Bedau - Retribution and The Theory of Punishment

Journal of Philosophy, Inc.
Retribution and the Theory of Punishment Author(s): Hugo Adam Bedau Reviewed work(s): Source: The Journal of Philosophy, Vol. 75, No. 11 (Nov., 1978), pp. 601-620 Published by: Journal of Philosophy, Inc. Stable URL: http://www.jstor.org/stable/2025477 . Accessed: 05/02/2013 03:59
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THE JOURNALOF PHILOSOPHY

VOLUME LXXV, NO. II, NOVEMBER I978
RETRIBUTION
T
AND THE THEORY OF PUNISHMENTS
HE idea that retribution, along with prevention of crime
and reformationof convicted criminals,plays a role in the
nature and practice of punishment is a common theme in accounts of punishment at least since T. H. Green., Exactly what that role is, however, its scope and limitations, its explanation and justification-indeed, what retribution itself is-have continued to be so controversial that it is difficult to think of a single retributivist doctrine or thesis that has not been challenged or rejected in the course of explaining or defending a retributivist theory of punishment. In recent years, this confusion has continued alongside the growing popularity in many quarters of retributive ideas, a popularity owing as much to despair over prevention and rehabilitation in our current system of criminal justice as to enthusiasm for retribution. Two decades ago, it seemed not implausible to declare that "retribution is obsolete."'2 Within a few years, however, it was staging a revival of sorts in England.$ Now, it is visibly advocated
*To be presented in an APA symposium on the New Retributivism, December 27, 1978. Richard Wasserstromand Andrew von Hirsch will comment; see this JOURNAL, this issue, 620-622 and 622-624, respectively. Earlier versions were given as guest lectures to the Departments of Philosophy at the University of G6teborg, Rice University, and Brown University. The penultimate draft of this version has been improved by criticisms from MarkBedau. lLectures on the Principles of Political Obligation (1882), Bernard Bosanquet, ed. (London: Longmans, 1941), ?? 176-206. Parenthetical page references to Green will be to this book. Earlier writers seem to defend either a purely retributive theory (e.g., Kant), a purely utilitarian theory (e.g., Hobbes, Bentham), or to discuss the role of retribution only in passing and without much conviction (e.g., J. S. Mill). 2 Henry Weihofen, "Retribution Is Obsolete," in Carl J. Friedrich., ed., Nomos III: Responsibility (New York: Liberal Arts Press, 1960), pp. 116-127. 8See especally Nigel Walker, The Aims of the Penal System (Edinburgh: 0 1978 The Journal of Philosophy, Inc. 0022-362X/78/7511/0601$02.00
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THE JOURNAL OF PHILOSOPHY
in this country by those who stress that punishment is a criminal's "just deserts".4 Even the Bill of Rights has been interpreted in the last few years by the. Supreme Court, under the urging of the Solicitor General, so that it now accommodates retributive purposes in punishment in general and on behalf of the severest mode of punishment-the death penalty-in particular.5 Thus, after several decades as the poor relation in the family of theories of punishment, retributivism seems to be in the ascendant. It behooves us to look once again at its distinctive features and to come to terms with them. A decade ago, H. L. A. Hart offered a model of the retributive theory of punishment; despite its usefulness and availability, it seems to have been ignored in the subsequent formulations and criticisms of retributivist theories.6 I propose to use it here as the focus for discussion. According to Hart,7 a retributive theory of punishment involves, at a minimum, three tenets (231): R1: A person may be punished if and only if he has voluntarily done somethingwrong. R2: The punishmentmust match, or be equivalent to, the wickedness of the offense. R3: The justification for punishing persons is that the return of
University Press, 1966), reprinted in revised and abbreviated form in his Sentencing in a Rational Society (New York: Basic Books, 1971), pp. 1-22; the development may be traced in H. B. Acton, ed., The Philosophy of Punishment (London: Macmillan,1969). 4 Andrew von Hirsch, Doing Justice: The Choice of Punishments (New York: Hill and Wang, 1976). Parenthetical page references to von Hirsch (see esp. sec. will be to this book. Von Hirsch prefers not to have his view called "retrimIX) bution" because this is not "a helpful term" (45). The introduction to his book, however, is written by colleagues who do not shrink from attributing to society and to themselves a "retributive purpose" in punishment (xxix). 5 Brief for the United States as Amicus Curiae, Fowler v. North Carolina, O.T. 1974, No. 73-7031,at p. 41; Brief for the United States as Amicus Curiae, Gregg v. Georgia et al., O.T. 1975, No. 74-6257,etc., at p. 47; Gregg v. Georgia, 428 U.S. 153, 183-184 (1976). I have criticized the appeal to retribution in these cases in The Courts, the Constitution, and Capital Punishment (Lexington, Mass.: D. C. Heath, 1977), pp. 117-8, and at greater length in "The Death Penalty: Social Policy and Social Justice," Arizona State Law Journal, forthcoming. 6See, e.g., Gertrude Ezorsky, ed., Philosophical Perspectives on Punishment (Albany: State University of New York Press, 1972), pp. xvii-xxii; Joel Feinberg and Hyman Gross,eds., The Philosophy of Law (Belmont, Calif.: Dickenson, 1975), pp. 500-506; John Kleinig, Punishment and Desert (The Hague: MartinusNijhoff, 1973). 7 Punishment and Responsibility (New York: Oxford, 1968). Parenthetical page referencesto Hart will be to this book.
THE NEW RETRIBUTIVISM
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suffering for moralevil voluntarily done is itself just or morally

