13.2 Retributivist approaches

In spite of the “kinder and gentler” approach of correction theory to punishment, Kant and other fans of deontological ethics, might raise the following questions about it:

  • Does anyone have the right to tell other people how to live their own lives?
  • Isn’t there something basically disrespectful about coercive attitude adjustment of the kind given out in prison?
  • What about justice – isn’t punishment the kind of thing that some people deserve because of what they have done and not simply a means of making the world a better place than it was in the past?

But what is justice? In the simplest of terms, justice involves individuals getting what they deserve or being treated fairly. In some contexts this would require not discriminating against people by giving them a lower pay or less opportunity for no good reason – in such cases individuals do not get the benefits or opportunities that they deserve. These are cases where “distributive justice” is not being done in the sense that some people are unfairly excluded from equal consideration in society’s distribution of benefits and opportunities.

There is another way, however, in which people may (or may not) get what they deserve. When someone intentionally and knowingly wrongs someone else, say by mugging them at gun-point, the person who has been wronged has not gotten what they deserve, respectful treatment by the person who has wronged them. Further, if the person who did the mugging fails to be punished in some way even if they are caught by the cops, it may seem like they haven’t gotten what they deserve – punishment. Questions of this kind, about giving people what they deserve when they have knowingly and willingly wronged other people are sometimes known as questions of retributive justice since they have to do with retribution or pay-back for wrongs done.

One thing to notice about retributive justice is that it is essentially backward looking – figuring out what someone deserves in retribution focuses only on what they have already done. This approach to punishment is very different from that of the utilitarians who were above all else concerned with the consequences – in the future – of punishment, the good that could come out of intentionally harming someone in punitive custody.

There are three basic approaches to retributivism: simple retributivism, social contract theory and Kantian retributivism. We will consider them one at a time.

Simple retributivism

Simple retributivism is best captured in the famous biblical slogan, “An eye for an eye and a tooth for a tooth.” The idea behind this approach to justifying punishment is to appeal to the notion of fair treatment. People should be treated the same way that they treat others. In spite of the appeal and the popularity of this approach to justifying punishment, however, it fails to provide any guidance whatsoever. First of all, taken literally it leads to nonsensical results – how many people actually go around poking out others’ eyes or stealing their teeth? Well you might respond that this is not intended to be taken literally, but instead expresses a general principle – you should be payed back “in kind” for what you do that harms others. But then we may ask whether you can always be paid back in kind. For example, if you are a tax evader how could you be paid back in kind? Or if you speed excessively? Or shoot someone’s dog, when you yourself are not a dog owner, etc. Second, and more seriously, it does no more than simply express a desire for justice without any explanation at all of why punishment is justified. Why is it important to pay people back in kind for what they do? It may seem obvious enough, but is that any kind of basis for a justifiable and rational approach to punishment, or does it just beg the question concerning the justification of punishment?

Social contract theory

One attempt to make up for the failure of simple retributivism to address the problem of justifying retribution is suggested by Social Contract Theory. We looked as Social Contract Theory earlier as an attempt to provide a foundation for ethical and social rules in general. Here it is more relevant as a theory of the origins and justification of political authority. It tries to root the authority and the legitimacy of political institutions in a real or fictitious agreement between citizens living under state authority. The relevant idea here is that society can be looked at as a kind of game – there are certain rules of the game of living in and otherwise participating in society. Once these rules are established we would all be granted certain “rights, and privileges” while being expected to take on certain “responsibilities.” If someone were to violate these established rules, then they would be required to sit out of the game for a while and if this violation of the rules was severe enough they completely lose the right to play the social game at all. We won’t have too much to say about the social contract approach here, except to point out a few problems that render it unworkable as a theory of the justification of punishment.

The first problem here concerns the rules of the game that we are supposed to have violated when we commit a crime. What exactly are these rules and why are they binding on each individual? Are they the laws that happen to be on the books at any particular moment? But these are subject to modification – new laws are constantly being created and old laws are constantly being revoked. If the right to play the social game is based on the laws that happen to be around at any given moment and these laws change it seems like our basic rights can change depending on the legislative mood of a society. That seems to make rights a lot less solid than the usual talk about rights presumes.

Second, and more importantly, if punishment is owed to someone for breaking the rules, then this seems to get things backwards – do I really deserve punishment because I broke the rules, or are the rules what they are because that somehow reflects what our society deems to be worth protecting? What is the point of these rules? And finally, social contract theory makes rights relative to a set of social norms and claims that they are not absolute. But doesn’t that undermine the very concept of rights? After all, if I insist that my rights are being violated, as did American blacks during the civil rights era, I am appealing to a concept that transcends the particular rules of society at the time. I am appealing to something universal that any particular society cannot take away, even if that society can fail to respect it. Thus if rights are the kind of things that particular societies can take away, they they are simply not rights.

Kantian retributivism

_This discussion_ of the absolute character of rights seems to leave us in a bind. If rights are absolute then how on earth can we ever be justified in punishing anyone? After all, punishment involves the deliberate infliction of harm on someone and that patently seems to be a violation of rights. We seem to have a choice, either respect everyone’s rights or punish some people. One philosopher, our old friend Kant, claims that this is a false dichotomy, that is, he tries to show how, if we properly understand the concept of responsibility, we will see that in those cases where people are responsible for treating others in a criminal manner, they both deserve punishment and continue to have rights. In fact, as paradoxical as it may sound, in Kant’s view criminals are to be punished because they have rights and it would be a violation of the criminal’s rights not to be punished. Seems strange perhaps. Let’s see how it works.

