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2/36

JUSTIFYING RETRIBUTIVISM

Michael S.

Moore

I shall address two concerns in

this paper:

first, what retributivism

is,

and

second,

how one justifies

retributivism as the only proper theory

of

punishment. Since

this

paper

is

necessarily

short,

treatment of

these

topics

is

likewise

abbreviated,

although

hopefully

not

so

abbreviated but

that

it whets

the appetite

for

those who

wish

to pursue them

in greater

depth.1

I.

What

is

Retributivism?

Retributivism

is the view that we ought to punish offenders

because

and

only

because

they

deserve to be

punished.

Punishment is

justified,

for a retributivist,

solely

by

the

fact

that those receiving

it deserve

it.

Punishment

of deserving offenders may

produce beneficial consequences

other than giving offenders

their

just deserts. Punishment

may

deter

future crime, incapacitate

dangerous persons,

educate

citizens

in

the

behavior required for a

civilized

society,

reinforce

social

cohesion, pre-

vent

vigilante behavior,

make victims of crime

feel

better, or satisfy the

vengeful desires of citizens

who

are

not themselves crime victims. Yet

for a

retributivist these are a

happy

surplus

that

punishment

produces

and

form no

part

of

what

makes

punishment

just;

for

a

retributivist,

* Leon Meltzer Professor

of

Law and Philosophy,

University of

Pennsylvania.

An

earlier

version of this paper was given to the Fulbright Colloquium on Penal Theory,

held at the Philosophy Department, Stirling

University,

Stirling,

Scotland in Sep-

tember, 1992.

My thanks

go to

the

participants at

the

Colloquium for their helpful

comments, and

particularly

in that regard to my

commentator,

Dudley Knowles of

the

Glasgow

University Philosophy Department.

My own views

on these topics

have

been spelled out in greater

detail

in: 'Closet

Retributivism (Spring-Summer 1982

USC

Cites 9-16; Law

and Psychiatry:

Re.

thinking the Relationship (Cambridge

U. P., 1984) 233-243;

The

Moral

Worth of

Retribution , in

F.

Shoeman, ed.,

Character

Responsibility and the

Emotions

(Cam-

bridge U. P.,

1987 179-219,

reprinted in

Joel

Feinberg and Hyman Gross, eds.,

Philosophyof Law (Wadsworth,

4th ed.,

1991

685-707; PlacingBlame: Theory of

the CriminalLaw (Oxford U. P., forthcoming),

chaps.

2 and 3.


3/36

ISRAEL

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deserving

offenders should

be punished even

if the punishment

pro-

duces

none of

these

other,

surplus good

effects.

A

number of

ambiguities

are

present

in

retributivism

that should

be

clarified

before

we

move on

to

its justification.

One

of these has

to do

with the connection

of

punishment

to

the desert

of the offender.

Retributivists

assert

that

punishment

is justified

only if

those

who

receive

it deserve

it,

2

but

that is

not the connection

between

desert and

punishment

that

is distinctive

of

retributivism. Rather,

the

more dis-

tinctive

assertion

of

the

retributivist

is that punishment

is

justified

if

it

is

given to those

who

deserve

it.

Desert,

in

other

words,

is

a

sufficient

condition

of

a

just

punishment,

not only

a necessary

condition.

The

second ambiguity

has to do with

the

moral

demands

that

just

punishment

makes

on

state

officials

and citizens.

The

desert of offend-

ers

certainly gives

such officials permission

to punish

offenders,

and this

permission

to give

just

punishment

is no

mere

Hohfeldian

privilege

but

a (claim)

right to punish.

But

retributivism

goes

further.

As a theory

of

a kind of justice,

it obligates

us to seek

retribution

through the

punishment

of the

guilty. This

means that officials

have

a

duty

to

punish

deserving

offenders

and

that citizens

have

a duty

to

set

up

and

support

institutions

that

achieve

such

punishments.

3

The

third

ambiguity

has to do with punishment

itself.

Does

retributivism

purport

to justify why we

have

institutions

of punishment

generally,

or

only why

we punish

particular people on

particular occa-

2

The late

John

Mackie called

this view

negative

retributivism*:

J. L. Mackie,

Morality

and the Retributive

Emotions',

(Winter/Spring,

1982

Criminal Justice

Ethics

3-10;

Mackie, Retributivism:

A

Test Case for Ethical

Objectivity,,

in Joel

Feinberg

and Hyman

Gross,

eds., Philosophy

of Law (Wadsworth,

4th ed.,

1991 677-

684. Note

that

the

negative retributivist,

if

he

is

truly a retributivist

at all,

must

also

be a positive retributivist.

For

the negative

retributivist

asserts that the

justification

for

not

punishing

those who

do not

deserve it lies in

the

fact

that there

is no

morally

acceptable

reason

to punish in

the absence of

desert; this implicit

appeal

to the deserving

of

retributive

justice is

distinct from

justifying the

non-punishment

of

the innocent

on grounds of fairness,

liberty,

or

utility.

(On the latter

point, see

Moore, ct nd

rime (Clarendon

Law Series,

Oxford

U. P.,

1993

chap. 3.

3

See Moore,

'The Moral

Worth of

Retribution ,

supra

n. 1,

t

182.

David

Dolinko

has

come

to label

this

a bold retributivism,

to

be

contrasted

with a weak

retributivism

according

to which

it is

only

permissible

to

punish

those

who deserve

it.