good.
We may call these theses, respectively, the principle of responsibility (R1),8 the principle of proportionality(R2), and the principle of just requital (R]). I shall begin by considering this model from the standpoint of the theory of punishment and some of the criticisms to which it is open from this direction (section i). Then, after considering the model's apparent omission of the concept of desert (section Is), I shall turn to evaluating some recent attempts to explicate the principle of proportionality (section iII). Finally, I shall examine attempts to construct a purely retributive theory of punishment that manages to avoid familiar objections to the principle of just requital (section iv). Although I shall have a good deal to say about R2 and R3, I shall have little to say about RI. Whereas Hart introduces his model retributive theory mainly in order to consider various "modificationsof the model" (233), I shall ignore these modifications, though they are not without interest, because they do not bear on the criticisms I shall consider. I have elsewhereundertakento examine the retributive theory and have argued for several concessions to it." To that extent, I suppose, I am myself a retributivist,much to my surprise. With one exception below (section in) I shall try not to retrace any of that groundhere. Hart claimed that R17RB constitute retributivistanswersto "all the main questions to which a theory of punishment is addressed" (231). But what are these questions, and why are they all and only "the main questions"?Hart seems not to have worried about this. All he had to say on the concept of a theory of punishment is that such theories are not theories "in any ordinarysense"of that term because they are made up mostly of "moralclaims as to what justi8 In an earlier paper, "Prolegomenon to the Principles of Punishment" Hart had described what amounts to R1 as the principle of "retribution (195.9), in distribution"; subsequent commentatorshave usually discussed it under this
heading. See Hart, op. cit., p. 9.
9See my "Concessionsto Retribution in Punishment," in J. B. Cederblom and William L. Blizek, eds., Justice and Punishment (Cambridge, Mass.: Ballinger, 1977), pp. 51-74. After that paper was published. I discovered that Brand Blanshardhad anticipated me with his own "Concessionsto the Retributive Theory"; see the middle section of his "Retribution Revisited," in Edward H. Madden, Rollo Handy, and Marvin Farber, eds., Philosophical Perspectives on Punishment (Springfield,Ill.: Charles C Thomas, 1968), pp. 59-81. A reader of both papers will discover that none of Blanshard'sconcessions were among those I made.
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fies the practice of punishment," and they are "independent of any question of fact or evidence." l Theories in the proper or ordinary sense of that term, Hart implied, do not exhibit either of these traits. Today, such starkly positivistic views about the nature of theories are unfashionable, and it would be interesting to work out in detail a better general account of what a theory of punishment could and should be. Here, the most I can do in that regard is to sketch some suggestions in the course of trying to show that R,-R3 give us an incomplete model of retributive punishment. Hart is surely right when he says that retribution, deterrence, and reformation are mainly "moral claims as to what justifies the practice of punishment." Still, when earlier philosophers, such as Green, undertook to determine (181) "whether punishment according to its proper nature is retributive or preventive or reformatory," is it so clear that the only important thing at issue was the justification of the practice of punishment? I think not. Surely, it is not implausible to think that part of what we want from a theory of punishment is an answer to the question, What is (the nature of) punishment? asked in a sense such that what counts as an answer, or part of the answer, is what we might call a definition of 'punishment'. A subsidiary question under What is the nature of punishment? is, What sort of things must we do in order to punish a person?1 As etymology assures us, retribution involves the idea of someone's paying something back to someone else. So retributive punishment must embody the idea of something being paid back to the offender (or by the offender, or both)-something akin to what the crime did to its victim(s). The concept of a retributive punishment, therefore, is the concept of a punitive harm, suffering, or deprivation, because it is harm, suffering, or deprivation that the acts typically defined as crimes inflict on their victims. So we might consider amending the model to include the following: Al: Something imposed on a person counts as a punishment only if it is a harm or deprivation or causes sufferingor pain to that person. Another question not satisfactorily answered by the model is, What makes a person liable and eligible for punishment? The 'l"Murder and the Principles of Punishment" (1957), in Hart, op. cit., pp. 71-73. t1 In the rest of this paragraph I borrow from my "A World without Punishment?" in Milton Goldinger, ed., Punishment and Human Rights (Cam. bridge, Mass.: Schenkman,1974), pp. 152/3.
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answer is, Being guilty of an offense-a thesis sometimes called "logical retributivism" 12 and widely argued during the past generation to be part of the nature of punishment. Some might read R, as though it already implies this idea and, thus, deny that the model needs amendment to include it. But such a reading of R, inconveniently collapses into a single thesis two quite independent ideas, each of which can properly be regarded as retributive in nature. One is that a person's liability and eligibility for punishment turns on whether he is guilty of an act subject to punishment.18 The other is that punishable acts should be confined to voluntary wrongdoing, in a sense of 'voluntary' sufficient to exclude so-called "strict liability offenses." If R, is taken to express only this latter idea (and this seems to be how Hart understands it), then the following amendment would be in order: A2: A person is liable and eligible for punishment if and only if he is guilty of an offense. Certainly Hart and probably others would agree that Al and A2 express the nature of justified punishment, but they would not accept them as proper amendments to the model of retributivism. They would argue that A, and A2 are part of the definition of 'punishment' and, thus, being shared by all theories of punishment, are improperly incorporated into any."4 I would reply that ignoring Al and A2 either unduly limits the idea of a theory of punishment to the justification of punishment, or forces us to deny that A, and A2 express retributive ideas. I find neither alternative attractive. These difficulties, as well as other considerations, can be conveniently brought out by a closer consideration of the status of Al. First, the reason a retributivist wants to impose harms as punishattributes the inspiraQuarterly, xiII, 1 (January 1976):85-87,p. 85. Champlin to whom"the firstprinciple tion for this phraseto AntonyQuinton,according of retributivism that a man be guilty if he is to be is that it is necessary of the use of the word"'punisha thesissaid to be "an elucidation punished," ment'and, thus,a "necessity... not moralbut logical." Quinton,"On Punishment"(1954), reprintedin Acton,ed., op. cit., pp. 55-64. 1' Throughout,I ignore complications arising from whetherit is legal or moralwrong,or both, that is at issue,and whetherit is guilt or being found
