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Positive Retributivism
Published online by Cambridge University Press: 13 January 2009
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One dark and rainy night, Yuso sexually assaults and tortures Zelan. In escaping from the scene of his crime, he falls heavily and becomes an impotent paraplegic. Instead of treating his fate as divine retribution for his wicked acts, Yuso sees it as sheer bad luck. He shows no remorse for what he has done, and vainly hopes that he will recover his powers, which he now treats as involuntarily hoarded resources to be used on less rainy days. In the presence of others, he pretends that he has turned over a new leaf. He asks for religious and educational books, hoping (he tells everyone) to make up for his poor education and deprived social background. But he immediately discards them when he is alone in favor of the pornographic magazines which he has bribed a nurse to smuggle in for him. His deception and various obscene acts committed in the hospital are exposed; by the time he comes up for trial, everyone knows that he is still a lustful, sadistic, and unrepentant man.
Most retributivists have a sufficient justification for punishing Yuso independently of the social consequences of his punishment. Two features of the case might cause some difficulties. First, Yuso has already experienced considerable suffering and deprivation both before and after his crime, and retributivists might disagree about the relevance of the suffering to his punishment. Secondly, Yuso is unrepentant, and it is unlikely that punishment will change him. This might, as we shall see, create a problem for those who think that the justifying aim of punishment is the moral reform of the offender.
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References
1 See, in particular, Duff, R.A., Trials and Punishments (Cambridge: Cambridge University Press, 1986)Google Scholar and Duff, R.A., “Punishment and Penance – A Reply to Harrison,” The Aristotelian Society, supplementary vol. LXII (1988), pp. 153–67.Google Scholar I discuss Duff's view at length in Sections III and IV.
2 Mackie, J.L., Persons and Values (Oxford: Clarendon Press, 1985), pp. 207–8.Google Scholar
3 See Ten, C.L., Crime, Guilt, and Punishment (Oxford: Oxford University Press, 1987), chs. 3–4.Google Scholar
4 ibid., ch. 3. The views examined in the book include the following: punishment annuls crime, punishment connects the offender with correct values, wrongdoers deserve to suffer, punishment gives satisfactions, and punishment is justified because the offender has taken an unfair advantage of law-abiding citizens. See also Honderich, Ted, Punishment: The Supposed Justifications (Harmondsworth: Penguin Books, 1984)Google Scholar, postscript.
5 Sher, George, Desert (Princeton: Princeton University Press, 1987).Google Scholar
6 Morris, Herbert, “Persons and Punishment,” ed. Murphy, Jeffrie G., Punishment and Rehabilitation (Belmont: Wadsworth, 1973), pp. 40–64.Google Scholar
7 See, for example, Burgh, Richard W., “Do the Guilty Deserve Punishment?”, The Journal of Philosophy, vol. 79 (1982), pp. 193–210CrossRefGoogle Scholar; Wasserstrom, Richard A., “Capital Punishment as Punishment: Some Theoretical Issues and Objections,” Midwest Studies in Philosophy, vol. 7 (1982), pp. 473–502CrossRefGoogle Scholar; Galligan, D.J., “The Return to Retribution in Penal Theory,” ed. Tapper, C., Crime, Proof, and Punishment (London: Butterworth, 1981), pp. 144–71Google Scholar; Duff, R.A., Trials and Punishments, ch. 8Google Scholar; Ten, C.L., Crime, Guilt, and Punishment, pp. 52–65Google Scholar. A spirited defense of a theory like Morris's is given by Sadurski, Wojciech, Giving Desert Its Due (Dordrecht: D. Reidel, 1985)CrossRefGoogle Scholar ch. 8. See also Davies, Michael, “Harm and Retribution,” Philosophy and Public Affairs, vol. 15 (1986), pp. 236–66.Google Scholar
8 Sher, George, Desert, p. 80.Google Scholar Sher is referring to an objection made by Richard W. Burgh, “Do the Guilty Deserve Punishment?”
9 ibid., p. 82.
10 ibid., p. 85.
11 ibid., p. 85.
12 ibid., p. 86.
13 ibid., p. 87.
14 Duff, R.A., Trials and Punishments, p. 233.Google Scholar Duff's important book has already attracted two detailed responses: Robert Lipkin, Justin, “Punishment, Penance, and Respect for Autonomy,” Social Theory and Practice, vol. 14 (1988), pp. 87–104CrossRefGoogle Scholar and Harrison, Ross, “Punishment No Crime,” The Aristotelian Society, supplementary vol. 62 (1988), pp. 139–51.CrossRefGoogle Scholar Duff replies to Harrison in the same volume: R.A. Duff, “Punishment and Penance – A Reply to Harrison.” See also Jerome Bickenbach, “Critical Notice of RA. Duff, Trials and Punishments” and Duff, R. Antony, “A Reply to Bickenbach,” Canadian Journal of Philosophy, vol. 18 (1988), pp. 765–86, 787–94.CrossRefGoogle Scholar
15 Trials and Punishments, pp. 256–57.
16 ibid., p. 261.
17 ibid., p. 262.
18 ibid., p. 266.
19 ibid., p. 272.
20 “Punishment and Penance – A Reply to Harrison,” p. 162. See also Trials and Punishments, pp. 260–62.
21 Trials and Punishments, p. 261.
22 ibid., p. 262.
23 ibid., p. 287–88.
24 Far Eastern Economic Review, July 7, 1988, p. 27.
25 The Australian, January 18, 1989.
26 Trials and Punishments, p. 286.
27 ibid., pp. 289–90.
28 ibid., p. 266.
29 ibid., p. 291.
30 ibid., p. 296.
31 ibid., p. 298.
32 Farrell, Daniel M., “The Justification of General Deterrence,” The Philosophical Review, vol. XCIV (1985), pp. 367–94.CrossRefGoogle Scholar See also Farrell, Daniel M., “Punishment without the State,” Nous, vol. 22 (1988), pp. 437–53.CrossRefGoogle Scholar
33 “The Justification of General Deterrence,” p. 373.1 use similar considerations to justify the preventive detention of dangerous offenders; see Crime, Guilt, and Punishment, pp. 134–40.
34 “The Justification of General Deterrence,” pp. 368–69.
35 Hart, H.L.A, Punishment and Responsibility (Oxford: Clarendon Press, 1968), p. 208Google Scholar; see also pp. 180–81. Farrell distinguishes his view from Hart's but gives an incomplete picture of Hart's theory in “The Justification of General Deterrence,” pp. 368–69, n. 1.
36 Trials and Punishments, pp. 179–80. Warren Quinn argues forcefully that it is morally legitimate to create threats of punishment “because it is morally legitimate to protect ourselves in this way against violations of our moral rights” of self-protection. He believes that “the right to establish a genuine threat is prior to the right to punish.” See Quinn, Warren, “The Right to Threaten and the Right to Punish,” Philosophy IS Public Affairs, vol. 14 (1985), pp. 327–73.Google Scholar
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