples are considered in Moore, Law and Psychiatry, supra n. 1, at chap. 5.

25 On wrongdoing, see Moore, Act and Crime, supra n. 2, chap. 7.

26 In his commentary upon this paper at Stirling my commentator, Dudley Knowles, appeared to take this view before eventually abandoning it See Knowles, “Unjustified Retribution”, in this issue, p. 50.

27 For a more complete taxonomy, see Cottingham J.G., “Varieties of Retribution” (1979) 29 Philosophical Q. 238–46.

28 Dolinko, supra n. 3, at 555.

29 An exception may be Herbert Morris' well-known principle of fairness, which may well survive the by-now voluminous criticisms made of it. See Morris , “Persons and Punishment” (1968) 52 The Monist 475501.

30 This is to take up the suggestion I offered in “The Moral Worth of Retribution”, supra n. 1, at 182, 186.

31 I am doubtlessly regimenting the usage of “desert” here a bit so as to give it this descriptive content. Some of the ordinary usages of “desert” are such that it can mean no more than “intrinsically right” or “intrinsically ought to be done”. Such broad, purely evaluative usages of “desert” account for the sense of Mackie and others that “desert” is an empty concept. See n. 23, supra.

32 For an unpacking of the notions of wrongdoing and culpability in the criminal law context, see Moore, “A Theory of Criminal Law Theories”, supra n. 16. For a comparison of some of the conditions of culpability in contract and criminal law, see Hart H. L. A., “Legal Responsibility and Excuses”, in his Punishment and Responsibility (Oxford, 1968).

33 Dolinko, supra n. 3, at 543–44, 558; Dolinko, supra n. 8, at 1627–30.

34 Dolinko, supra n. 8, at 1629.

36 Ibid., at 1628 (quoting Moore, “The Moral Worth of Retributivism”, supra n. 1, at 180).

37 Ibid., at 1630.

38 Dolinko, supra n. 3, at 544 (quoting Feinberg Joel, “Justice and Personal Desert”, in Doing and Deserving (Princeton, 1970), at 60).

39 Ibid., at 545.

40 Feinberg Joel and Grose Hyman, Phllosophy of Law (Wadsworth, 4th ed., 1991) 630. For similar queries about my thought experiments, see Kadish Sanford and Schulhofer Stephen, Cases and Materials on Criminal Law (Little, Brown, 5th ed., 1989) 145.

41 For the classical argument concluding that our moral beliefs cannot be about our own moral beliefs, see Moore G. E., Ethics (1912), and for an update, M.S. Moore, “Moral Reality”, supra n. 16, at 1075–1079.

42 This concession is made by the late Mackie John in his Ethics: Inventing Right and Wrong (Penguin, 1977), chap. 1.

43 Michael Moore, “Moral Reality Revisited”, supra n. 16, at 2491–2501.

44 Walker Nigel, Why Punish? (Oxford, 1991), chap. 9. Walker focuses on a fact he believes to be “awkward” for the retributivist, which is “the fact that by no means everyone perceives retribution as a duty” in response to my thought experiments. Walker anticipates that I might explain this fact by reference to a defective upbringing, but urges that I cannot avail myself of this explanation since it suggests that the perception which I posit “is really a learned reaction to offending rather than an inborn intuition”.

To begin with, Walker gets the competing explanations a bit askew: “Inborn intuition” is not the explanation competing with Walker's social upbringing explanation; “causation by the desert of offenders” is the competing explanation of our reactions offered by the retributivist. Secondly and more importantly, Walker is too Manichean in his competition between explanations. Surely part of why we believe anything (e.g., about physics) is due to our educational experiences; yet so long as another part of the overall explanation as to why we believe (e.g., that protons exist) is that our perceptual beliefs about cloud chamber phenomena are caused by protons, then we have good reason to believe such truths of physics.

45 See Mackie, “Retributivism: A Test Case for Ethical Objectivity”, supra n. 2; Mackie, “Morality and the Retributive Emotions”, supra n. 2. It is important to see that in these papers Mackie was not arguing against retributivism in substantive ethics; rather, he was arguing against moral realism in meta-ethics. Since my mode of justifying retributivism presupposes moral realism (in that the objective truth of retributivism causes us to have retributive attitudes), Mackie's attack on moral realism becomes an attack on my way of justifying retributivism.