guilty that qualifiesa person for punishment. 14 Thus, Hart defines punishment so that it "must involve pain or other consequences normally considered unpleasant" (roughly equivalent to A,) and "must be for an offense against legal rules" (roughly equivalent to As). See his "Prolegomenonto the Principles of Punishment" (1959), reprinted in Hart, op. cit., pp. 4/5.
12 T.
S. Champlin, "Punishment without Offense," American Philosophical
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ments, rather than pleasures or something else, is not the reason the utilitarian has for doing the same thing. The utilitarian who believes in prevention and deterrencethreatensand imposes harms as punishment in order to provide a disincentive to prohibited conduct. As for the believer in reform, it is not obvious that he thinks the concept of punishment is necessarilythe concept of something harmful in itself. If the reformer really is defending a theory of punishment, rather than (as sometimeshe seems to be) advocating an alternative to punishment, it may be that what he favors imposing on persons as their punishment is never chosen because he believes that it is harmful. If so, then it is false to assume that all the classic theories of punishment presuppose the same neutral definition of 'punishment'.The considerationshere are parallel to those which arise in the discussionof civil disobedience.It is quite clear now, even if it was not some years ago, that the definition of 'civil disobedience' is not altogether independent of the justification of civil disobedience.15 So with 'punishment'and the justification of punishment. Second, although Hart writes as if he has identified in R1-R3 three theses unique to retributivism,this is not entirely consistent with what he writes elsewhere, and is in any case doubtful. Hart quite rightly makes much of the fact that the principle of responsibility (R1) needs neither to be based primarilyon retributive ideas nor to be taken to express them. Instead, it can be seen as an expression of "the simple idea that unless a man has the capacity and a fair opportunity or chance to adjust his behavior to the law its penalties ought not to be applied to him" (181). Likewise with the principle of proportionality (R2); Hart notes that the most plausible interpretationof this principle may turn it into a doctrine that the utilitarian will find attractive(234). Thus, Hart himself shows how nonretributivistsmay find that they, too, want to defend these elements of the retributive theory. So, even if some nonretributivistswould want to defend A1 and A2, Hart cannot for that reason argue that they are not part of the retributive theory. What nonretributivistsmust reject, of course, is the principle of just requital (R3), and, if they accept A1, it must be on a different ground from that of the retributivist. Given this, the adequacy of the model Hart formulates for the purposes of understanding the retributive theory cannot rest on
15 See John Rawls, A Theory of Justice (Cambridge,Mass.: Harvard, 1971), ?? 55-59; Peter Singer, Democracy and Disobedience (New York: Oxford, 1973); Burton Zwiebach, Civility and Disobedience (New York: Cambridge, 1975).
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the claim that no nonretributivetheory incorporatesany of R,-R8. It must rest, rather, on the fact that (a) all the many variants of the retributive theory can be conveniently formulated through revisions and amendments to R1-R8, and (b) no nonretributive theory can incorporateall three of these theses. Adding A1 to the model does not affect (a) and (b); it thus leaves intact the chief merits of the original model. What holds for A1 in this regard holds also for A2. Conversely,the explicit denial of A1 and A2 by a retributivist is virtually inconceivable; they play as essential a role to any possible retributivisttheory of punishment as do any of
RI-Rs.
Let us return to the "main questions" to which the theory of punishment is addressed. As Hart saw them, they were three: "'What sort of conduct may be punished?', 'How severely?',and 'What is the justification for the punishment?'" (231). Are there other elements of a complete theory of punishment, however, that R1-R3 fail to provide, other "main questions" (like the question, What is the nature, of punishment?) that Hart has ignored or rejected?He wafflesa bites and it is difficult to knqw what to say because we have no firm grasp on the idea of a complete theory of punishment. It is easy enough to think of other questions about punishment whose answersare not given or implied by the answers to-the three questions Hart identifies, questions that other philosophers have tried to answer:Who may inflict punishment?Why do we want to punish and (insofar as we do) want to be punished? Under what conditions does a system of victim compensation by offenderscount as a mode of punishment rather than an alternative to punishment?Are there any moral considerationsthat decisively rule against certain modes of punishment (e.g., corporal or incarcerativepunishments)?What constitutes the severity of a punishment?What social functions does a system of punishment actually perform? What social costs are reasonable to incur in order to obtain the benefits of an efficientsystem of punishment?
16 Consider his remarks on the questions, Why do men punish? (74) and Who may be punished? (11). The context implies that the first question is best left for social scientists to answer. As for the second question, one might argue (though Hart does not) that it can be dropped in favor of Hart's first "main question," viz., What sort of conduct may be punished?, because an answer to the latter will guarantee an answer to the former. One might also wonder whether this is true, however. Unless the capacities underlying "voluntary conduct" are necessarily tied to the capacity to understand threats, to deliberate over selfish advantage, and so forth, it might be that various classes of infrapersons are conceivable objects of punishment even though their conduct does not make them eligible for punishment under R1.
