Despite the bad press that retributivism often receives, the basic assumptions on which this theory of punishment rests are generally regarded as being attractive and compelling. First of these is the assumption that persons are morally responsible agents and that social practices, such as criminal punishment, must acknowledge that fact. Additionally, retributivism is committed to the claim that punishment must be proportionate to the crime, and not determined by such utilitarian concerns as the welfare of society, or the hope of deterring other criminals.Jeffrie Murphy writes, “Even many people who do not like the name ‘retributivist’ are persuaded by considerations that are clearly retributive in nature. Suppose it was suggested that we punish negligent vehicular homicide with life imprisonment and first degree murder with a couple of years in jail, and suppose this suggestion was justified with the following utilitarian reason: Conduct of the first sort is much more common and dangerous than conduct of the latter sort (we are much more likely to be killed by a negligent driver than by someone who kills us with the primary object of killing us), and thus we should use the most severe deterrents against those who are genuinely dangerous. If we object to this suggestion, as most of us would want to, that this would be unjust or unfair because it would not be apportioning punishment to fault or desert, we should be making a retributive argument. Thus even if the label ‘retributivist’ repels most people, many of the actual doctrines of the theory do not.” Jeffrie Murphy, Retribution, Justice, And Therapy 230 (1979). Because the most commonly discussed version of retributivism is developed from Kant’s moral and legal theory, I will refer to it as Kantian Retributivism.This interpretation of Kant’s theory of punishment has been developed by Herbert Morris, Persons and Punishment, 52 Monist 475 (1968), and Murphy, supra note 1. Despite its appeal, Kantian Retributivism cannot provide a satisfactory response to a kind of case that is receiving increasingly serious consideration in philosophical literature. The case is this: Many crimes are committed by individuals profoundly disadvantaged by unjust social institutions, such as racism, classism, and/or sexism. If such individuals commit crimes, the retributivist is placed in a very difficult position: Either she must claim that the individual has willfully committed a crime and for that reason deserves punishment, seeming to ignore entirely the social background of the individual, or she can claim that the individual—in virtue of being disadvantaged by social injustices(s)—does not deserve punishment because such punishment would be unfair.Murphy comes to the conclusion that the punishment of such individuals is unfair and, therefore, unwarranted. See Jeffrie Murphy, Marxism and Retribution, in Murphy, supra note 1, at 93–114. I have argued elsewhere that neither strategy is tenable.See Jami L. Anderson, Reciprocity as a Justification for Retributivism, 16 Crim. Just. Ethics 13–25(1997).

What is law, and how do we know what law is? When a philosopher of law asks these questions, it pays to be cautious. When asked philosophically, the question what is law? is clearly not a question about the content of particular laws, although that question is not devoid of philosophical interest: As Nigel Simmonds has said, when disagreements about the law’s content occur, these are generally not disagreements about what the rules are, nor do they revolve around theses of ambiguity in the semantic structure of specific rules. Rather, they seem to depend upon varying conceptions of the framework of principles upon which the law is based.See Nigel Simmonds, The Decline Of Juridical Reason 17–19 (1984).

Positivism’s Separability Thesis denies that the legality of a norm necessarily depends on its substantive moral merits; as H.L.A. Hart puts it, “[I]t is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so.”H.L.A. Hart, The Concept Of Law 185–86 (2d ed. 1994) [hereinafter CL]. Accordingly, the Separability Thesis implies it is logically possible for something that constitutes a legal system to exclude moral norms from the criteria that determine whether a standard is legally valid. In such a legal system, it is neither a necessary nor a sufficient condition for a norm N to be legally valid that N be consistent with a set of moral norms.