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Punishment, the New Retributivism, and Political Philosophy

Published online by Cambridge University Press:  08 January 2010

Ted Honderich
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Extract

This paper will in good part concern six arguments taken as making up what is called the New Retributivism. It will also have to do with a seventh retributivist argument, and with the unexamined idea that reflection on punishment can lead a life of its own, independently of political philosophy. Both that idea and the arguments bear on the main question of whether punishment in our societies is right or wrong. It is a question not worn to a frazzle, as is the one of how it is that punishment is right, which piously presupposes that it is. My answer to the impious question gets very little wear in this reactionary and, as it sometimes seems, vengeful time. For a particular reason, it will have to go undefended here.

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Papers
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Royal Institute of Philosophy Supplements , Volume 18: Philosophy and Practice , September 1984 , pp. 117 - 147
Copyright
Copyright © The Royal Institute of Philosophy and the contributors 1984

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References

1 See ‘Symposium: The New Retributivism’, Journal of Philosophy LXXV, No. 11 (1978)Google Scholar, containing articles by Hugo Adam Bedau, Richard Wasserstrom and Andrew von Hirsch; Galligan, D. J., ‘The Return to Retribution in Penal Theory’, in Crime, Proof and Punishment, Tapper, C. (ed.) (London: Butterworth, 1981)Google Scholar; articles discussed below, notably those by Davis, Finnis, Goldman, Morris, Murphy and Nino; Floud, Jean and Young, Warren, Dangerousness and Criminal Justice (London: Heinemann, 1981)Google Scholar; Gross, Hyman, ‘Culpability and Desert’, in Philosophy and the Criminal Law Duff, R. A. and Simmonds, N. E. (eds.) (Weisbaden: Franz Steiner, 1984)Google Scholar. The later two are not discussed here but in my ‘On Justifying Protective Punishment’, British Journal of Criminology 22, No. 3 (1982)Google Scholar and ‘Culpability and Mystery’, in Duff, and Simmonds, , op. cit.Google Scholar

2 I am most grateful to Nicola Lacey for criticism of an earlier draft of this paper, and also to Peter Morriss, and to critics who heard it at the Royal Institute of Philosophy, and at Birkbeck College, the City University, and the Universities of Aberystwyth and Edinburgh. My thanks to John Finnis and Carlos Nino, with whom my disagreement persists.

3 With respect to the code, see Galligan, , op. cit., 144.Google Scholar

4 They are discussed in Rescher, Nicholas, Distributive Justice (Indianapolis: Bobbs-Merrill, 1966).Google Scholar

5 Smart, J. J. C. and Williams, Bernard, Utilitarianism: For and Against (Cambridge: University Press, 1973).CrossRefGoogle Scholar

6 See Kenny, Anthony, Freewill and Responsibility (London: Routledge, 1978), 69–76Google Scholar, and Bedau, Hugo Adam, ‘Retribution and the Theory of Punishment’, Journal of Philosophy LXXV, No. 11 (1978), 611–615Google Scholar. Joel Feinberg, in an admissible analysis of the several settings in which we use desert-locutions, takes of as generally time that to say someone deserves something is to say he satisfies certain conditions of worthiness. Doing and Deserving (Princeton: University Press, 1970), Ch. 4.Google Scholar

8 Other understandings are considered in my Punishment, the Supposed Justifications (Harmondsworth: Penguin, 1976), 26–33Google Scholar et seq. I do not there take it, incidentally, as might be thought from a reading of Cottingham, J. G., ‘Varieties of Retribution’, Philosophical Quarterly 29, No. 116 (1978)Google Scholar, that retributivism can be analysed as the claim that offenders ‘deserve’ punishment. Nor, as might be thought, do I overlook the ‘varieties of retribution’ he distinguishes.

9 Davis, Lawrence H., in ‘They Deserve to Suffer’, Analysis 32, No. 4 (1972)CrossRefGoogle Scholar, referring to my Punishment, The Supposed Justifications, says I am in error and confusion because I say, as above, that sometimes people use (1) He deserves the penalty to mean (2) It's right that he get the penalty, and hence that they cannot give (1) as a reason for (2). The main presumed error, although Davis is not sufficiently explicit, must be the failure to see what is presumed to be true, and discussed below, that (1) and like claims are standardly used only to mean (3) there is intrinsic good in his suffering, he being guilty. The second presumed error is thus supposing that (1) does not provide a reason for (2). The presumed confusion, also owed to failing to see that (1) is equivalent to (3), is running together (1) and (2). My reply is that there is no error and no confusion since it is not true, but false, that (1) and like claims are standardly used to mean only (3). Rather, there is a use of (1) which makes it equivalent to (2), commoner than its use as equivalent to (3). What I say depends only on the use of (1) as equivalent to (2).

10 Davis, , op. cit., 139.Google Scholar

11 Jeffrie G. Murphy and John Finnis, discussed below.

12 Cf. Strawson, P. F., ‘Ethical Intuitionism’, Philosophy XXIV, No. 94 (1949)Google Scholar. For discussions and defences of what may seem in some respects a successor to Moral Intuitionism—Moral Realism—see Honderich, (ed.), Morality and Objectivity: A Tribute to John Mackie (London, Routledge, 1985).Google Scholar

13 Goldman, Alan H., ‘The Paradox of Punishment’, Philosophy and Public Affairs 9, No. 1 (1979).Google Scholar

14 It is the burden of Goldman's essay that while his proposition about rights does indeed give one of the necessary reasons for punishment, a part of a justification, it is in conflict with the other part, concerning prevention. Hence the paradox of his title.