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What is required to justify the punishment of this offender for this crime in this manner? Perhaps philosophers, out of a healthy respect for a division of intellectual labor between themselves and social scientists, need not trouble with most of these (empirical? normative? merely administrative?) questions. But we cannot claim to understand the practice of punishment unless we are ready with answers to all these questions; and if the social philosopher's job is to understand and justify the basic structure of social institutions, surely he will find that the criminal justice system is among them, and then any or all of these questions may well fall within his purview. Does a retributivist have answers to all these questions, even if his answers cannot be extracted from R1-R3? Certainly there are some questions to which he does not have an answer, and to which the answer seems indifferent to his theory (e.g., Who may inflict punishment?). For some other questions, however, there are retributivists who will be ready with an answer. Some retributivists believe that we want to punish the guilty, or want to be assured that someone will undertake to punish them, because in that way we purge ourselves of feelings of vicarious resentment; and that, where we are ourselves the victims of crime, we want the offender punished out of revenge. (As James Fitzjames Stephen once said, punishment stands to revenge as marriage does to lust.) Without trying to examine and answer all these questions, we can say that retributivism is not a complete theory of punishment if we identify the retributive theory with R1-R3 (or even with R1-R3 plus A1A2) and if a complete theory is one that states or implies an answer to every serious question that arises in the theory and practice of punishment; and that R1-R3 is an adequate model of the retributive theory only to the extent that it gives answers to some of the main questions about punishment.
II
Hart's model of the retributive theory of punishment is open, it appears, to a major objection, which goes like this. Retributivism without desert-the concept of punishment as something deserved by whoever is rightly made liable to it-is like Hamlet without the Prince of Denmark. Hart's model ignores desert; none of R1-R3 is expressly formulated in terms of this concept. The model is, therefore, at best insufficient for a discussion of retributive punishment. There are at least two ways of replying to this criticism. One is to concede both its contentions (that desert is essential to the retributive theory and that Hart's model omits desert, or at best
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includes it only tacitly), and undertake to remedy the model by supplementing it in some way or other in order to introduce the idea of desert. The other is to grant that Hart's model does omit the idea of desert, but then insist that this omission does not matter because it is not true that desert is essential to retributivism in contrast to other theories of punishment. Let us look more closely at each of these lines of response. The first alternative admits of several variations. One would be to reformulate one or more of R1-R3 in terms of desert, e.g., to transform the principle of responsibility into a principle of desert, to read "Harm is deserved as punishment if and only if it is done to someone who has voluntarily done wrong." Such a transformation could be said, with a little charity, to capture the essential idea that a person's desert is always uniquely determined by reference to things that he did and that are, now, behind him, in the past.17 Or one might leave all of R1-R3 intact and add a further thesis whose sole function would be to introduce the missing idea of desert. Some such thesis as the following would do: R4: Punishment is deserved by a person only if it is imposed by reference to his culpable acts or omissions, and the punishment he deserves is determined by the principle of proportionality
(R2)-
Yet another possibility would be to assert that R1-R2 constitute the meaning of, or the truth conditions for, deserved punishment. Each tactic has its inelegancies, and each results in a slightly different sense of 'desert' as well. But the general idea in each case is clear enough, and one or the other should be sufficient for the purpose. As for the possibility that desert is already implicitly in Hart's model as he formulates it, we should note that he manages the unusual feat of conducting his discussion of the retributive theory without once mentioning or using 'desert' or any synonym for it.18 Surely this suggests that he does not think desert is central or peculiar to this theory of punishment at all. The second alternative presents us with at least two variants that need to be canvassed. One is the sweeping view that the class
17 Feinberg, "Justice and Personal Desert" (1963), reprinted in his Doing and Deserving (Princeton: University Press, 1970), pp. 56-61; Kleinig, "The Concept of Desert," American Philosophical Quarterly, viII, 1 (January 1971): 71-78. 18 An exception to this generalizationmay be found in Hart, op. cit., p. 181. Nigel Walker's very useful discussion of the retributive theory also is conducted without emphasis on the concept of desert; see Walker, op. cit., supra, fn 3.
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of deserved punishments on any theory of punishment is coextensive with the class of punishments that the theory justifies, because the concept of deserved punishment is identical with the concept of justified punishment. With such a concept of desert, deservedpunishment is no longer unique to the theory of retributive punishment. But this is not a plausible concept of desert. On a more plausible view, such as that sketched above, nonretributivists are likely to argue that not only are the concepts of deserved punishment and of justified punishment nonidentical, there is a (small) class of persons who deserve to be punished but for whom punishment is unjustified,and perhaps even a (small) class of persons for whom punishment is justified but not because they deserve it. The retributivist, of course, will not allow such inexact overlap; and this is why he is not likely to favor this alternative. Yet there is another possibility here. Suppose we were to say that a person deserves to be punished if and only if he brought the punishment on himself by knowingly and intentionally violating a positive law that justly protects the rights of others.19 This notion of desert goes beyond the narrow idea of liability to lawful punishment (A2) as well as beyond the principle of responsibility (R1). It is a modified retributive idea to the extent that it incorporates R1, but goes beyond this principle though not in the direction of R2 or R3. Moreover,since the appeal to just laws which it adds to R1-R3 is not a retributive notion, it could be accepted by a retributivist as expressing an idea of desert suitable to his theory but not unique to it; and thus by adopting this idea he need not criticize the adequacy of R1-R3 as a retributive model. Thus, we have several different ways to cope with the omission of desert from our model of the retributive theory, as well as three different ideas of desert to choose among. I shall not try to decide which is the best way to solve the problem of incorporatingdesert into the model. I do assume that our picture of retributivism is unsatisfactoryuntil we solve this problem. As soon as we have settled the place of desert in the retributive theory, the theory seems to be open to one or the other of two familiar and powerful criticisms.One is that no one ever deserves to be punished, or deserves the punishment he gets. The other is that, although it is true that sometimes persons deserve to be punished, and perhaps even deserve the punishment they get, no
