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Unjustified Retribution

Published online by Cambridge University Press:  04 July 2014

Dudley Knowles
Dudley Knowles
Affiliation:
Senior Lecturer in Philosophy, University of Glasgow. An earlier version of this paper was delivered to the Fulbright Colloquium on Penal Theory at the University of Stirling in September 1992, in response to an earlier version of Michael S. Moore's paper, “Justifying Retributivism”. My comments have benefitted from discussions with participants at that colloquium and with Professor Moore in particular.
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In a number of related papers Michael S. Moore has advanced a powerful theory of retributive punishment. The position as stated is simple: “retributivism is the view that we ought to punish offenders because and only because they deserve to be punished”. Desert is a necessary and sufficient condition for just punishment. However simple and straightforward the view, it still needs to be defended and Moore has been energetic in defending his corner against traditional objections and against replies that his account has attracted since first publication. His latest effort invites readers to pursue these problems in still greater depth. This is an invitation I am happy to accept. First I want to reexamine the charge that there is circularity in his account and second, I want to look more closely at the intuitions which ground his acceptance of the principle of desert.

One worrying thought, for Moore, is that he may be begging the question. His argument proceeds by inviting us to consider a range of cases. In “The Moral Worth of Retribution” the focus is on a couple of savage murders. In “Justifying Retributivism” we are asked to practice Kant's thought-experiment: how should we deal with the last murderer before we leave the island; and ponder the fate of Dostoyevsky's nobleman who set his dogs to tear a child to pieces.

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Israel Law Review , Volume 27 , Issue 1-2 , Winter–Spring 1993, pp. 50 - 58
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1993

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References

1 Michael S. Moore, “Justifying Retributivism”, in this issue, at p. 15 (hereinafter: JR); “The Moral Worth of Retribution”, in Schoeman, F., ed., Character, Responsibility and the Emotions, (Cambridge University Press, 1987) 179–219Google Scholar, reprinted in Feinberg, Joel and Gross, Hyman, eds., Philosophy of Law (Wadsworth, 4th ed., 1991) 685–707.Google Scholar All references to this version, hereinafter MW. Other relevant books and papers are cited by Moore in JR.

2 Moore, JR, p. 15.

3 MacCormick, Neil, Legal Reasoning and Legal Theory, (Oxford, Clarendon Press, 1978) chaps. 1 and 2.Google Scholar

4 Moore, JR, p. 16, citing J. L. Mackie, “Retributivism: A Test Case for Ethical Objectivity”, in Joel Feinberg and Hyman Gross, eds., supra n. 1, at 677–684.

5 I use the word ‘empty’ here to remind readers of Hegel's similar criticism of Kant's categorical imperative. See, e.g., Hegel, G. W. F., Elements of the Philosophy of Right, (many editions), remark to para. 135.Google Scholar A similar charge, with R. M. Hare's work in mind, is made in Locke, D., “The Trivializability of Universalizability”, (1968) 77 Philosophical Review.CrossRefGoogle Scholar

6 Moore, JR, p. 29.

7 Although one may deserve and receive both — as in those cases of soldiers who disobey orders and achieve victory for their side as a result. It is churlish to punish the disobedience as well as rewarding the gallantry but such a response is neither unknown nor illogical.

8 J. L. Mackie makes this point about retribution, supra n. 4, at 678.

9 John Stuart Mill would find an even deeper level of circularity in Moore's account, arguing in Utilitarianism, chap. IV, that “the idea of penal sanction … enters not only into the conception of injustice, but into that of any kind of wrong. We do not call anything wrong, unless we mean to imply that a person ought to be punished in some way or other for doing it…” Mill, J. S., Collected Works, Vol. X (University of Toronto Press, 1963-) 246.Google Scholar This view is discussed in David Lyons, “Mill's Theory of Morality”, (1976) 10 Nous, and recent versions of it are defended by Gibbard, Alan, Wise Choices, Apt Feelings (Oxford, Clarendon Press, 1990) chap. 1, pp. 40–46, chap. 7Google Scholar, and Skorupski, John, “The Definition of Morality”, in Griffiths, A. Phillips, ed., Ethics (Cambridge University Press, forthcoming).CrossRefGoogle Scholar If acceptable (I have my doubts), this claim would vindicate conceptual retribution at the most general level. The circularity exposed by analysis would be entirely virtuous so long as one recognised that continued use of this concept of wrong, with this implication, may be challenged and requires defence.

10 Hampton, Jean and Murphy, Jeffrie, Forgiveness and Mercy, (Cambridge University Press, 1988)Google Scholar; Pillsbury, Samuel, “Emotional Justice: Moralizing the Passions of Criminal Punishment”, (1989) 74 Cornell L. R.Google Scholar; Moore, JR, p. 26.

11 Thie footnote, strangely, is the only place in MW and JR where the structure of the argument from hypothetical examples is analysed clearly. Moore, MW, p. 706.

12 Mackie, J. L., Ethics: Inventing Right and Wrong, (Harmondeworth, Penguin, 1977) chap. 4.Google Scholar

13 Moore, MW, p. 706.

14 Moore, JR, p. 29.

15 Dolinko, David, “Some Thoughts about Retributivism”, (1991) 101 Ethics 637–669.CrossRefGoogle Scholar

16 Moore, JR, n. 60, p. 44.

17 Moore, JR, p. 45.

18 Dworkin, Ronald, “The Original Position”, in Daniele, Norman, ed., Reading Rawls, (Oxford, Blackwell, 1975).Google Scholar