46 Mackie, “Retributivism: A Test Case for Ethical Objectivity”, supra n. 2, at 683.

49 Mackie, “Morality and the Retributive Emotions”, supra n. 2, at 8–9.

50 Ibid., at 7.

52 Ibid., See also Mackie, supra n. 42, chap. 1.

53 Moore, “Moral Reality”, supra n. 16, at 1086–88, 1117–36; Moore, “Moral Reality Revisited”, supra n. 16 at 2501–2506, 2513–2526.

54 Mackie, “Morality and the Retributive Emotions”, supra n. 2, at 4.

55 See, e.g., Murphy Jeffrie, Retribution, Justice and Therapy (Reidel, 1979); Sher George, Desert (Princeton, 1987).

56 For the superiority of moral realist explanations of our moral beliefs generally, see Moore, “Moral Reality Revisited”, supra n. 16, at 2491–2533; Sturgeon Nicholas, “Moral Explanations”, in Copp David and Zimmerman David, eds., Morality, Reason and Truth (Rowman and Allanheld, 1984); Brink David, Moral Realism and the Foundations of Ethics (Cambridge, 1989), chap. 7.

57 I explored this concern in some detail in “The Moral Worth of Retribution”, supra n. 1.

58 Ibid., at 199–202.

59 This heuristics view of consciousness is defended by me in “Mind, Brain, and the Unconscious”, in Clark P. and Wright C., eds., Mind, Psychoanalysis, and Science (Basil Blackwell, 1988).

60 The following is a sampling of the now considerable literature on the rationality of the emotions: Sousa Ronald de, “The Rationality of the Emotions”, in Rorty A., ed., Explaining Emotions (U. of Calif. P., 1980); de Souea , The Rationality of the Emotions (MIT Press, 1987); Gordon R., The Structure of Emotions: Investigations in Cognitive Psychology (Cambridge U. P., 1987); Lyons W., Emotion (Cambridge U. P., 1980); Scruton, “Emotion, Practical Knowledge, and Common Culture”, in A. Rorty, supra; Calhoun , “Cognitive Emotions?”, in Calhoun C. and Soloman R., eds., What Is an Emotion? (Oxford U. P., 1984); Roberts , “What an Emotion Is: A Sketch” (1988) 97 Philosophical Review 183209.

61 On the implicit reliance by Freud on these laws of appropriate emotional response, see Sachs David, “On Freud's Doctrine of the Emotions”, in Wollheim R., ed., Freud (Anchor, 1975).

62 This situation is nicely described in Morris Herbert, “Nonmoral Guilt”, in Shoeman F., Character, Responsibility, and the Emotions (Cambridge U. P., 1987).

63 Joseph Raz, for example, so takes this evidence. See the discussion in Moore, “Law, Authority, and Razian Reasons”, supra n. 6, at 860–61.

64 Joel Feinberg and Hyman Gross, supra n. 2, at 630.

65 Dolinko, supra n. 3, at 555.

66 Ibid., at 557.

67 Smith M. B. E., “Is There a Prima Facie Obligation to Obey the Law?” (1973) 82 Yale L. J. 950976; Raz Joseph, The Authority of Law (Oxford, 1979); Hurd Heidi, “Challenging Authority” (1991) 100 Yale L. J. 16111677.

68 Dolinko, supra n. 3, at 667.

69 E.g., Hart H. L. A. and Honore Tony, Causation in the Law (Oxford, 2nd ed., 1985).

70 Dolinko, supra n. 3, at 557.

71 Moore, “A Theory of Criminal Law Theories”, supra n. 15.

73 See, e.g., Kadish Sanford, “The Crisis of Overcriminalization” (1967) 374 Annals 157170.

74 See, e.g., Shklar Judith, Ordinary Vices (Harvard, 1984).

75 On the principle of legality and the values for which it stands proxy, see Moore , “The Limits of Legislation” [Fall 1984] USC Cites 2332; Moore, Act and Crime, supra n. 2, chap. 9.

76 See Moore, “A Theory of Criminal Law Theories”, supra n. 16, at 181–83; Moore , “Sandelian Anti-Liberalism” (1989) 77 Calif. L. R. 539661; Raz Joseph, The Morality of Freedom (Oxford U. P., 1987); George Robert, Making Men Moral: Civil Liberties and Public Morality (Oxford U. P., 1993).

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