19 CompareW. C. Kneale, "The Responsibility of Criminals"(1967), reprinted in Acton, ed., op. cit., p. 184. Kneale, however, seems to think that this notion of desert is wholly nonretributive.
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one knows or could know for certain what that deserved punishment is and on what grounds it is deserved. In either case, the point of the criticism is to undermine any confidence we might have in punishing someone by appeal to what he deserves. How the retributivist responds to these objections will depend in part on how he has incorporated desert into his theory, and in part on what concept of desert he uses. Because it is possible to have a notion of desert, as we have seen, which is not unique to retributivism, the criticism we are now considering can be understood as an attack upon any theory of punishment, and not only on the account of deserved punishment peculiar to the retributivist. If, however, these criticisms are to be directed exclusively to the retributive theory and its notions of desert, then it is likely that part of what is under attack is also the retributivist's principle for constructing the penalty schedule (R2). For the retributivist must attempt to ground his judgments about the kind and severity of punishments offenders deserve by appeal to his principle of proportionality (R2). Thus, the retributivist's reply to the skeptical challenge above will ultimately involve a defense not only of desert but of R2 as well.
III
Traditionally, the greatest objection to the retributivist is that his principle of proportionality, R2, results in a dilemma. Either R2 is interpreted according to lex talionis, in which case either it is taken strictly with absurd results (e.g., should we punish a rapist by raping him? his wife or daughter?) or it is taken loosely or found to be inapplicable altogether (e.g., how can we punish a kidnapper according to lex talionis, if he has no children of his own?). Or R2 is not interpreted according to lex talionis at all, in which case either it yields arbitrary results or it goes off into wholly nonretributive ideas of how punishments are to be deemed proportional to crimes. How do retributivists now meet this challenge? There are only two recent attempts worth examining, so far as I know, and neither is satisfactory.20 One is by Claudia Card, in which she in effect interprets R2 in terms of what she calls "The Penalty Principle." This principle states in part that a punishment is retributively just only if it imposes on an offender a deprivation of rights to the extent of his "evident culpable failure to abide by the law" and-what she calls the "Full Measure Principle"-"the hardship to which he is thus to 20The rest of this sectionis a revisionof sectionvi of my "Concessions Retribution in Punishment,"op. cit., supra, fn 9.
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exposed does not exceed the worst that anyone could reasonably expect to suffer from the similar conduct of another if such conduct were to become general in the community." 21 The Penalty Principle incorporates the idea that wrongdoing is a function of two independent components: a factor internal to the offender, namely mens rea, malicious intentions, motives, or reasons for inflicting (or attempting to inflict) culpable injury on others; and a factor external to the offender, namely the harm caused the victim(s). We could, perhaps, imagine a retributivism that built its principle of proportionality around only one of these ideas, but that is not Card's view, and it is not the way most retributivists (including Hart) would interpret R2. The chief difficulties arise, as Card herself recognizes, over interpreting the "Full Measure Principle." "The Full Measure consists in a deprivation of rights exposing the offender to a hardship comparable in severity to the worst that anyone could reasonably be expected to suffer from the similar conduct of another if such conduct were to become general in the community" (27). The purpose of this principle is to explicate the intuitively sound requirement of retributivism, that a just punishment consists in "a suspension or withdrawal of rights of the offender corresponding to his failure to respect such rights of others" (32). To apply this principle and identify a punishment as just or deserved for a given crime or for an offender who is guilty of that crime, we must have some way of measuring the hardship or loss of rights suffered by the victim. Consider the crime of rape. How much hardship would this crime involve were it to become general in the community? What would we undertake to examine in order to assess and measure that hardship? Would it be the victim's feelings, such as how much the assault hurt, or the victim's reactions, such as the subsequent self-imposed restrictions on freedom of movement, or the victim's judgments, such as the loss of self-esteem? Would the hardship take into account the victim's status, such as whether she was a child, a prostitute, a spouse, or other effects upon the victim, such as her prior virginity or subsequent pregnancy? Which are to be excluded as irrelevant hardships, and how are the re21 "Retributive Penal Liability," American Philosophical Quarterly Monographs, No. 7 (1973), pp. 22/3. Parenthetical page references to Card will be to this monograph. Her Penalty Principle as she gives it in its complete form contains a third clause which introduces the component of deterrence. For an argument (though not with reference to Card) that it is impossible to construct a penalty scale built consistently on some combination of retributive and deterrent factors, see Alan Wertheimer, "Should Punishment Fit the Crime? Social Theory and Practice, iii, 4 (Fall 1975): 403-423.
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mainder to be integrated?Card does not tell us, and so we do not know what would be the appropriatedegree or kind of sufferingto legislate for the generality of rapists "comparableto the worst that anyone could reasonably be expected to suffer" were rape to become general in the community. I doubt, in fact, whether we have any clear idea of how to take even the first steps to solve this problem. The other alternative is offered by Andrew von Hirsch, in what he calls "the principle of commensuratedeserts."According to this principle, "Severityof punishment should be commensuratewith depends both on harm the seriousnessof the wrong ... Seriousness done (or risked) by the act, and on the degree of the actor's culpability" (66, 69). This principle is virtually a paraphraseof R2, and so leads directly to the familiar problems. (a) Although there may be little difficulty in making uniform judgments of ordinal culpability (e.g., his killing was more culpable than her killing, because she was provoked and he wasn't) or of ordinal harmfulness (e.g., her theft was more harmful than his, because she stole their car and he stole their typewriter),there is no unique nonarbitraryway to combine these judgments into one judgment of ordinal seriousness.