Since punishment is, on the view we are currently considering, all about retributive justice, it is crucial that punishment only be given out to people who have actually done what they are accused of doing. Furthermore, if such people are to be punished they must also have been fully responsible for their actions. Thus, if someone gets killed accidentally, as a result of my car hitting them in circumstances that I had no control over (like, if someone trips and falls into the street as I happen to be passing) then the result is certainly tragic, but no one is truly responsible for the death of the victim, no wrong has been done. On the other hand if I deliberately run someone down with intent to kill them, and I succeed in doing so, then a wrong has been done and the death of the victim is something I am responsible for. In the real world it sometimes difficult to assess the exact degree of responsibility involved in cases where somebody gets hurt. This is why in criminal courts there are different punishments corresponding to different degrees of responsibility, in cases involving the death of another these range from first degree murder to negligent homicide and so on down to no responsibility at all in cases of accidental death involving no wrong. In spite of this practical difficulty in actually determining the degree of responsibility the theoretical point here is clear – to wrong someone you’ve got to know what you are doing and do it intentionally.

So far so good. But why does someone who intentionally harms another, who wrongs them, deserve punishment? According to Kant we all owe respect to others no matter what and this seems plainly incompatible with the claim that some people deserve to be locked up or even executed. The key to Kant’s justification of punishment lies in his conception of autonomy. When we treat others with respect this means allowing them to make up their own minds about what is valuable to them, in the full expectation, of course, that they will also see that others deserve respect as well. There is a risk, however, in trusting someone like this, in allowing them to decide for themselves how they should behave. For example, someone may come up with the idea that you are not worthy of respect if you have something they want. The person who disrespects you after having come to this conclusion is failing to see that everyone is equally worthy of respect and that no one should be treated like a means to an end. Instead they are treating you as if you had merely instrumental value and so were not worthy of respect. In Kant’s view we are all free to make decisions like this, but when we act on the idea that others are not worthy of our respect we are also announcing something to the world – we are basically saying that in our view people are not worthy of respect, that they don’t deserve treatment as ends in themselves but only as means to our ends. Let’s look at an example.

Let’s say that I decide to murder someone I do not like and so I deliberately plan a way to kill them and when I get the opportunity, I carry out the murder. If I actually do this I am assuming that it is OK to murder someone who I don’t like. But notice what this means – if I murder someone under the belief that it’s OK for me to do so, am I not also assuming a more general point, that human life doesn’t have the kind of value that would prevent me from ending someone’s life when it was in my interests? Kant’s answer is yes, that I am indeed assuming this simply by carrying out a deliberate and pre-planned murder. My action speaks louder than words, it announces to the rest of the world that I do not find human life valuable. Since this was my free and autonomous decision it follows that the only way for others to respect me is to treat me in the same way that I have decided that others should be treated. In the case of murder, since it is possible for me to murder someone only because I do not value human life, the only way for others to respect me, to act on my wishes would be to kill me as well. So, paradoxically, it is an act of respect to execute a murderer in Kant’s view.

This may sound a bit strange, but Kant claims that if justice is giving people what they deserve and people deserve treatment according to the standards they themselves freely set, then it seems to follow that someone whose standards allow for the deliberate termination of others’ lives can only be respected by being treated as they see fit to treat others. This idea is not only limited to cases of complete disrespect for others lives, but in cases of partial disrespect for others where someone deliberately harms others without actually killing them. In these cases punishment of a lesser degree, whatever fits with the degree of disrespect the criminal’s actions demonstrate, is appropriate.

There are a few points to bear emphasizing here:

  1. Punishment is only acceptable when the person being punished is really guilty of willingly and knowingly harming another.
  2. Punishment only serves the interests of justice, it is not legitimate as a way of maintaining order in society, or of correcting the offender coercively, by forcing them to act more responsibly. This is simply because these would both violate the autonomy of the person being punished.
  3. Punishment must be proportional to the degree of disrespect exhibited in the act that is being punished.

We have seen that there are two major approaches to justifying punishment, the utilitarian and the retributivist approaches. Each of these approaches assumes something very different about our responsibility for our actions. Utilitarians assume that we are not really responsible for what we do and so have to be manipulated into behaving as we should. That is, we need to be scared into submission (deterrence theory), coercively made to want to behave (correction theory) or simply locked up because we cannot be convinced to behave (isolation theory). On the other hand, concern for retributive justice, a common thread in all of the retributivist theories, is based on the claim that we are really responsible for what we do in some cases and it is because of this that we deserve punishment. This is especially clear in Kantian retributivism – it is because we are responsible adults making up our own minds about how others are to be treated that some of us deserve punishment. The difficult question I’d like to ask is this: how on earth can we be, at one and the same time, both responsible for our actions and not responsible for our actions? It seems impossible. But, aren’t our society’s policies concerning crime and punishment somehow based on both of the approaches we have been considering here? That is, we have departments of correction and put a lot of emphasis on the deterrent value of punishment, and yet we also insist loudly on the responsibility of people for their actions. But there is an inherent contradiction embedded in this approach, isn’t there? How on earth can we have both?