I did some research over the weekend, not having really thought about justifications for retributivism before -- a terrible confession for a sometime moral philosopher, I know -- and I think I can say that there is a plausible standard account that answers the most obvious objections to the doctrine in the classic formulations by Kant and Hegel. (Btw there is a paper by, i think, Jeff Murphie that argues that Marx is a retributivist -- have it, but didn't review it for this.) K & H have free-will based versions of the doctrine that end up holding that punishment is a "right" of the perpetrator, something which it would bea s wrong to deny him as it would be to steal his property. Now, whatever one thinks of the existence of free will, it would nice if one's justification of punishment didn't depend on controversial metaphysics, and there's something odd about saying that punishment is a right, even if it is right to punish.
OK, in the version of retributivism due to Herbert Morris, On Guilt and Innocence, and George Sher, Desert, retribution is a matter of distributive justice. It is a restoration of an unfair redistribution of the balance of benefits and burdens imposed by the perpetrator on the victim. Basically, the perp unfairly benefits from the victim's restraint in not violating the rules and his own lack of restraint in taking it on himself to violate them. He asserts a share of freedom greater than that to which he is entitled, the freedom not to follow the rules that bind others. Imposing proportional harm on him as a punishment restores the fair balance of burdens (required rule-following) and benefits (including the freedom to act within the rules) that the perp has disrupted.
This account does not depend on any metaphysics of the will, nor does it assert that punishment is a right (as opposed to saying that it is right. Like all retributivist accounts, it explauns why we want to punish only the guilty, and it also explains why proportionality is important -- because if we punish more than we should, we act unjustly in imposing too much of a burden on the perp.
The main weakness that I see is that it has difficulty in dealing with the guilty one who asks no quarter and gives none, who does not expect others to live within the rules, but welcomes their aggression against him -- the total 'anarchist." (in the sense that the Threepenny Opera means in the Ballad of Sexual Slavery, MacHeath is "der grossete Anarchist" who doesn't believe in the Bible or Criminal Code). But maybe it is too much too expect an account of retributivism to cover all cases; maybe we don't punish the "anarchist" as a matter of justice, but for consequentialist reasons, to maintain the order that allows us to punish the civilized violators in a retributive way, although not mainly for that purpose.
To answer Bill's question, Sher suggests, quoting Locke, that we want retibution carried out by disinterested third persons in the form of the state precisely because the victim or his family are likely to go overboard, punishing excessively and therefore unjustly. Of course in the real world of American democracy, the laws seems unjustly punitive. I don't know how it is is Australia.
jks
Bill> I can relate to that, even if revenge isn't something I would advocate or support. What I don't get is why people who have not been personally wronged are entitled to take vengeance? Sure, we can all understand why a victim might feel hatred and a desire for bloody revenge, but I can't help thinking its a bit sick for people who don't even know the victims of crime start start demanding blood.
Bill Bartlett Bracknell Tas ___________________________________ http://mailman.lbo-talk.org/mailman/listinfo/lbo-talk
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