(b) Even if that problem is solved, and even if a plausible penalty scale can be constructedin terms of ordinal severity (e.g., his punishment is twice as severe as hers, because he served two years behind bars and she served only one), there is no unique non-arbitraryway to identify the severity of the appropriate punishment, given only the seriousnessof the crime, as R2 requires. How does von Hirsch respond to these difficulties? He shows that he is aware of these problems, but the solution he offers is inadequate. He relies on the Sellin-Wolfgang techbut, unforniques for measuring degrees of gravity of offenses,22 had no interest in tunately, ignores the fact that these scientists anything approximating his principle of commensurate deserts. His idea, crucial to R2 and to standard versions of retributivism, that we can make sense of fitting punishments to crimes and criminals by analyzing the gravity of the criminal act into two components, agent culpability and victim suffering, is not only not investigated by Sellingand Wolfgang; by implication they repudiate it as unscientificand irrelevant. Sellin and Wolfgang undertake to rank-ordercriminal offenses
22Thorsten Sellin and Marvin E. Wolfgang, The Measurement of Delinquency (New York: John Wiley, 1964). Parenthetical page references to Sellin and Wolfgang are to this book.
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according to the degree of severity, and they do this by means of a scale with twenty-six equal intervals on which they plot judgments from a large sample of persons reflecting their assessment of amount and relative degree of harm done by a wide range of crimes. At one end of their scale is the least serious crime (larceny in the amount of $1), and at the other end the most serious crime (murder) (289). Armed robbery of $5 turns out to be five times as serious as the least serious crime; forcible rape turns out to be two and a half times as serious as armed robbery of $5. Their rating scale has various implausible consequences, owing in part to deliberate simplifications. For example, they conclude that the harm caused in a crime that costs the victim his one good eye is equivalent in seriousness to the harm that results in a crushed rib without accompanying lung puncture. Their reason is that neither injury can be treated merely with first aid, neither results in death of the victim, and both require hospitalization (191). Their scales also provide no way to discriminate among different forms of criminal homicide (e.g., murder vs. manslaughter, willful murder vs felony murder) because their theory does not include any way to identify and factor in separately aggravating and mitigating circumstances once it has been determined that the crime results in the victim's death.28 These and other results can all be viewed as consequences of their decision at the start to collapse the idea of an offense's seriousness into the harm it causes, thereby leaving out of account any role for the culpability factor. Their reason for this omission is that the offender's culpability is a property not of the offender's "act" but of the offender (248, 252, 258, 306), something which their theory is not intended to measure and which they imply is beyond scientific assessment. To the extent, therefore, that von Hirsch relies only on the Sellin-Wolfgang methods to measure gravity of offenses, to that extent he neglects a factor that is part of R2 and is usually thought to be one of the morally attractive features of the retributivist's penalty schedule. Independently of his reliance on the theory of Sellin-Wolfgang, von Hirsch allots only passing attention to the culpability factor, its identification, and its incorporation into his proposed penalty schedule. The only culpability factor he seems willing to measure and incorporate into the penalty scale is the number and seriousness of the offender's prior convictions. Other
28Von Hirsch (139) indicates that his preferred penalty scale would be able to make such discriminations, and he indicates what they are. But since he does not rely on Sellin-Wolfgang to do so, and could not, he is left with incoherent empirical underpinnings for his principle of commensuratedeserts.
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factors that might mitigate culpability are no more than mentioned in passing.2'Whateverelse may be said, therefore,about his principle of commensurate deserts, it hardly is entitled to be viewed as a retributively adequate account of how to determine an offender's"justdeserts." As for the penalty schedule von Hirsch constructsin accordance with his principle (132-140), it does appear to be consistent with that principle. But it cannot be claimed to be implied by it. It would be an easy task to constructany of a dozen equally plausible penalty schedules simply by varying minimum or maximum terms of incarceration by slight amounts; each would be equally consistent with the "principleof commensuratedeserts."The arbitrariness of the proposed schedule, therefore, is all too plain and further undercuts any claim that penalties derived from the schedule 25 are an offender's"justdeserts." I conclude that, although justice does require us to adopt some principle of proportionality, this principle seems not to be very well expressed by R2 or by the recent variants on it discussed above. The new retributivismthus fails at precisely the same point where the old retributivismdid; it has yet to solve the dilemma of making the punishmentfit the crime.
IV
This brings us to Rs, the principle of requital and the retributive justificationof punishment. Many have followed Hart's lead in defending "retributionin distribution" (R1), distinguishing this from "retributionin general justifying aim" (R3), and then rejecting the latter in favor of the view that the chief aim and justification of a systemof punishment is the reduction of crime. Von Hirsch, for example, in effect accepts both R1 and R2; but he rejects R8 because he mentions as a virtual truism that "criminalsshould be punished so that there will be less crime" (37: cf. 47). I cannot think of any retributivist today who defends R3; how could it be defended? It is, as Hart observed, "a mysterious piece of moral
2460, 84-88. He mentions as mitigating factors altruistic motives (81) and provocations(100). 25 To cite but one example, von Hirsch does not consider the possibility that the death penalty might be the "just deserts" for some crimes of murder, such as serial or multiple murders. He gives no argument that what he calls "the presumptive penalty" for murder should not be death, but only prison terms of more than five years (p. 139 note). This is one of the more vivid displays of his welcome bias in favor of penalties of lesser severity than those to be found under current systems of criminal justice. This leniency cannot be attributed to features of his theory, including the principle of commensurate deserts,however.