15 Nino, C. S., ‘A Consensual Theory of Punishment’, Philosophy and Public Affairs 12, No. 4 (1983)Google Scholar

16 Op. cit., 306.

17 Op. cit., 302.

18 Op. cit., 302–303.

19 There is a related retributivist argument for punishment, essentially simply that an offender chose between two options open to him: keeping and breaking the law. This, distinct from Consensual Retributivism, is considered in my Punishment, The Supposed Justifications, 33 et seq. Cf. Goldmand, , op. cit., 54–56.Google Scholar

20 Nino, , op. cit., 293.Google Scholar

21 Nino does write that following out his suggestion as to the justification of punishment ‘would lead to a discussion of the extent to which the consent of the person affected can justify measures and political arrangements which may imply inequitable burdens upon him. I shall not develop this theme here; but I venture to say that the discussion of the justification of punishment could be considerably expanded and illuminated if it embraced this topic’ (op. cit., 305).

22 This is one of several lines of thought in Murphy, Jeffrie G., ‘Marxism and Retribution’, Philosophy and Public Affairs 2, No. 3 (1973)Google Scholar. For clarity, I treat it separately. Cf. Rawls, John, A Theory of Justice (Oxford: Clarendon, 1972).Google Scholar

23 Kant, Immanuel, The Metaphysical Elements of Justice (1797), trans. Ladd, John (Indianapolis: Bobbs-Merrill, 1965), 55ffGoogle Scholar. Cited by Murphy, , op. cit., 225.Google Scholar

24 Murphy, , op. cit., 225.Google Scholar

25 ‘Concerning the Common Saying: This May be True in Theory but Does Not Apply in Practice’ (1773), in The Philosophy of Kant, trans. Friedrich, Carl J. (New York: Modern Library, 1949), 421–422Google Scholar. Cited by Murphy, , op. cit., 226.Google Scholar

26 ‘The Use of the Basic Proposition of a Theory of Justice’, Mind LXXXIV, No. 333 (1975).Google Scholar

27 Restorative Retributivism of a kind is defended, although not clearly separated from other things, in Morns, Herbert, ‘Persons and Punishment’, The Monist 52, No. 4 (1968)Google Scholar. The same is true of Murphy, , op. cit.Google Scholar, and also Murphy, , ‘Three Mistakes About Retributivism’, Analysis 31, No. 5 (1971)CrossRefGoogle Scholar. See also Finnis, John, ‘The Restoration of Retribution’, Analysis 32, No. 4 (1972)CrossRefGoogle Scholar, and Natural Law and Natural Rights (Oxford: Clarendon, 1980), 260–266.

28 Finnis makes the point clearly.

29 See Finnis, , ‘The Restoration of Retribution?’, 134.Google Scholar

30 He develops his conclusion most fully in ‘Marxism and Retribution’. There is also a related concession, to my mind given insufficient attention, in Morris, op. cit. Finnis touches on the question and appears to want to have it both ways: that the theory does and does not apply to other than ‘an imaginary “well-ordered” society’ (Natural Law and Natural Rights, 264–265).Google Scholar

31 Mackie, J. L., ‘Morality and the Retributive Emotions’, Criminal Justice Ethics 1, No. 1 (1982), 3, 6CrossRefGoogle Scholar. Kenny, (op. cit., 69f)Google Scholar has the related view that retributivism is incoherent.

32 Mackie, , op. cit., 3.Google Scholar

33 The view was defended in my Punishment: The Supposed Justifications. It is evidently distinct from the view that punishment has an expressive function, although some things said in that theory move in my direction, e.g. that ‘punishment generally expresses more than judgments of disapproval; it is also a symbolic way of getting back at the criminal, of expressing a kind of vindictive resentment’ (Feinberg, , ‘The Expressive Function of Punishment’, op. cit., 100).Google Scholar

34 All of the views of the justification of punishment considered in this essay are retributivist in the sense defined earlier. That is, they all involve desert-locutions. Further, they have a common character in that they can be said to be directed at the offender, rather than to something else, and they do at least tacitly purport to give the justification of punishment inherent in the retributivist tradition. However, despite Mackie's view to the contrary, (op. cit., 4f), not all are attempts to justify punishment without reference to its effects. Restorative Retributivism, at any rate, can in a sense be said to justify punishment by an effect: the restoration of a distribution of burdens and benefits. The view is in a sense forward-looking and consequentialist. The difference between this and the other views considered suggests an alternative categorization of views of punishment, involving a different definition of retributivism. Here, retributivism includes only views which do not justify punishment by any effect. It includes the two Old Retributivist views considered above, and all the New ones except for Restorative Retributivism. The other two categories of views would be those of a Utilitarian kind and those informed by a principle of distributive justice. The later category would include Restorative Retributivism and my own view, set out below.

35 Walker, Nigel, in ‘Symposium: Predicting Dangerousness’, Criminal Justice Ethics 2, No. 1 (1983), 15.Google Scholar

36 General View of the Criminal Law of England (London: Macmillan, 1863), 99Google Scholar. Cf. Sidgwick, Henry, The Methods of Ethics (London: Macmillan, 1963), Bk III, Ch. 5.Google Scholar

37 Murphy, , ‘Three Mistakes About Retributivism’, op. cit., 169.Google Scholar

38 Cf. Goldman, , op. cit.Google Scholar, on conflicting parts of ‘mixed’ theories of punishment.

39 See above, pp. 136–139. Cf. Goldman, , op. cit., 44.Google Scholar

40 ‘The Question of Well-being and the Principle of Equality’, Mind XC, No. 360 (1981).Google Scholar