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alchemy, in which the combination of the two evils of moral wickedness and suffering are transmuted into good" (234/5). Yet, if I am right (in section i), R3 is the most distinctive element in the retributive theory; it is the only thesis in the model that a nonretributivist must reject. More generally, one might say that the most interesting idea about punishment that a retributivist could hold is that the "general justifying aim" of punishment is nonconsequentialist and therefore nonutilitarian, that it is deontological, to be found within the theory of Right and not within the theory of Good. Are there, perhaps, alternatives to R3 that might accomplish this in a satisfactory way? Here the retributivist encounters another familiar dilemma. Either he appeals to something else-some good end-that is accomplished by the practice of punishment, in which case he is open to the criticism that he has a nonretributivist, consequentialist justification for the practice of punishment. Or his justification does not appeal to something else, in which case it is open to the criticism that it is circular and futile. The first horn of the dilemma is illustrated when retributivists try to justify the practice of punishment by appeal to the socially cathartic, purgative, expiatory effect that the practice of punishment is alleged to have. The same difficulty attaches to the currently more popular variant that the system of punishment is justified by its authoritative role in denouncing as wrong the harmful conduct made liable to punishment-a dubious version, perhaps, of a retributive justifying general aim, and not in need of criticism here.20 The more interesting ways of avoiding the above dilemma are to be found in attempts to seize the second horn. One such view goes like this. Let us assume that we live in a just society. Even so, there might be some among us who at some point will voluntarily break the law and cause innocent persons harm. Why would it be reasonable on these assumptions to define offenses and set up punishments for their commission? Because to do anything less would be unfair to the law-abiding. By hypothesis, in a just society everyone has a right to whatever the system distributes to him under its rules, and no one has the right to violate the rules. Consequently, every violation of the rights of others, every crime, must be seen as an unjust act, in which the offender unfairly gains at the expense of his victims. He unfairly gains property in crimes
26 For a thorough discussion, see Walker, "Punishing, Denouncing or Reducing Crime?" forthcoming in the Festshrift for Glanville Williams, edited by Peter Glazebrooke.I am grateful to ProfessorWalker for providing me with a prepublication copy of this essay. See also Hart, op. cit., p. 235.
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of theft, and he gains the unfair exercise of his freedom in crimes of personal violence done for no further motive, such as murder and rape. Justice requires that these unfair advantages,once they are taken, must be given up, or paid for, or both, as well as prevented or discouraged,if possible, from the start. The only sensible way to do this is to create a public system of punishment. Versions of this view have been elaboratedby several different philosophers It has been attacked on the ground that in the liberal tradition.27 it relies on a false view of the origin and nature of criminal conduct in our society, and thus fails completely to be of any use in the justificationof our system of criminal justice and punishment. What the retributivist has done, on this criticism, is to invent a perfectly sound argument to justify the practice of punishment on principles of justice, except that we cannot appeal to this justification, since our practice of punishment does not take place in a just society.28 This is not the place to determine the truth of this criticism, though I confess I am much in sympathywith it. What is important to note is that justifying punishment in this way relies upon a general theory of social justice, rather than upon any narrower principle of retributive justice such as R3. So, although it can be claimed that this argument does base its justification of punishment upon principles of justice, this is cold comfort for those who want to justify it on nothing more than retributive justice. Another kind of attempt to circumvent the dilemma of justifiwith the law cation posed earlier is the view that "non-compliance . . . by itself justifies punishment,"29 or, as Herbert Fingarette80 has recently put it (to him we owe the first thorough-goinganalysis of the idea, "those who disobey requirementsmust be made to suffer"(513). On this view, anyone who asks, Why should we have the practice of punishing breaches of the law? is in effect told,
27 Hart, op. cit., pp. 21-24, 180-183; Herbert Morris,"Personsand Punishment" (1968), reprinted in Feinberg and Gross, eds., op. cit., pp. 572-585; Rawls, op. cit., pp. 235-243. 28Jeffrie G. Murphy, "Marxism and Retribution," Philosophy and Public Affairs, ii, 3 (Spring 1973): 217-243, pp. 233, 237-242. Von Hirsch (144-149) can be read as an attempt at a bourgeois reply to Murphy's Marxist critique. 29 Sidney Gendin, "A Plausible Theory of Retribution," Journal of Value Inquiry, v, I (Winter 1970): 1-16, p. 6. This is not, however, a central thesis to retributivism as Gendin explains it; for that role he identifies doctrines akin to those I have designated as the principle of responsibility (R1) and the princple of proportionality(R.). 30"Punishment and Suffering," Proceedings of the American Philosophical Association, L, 6 (August 1977): 499-525. Parenthetical page references to Fingarette are to this address.
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You wouldn't ask that if you understood the logic of having laws in the firstplace. It is part of the essenceof a law that its violation incurs a punitive response; "in accepting law we necessarilyaccept retributive punishment" (515).31Against this view, I would offer two objections. First, it is simply false to say that once we have rules we must have a policy of punishing those who violate them. If you won't play chess with me by scrupulouslyadhering to the rules, it hardly follows that I must punish you or threaten to punish you. I can simply refuse to play any further; or I can retaliate by breaking some rules myself; or I can continue to play but under protest. Punishment does not stand to the violation of a rule as being an effect does to having a cause. The difference between laws and other rules does not lie in the fact that laws necessarily involve the punishment of violations. There is no necessity that all or any unlawful conduct be punished. We could content ourselves with prohibiting violations and then visiting upon the violators, if any, accusationsof violation, denunciation, blame, remonstrances, other signs of disapproval,and so forth, without ever going on to inflict punishment. We could inform violators of the consequences we predict for them as a result of our disapproval, including their ,sense of shame and guilt, loss of self-esteem, and the like. Of course, if we care about the harm done when the law is broken, and believe that it can be prevented by suitable prohibitions and threatsof punishment, then we will have to be as good as our word when lawbreakersfall into our hands lest our initial prohibitions and threats be taken less seriously than we intended. However, this is not a point the retributivist is entitled to make, because it is an appeal to crime prevention as the justification of threatened punishment. Second, Fingarette makes much of the way his conception of retributive punishment is completely "independentof moral justification, even moral justification of law itself" (503; see also 501, 512-514). This has thoroughly novel consequences. Either it excuses the retributivistfrom the need to justify the practice of punishment, or it requires him to do so by appeal to something other than principles of justice. Few retributivists,I should think, could accept either alternative.Surely, one of the most interesting things about the retributivist's theory of punishment, as R8 (however
31Mdst of Fingarette's argument rests on his conception of "law as power" (505), a notion that I find much less helpful than he does in understanding the role of law in private and public life.
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inadequately)suggests,is that the retributivist wants to justify the practice of punishment and tries to do so by appeal to principles of justice. I do not see why this must be a futile effort, nor why shifting our attention to the need to justify a coercive legal order (as Fingarette does) obviates the need to justify the practice of punishment as a legitimate and necessaryelement of coercion. So, as with R2, I conclude here with R3 and the problem of providing a general retributive justification for punishment that is both plausible and applicable: It has yet to be done.
I v
Virtually everythingof philosophical interest regardingany theory of punishment can be brought out by considering two questions: How completely-does the theory account for our ideas of justice in punishment? How much of a full-scale theory of punishment does this theory yield? I shall not try to recast my discussion of the retributive theory in terms of answersto these questions, but a few concluding comments in this vein are in order. If we had conveniently at hand a list of the principles of justice relevant to the theory and practice of punishment, I doubt that many would be retributively based. For example, the idea that justice requires the equal treatmentof offendersguilty of the same offense is at best a corollary for the retributivist of his principle of proportionality (R2). Retributivism has no direct interest in equal treatment otherwise. If it is thought to be a principle of justice not to punish persons in ways that will do them more harm than good, then retributivismimplicitly repudiates this principle outright. If it is thought that offendershave rights that not even the commission of the gravest crime forfeits, retributivism cannot explain this and might deny it. The same holds for considerations that would minimize coercive interventions and restraints in the punishment of offenders;they are of no interest to the retributivist. As for the theory of punishment and its systematic practice, retributivismis silent on much that is important. Once lex talionis is set aside, retributivismcannot tell us anything about the appropriatenessof differentmodalities of punishment, e.g., why a system of punishment should be built around incarcerationrather than, say, corporalpunishments.Many of the familiar featuresof punishments involve deprivation or suffering, and that they should be proportionalto the gravity of the offense, can be explained as well or better by nonretributivetheories. If I am right, then, retributivism falls short of completeness
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when judged by referenceto the two main considerationsby which any theory of punishment must be judged. Are there, however, some featuresof the theory of punishment or of the role of justice in punishment that only retributivismcan provide, or that it can best explain? Even here I am doubtful; if there are such distinctive contributions to the nature of punishment that retributivism provides, this will have to be shown by means of argumentsas yet unformulated.
HUGO ADAM BEDAU
Tufts University
RETRIBUTIVISM
B
AND THE CONCEPT OF PUNISHMENT S
EDAU observes,quite correctlyI think, that there are prob-
lems with the definition of punishment that must be faced before an assessment of retributivism, viewed as a theory that justifies punishment, can be undertaken. In my paper I endeavor to explore some difficulties with Bedau's way of handling these definitional problems, and to suggest that the concept of punishment, itself, may be more retributive in character than many philosophical discussions of punishment acknowledge. Bedau provides two propositions that deal with the nature of punishment. A1 asserts: "Something imposed on a person counts as a punishment only if it is a harm or deprivation, or causes suffering or pain to that person." A2 asserts: "A person is liable and eligible for punishment if and only if he is guilty of an offense." I do not think that these provide a clear or correct account of what punishment is. Al cannot be sufficient, because many things may be harms, deprivations, etc. and yet not be punishments. At least three kinds of cases are: confining a person with an infectious disease to a hospital; requiring someone to pay damages for breach of contract; and killing a bank guard in order to rob a bank. Nor can A2 provide the ground for distinguishing these kinds of cases from cases of punishment. One problem with A2 is with its use of the idea of an offense. How are we to tell whether or not something is an offense? The most natural account of an offense* Abstract of a paper to be presented in an APA symposium on the New Re. tributivism, December 27, 1978, commenting on a paper by Hugo Adam Bedau; see this JOURNAL, this issue, 601-620.
0022-362X/78/7511/0620$0O.50
) 1978 The Journal of Philosophy, Inc.

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THE JOURNALOF PHILOSOPHY

AND THE THEORY OF PUNISHMENTS

HE idea that retribution, along with prevention of crime

and reformationof convicted criminals,plays a role in the

THE JOURNAL OF PHILOSOPHY

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suffering for moralevil voluntarily done is itself just or morally

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S. Champlin, "Punishment without Offense," American Philosophical

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THE NEW RETRIBUTIVISM

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THE NEW RETRIBUTIVISM

THE JOURNAL OF PHILOSOPHY

THE NEW RETRIBUTIVISM

THE JOURNAL OF PHILOSOPHY

THE NEW RETRIBUTIVISM

THE JOURNAL OF PHILOSOPHY

THE NEW RETRIBUTIVISM

THE JOURNAL OF PHILOSOPHY

THE NEW RETRIBUTIVISM

THE JOURNAL OF PHILOSOPHY

THE NEW RETRIBUTIVISM

THE JOURNAL OF PHILOSOPHY

AND THE CONCEPT OF PUNISHMENT S

EDAU observes,quite correctlyI think, that there are prob-

) 1978 The Journal of Philosophy, Inc.

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