See Dolinko,

Some

Thoughts About

Retributivism , 1991)

101 Ethics 537-559,

at 542.

The

late

John

Mackie

called this pair

positive

versus

permissive

retributivism,

respec-

tively:

Mackie,

'Retributivism:

A Test

Case for

Ethical

Objectivity',

supra

n.

2,

at

678;

Mackie,

Morality

and the

Retributive

Emotions ,

supra

n.

2, at

4.

[Is.L.R.

Vol. 27


4/36


sions? Some

theorists have wished to distinguish

the

general justifying

aim of

the

criminal law

from

the justifications of

particular

decisions

within an ongoing

criminal

law system.

4

While

such a distinction

certainly

has its

uses, it is of no

use

in wedding

retributivist to, say,

utilitarian

concerns

with justifying punishment. Even if

one

were to

concede the

existence

of

practice

rules rules

which require

moral

justification but whose application to particular cases is to be made

without

resort

to that

moral

justification

5

-

such

concession goes

no

distance

towards introducing

any

alien

concerns into

either

a

retribu-

tive or a

utilitarian

punishment

scheme.

That

is,

if

one

is

a

utilitarian

in

his justification of the

practice

ofpunishment, one will remain purely

a

utilitarian even if one bars utility

calculations

in

applying criminal

law rules; and mutatis mutandis for

the retributivist. Retributivism is

thus the view both

th t punishment institutions in general are justified

by

the

giving of just

deserts and that the

punishment of each

offender

is justified

by

the

fact

that

he or she deserves

it.

The fourth

ambiguity has to

do

with

the consequentialist

versus

deontological

nature of

retributivism.

A consequentialist about moral-

ity believes that the

rightness

of an action

is

exclusively a function of

the

goodnessof the consequences that that action produces; a deontologist

about morality believes that the rightness of an action is (sometimes at

least) a function

of the action's conformity with agent-relative norms,

norms th t are addressed to

each

person individually at a particular

time

and that

are not concerned

with

maximizing conformity to such

norms by

oneself

or

others on other

occasions.'

The

distinction

becomes

clearer

if we apply it to retributivism. Take

Kant's

old

example

of

the

last

murderer in

an

island

society

th t

is

about

to

disband and leave

its

island.' A

retributivist

believes

th t the

murderer should

be

punished

because he

deserves it even though no

other

good

will thereby be achieved.

The guilty, in other

words, must

4 Most notably, H.

L.

A.

Hart,Punishment

and

Responsibility

(Oxford U. P.,

1968),

and

John

Rawls,

Two

Concepts

of Rules , 1956) 64 Philosophical

Review 3-32.

5 This

Rawls/Hart distinction

has been carried

into

more

recent

discussions

by Joseph

Raz. See

his

Practical

eason

and

Norms

(Oxford

U.

P.,

1975). I

argue

against Raz s

version of practice

rules

in

Moore,

Law, Authority and Razian Reasons', (1989) 62

S. Cal. L.

R.

827-896,

and

Moore, Three Concepts of Rules', (1991) 14

Harv. J. L.

and

Public

Policy

771-795.

6 This

distinction is explored

in much

greater

detail in Moore, 'Torture and

the

Balance

of

Evils , (1989) 23 Is. L.

R.

280-344.

7

Kant, The

Metaphysical lements of Justice

J.

Ladd, trans.,

1965) 102.

Nos.

1-2, 1993]


5/36

ISRAEL

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be

punished.

If

one

construes

this

retributivist

norm as

an

agent-

relative norm, then

the

members

of Kant's island

society are

obligated

to

punish

the

last

murderer even

if

by

doing

so

other guilty murderers

elsewhere

will

go unpunished.

(We

might imagine,

for

example,

that if

we punish

this murderer, he

will not

testify

against

other

murderers

who

will

thereby

escape

conviction

and punishment.)

Alternatively,

one

may

look

to

the overall

consequences

of applying

the

norm;

if

one

construes this

retributivist norm

as a norm describing

a

state

of affairs

that

is to be maximized,

then the

members of

Kant's island

society

should

not

punish

the

last

murderer

but

should

rather

maximize

the

punishment

of

the

guilty

by their

actions.

The

deontological

or agent-

relative retributivist

regards the act of

punishing

the

guilty as categori-

cally

demanded

on each

occasion,

considered

separately;

the

consequentialist

or

agent-neutral

retributivist

regards

the

state

of

the guilty

receiving

punishment

as a good state

to be maximized

even

when

this

means

that

some guilty

persons are

intentionally

allowed to

escape punishment.

It

is usually

assumed

that

retributivism

must

be

of the

agent-relative

kind.

8

Often this

assumption is made

about retributivism,

the

better

to

criticize

it.

Thus,

it might

be

argued that retributivism

cannot justify

any

actual

institution

of punishment

because

any

actual

institution of

punishment

will

make some

mistakes in its findings

of

guilt, namely,

some actually

innocent persons will

be found guilty.

9

How,

then,

could

an agent-relative

retributivist

justify setting

up retributivist

institu-

tions

of

punishment?

Not

by

weighing

the

evil of

a

guilty

many not

being

punished (if there

were

no

institutions of

punishment) against

the evil

of a few

innocents

being

punished (as will be

the

case if

there

are

institutions

of

punishment)

for

this mode of

justification would

be

consequentialist,

a

mode not allowed

to the

supposedly necessarily)

agent-relative

retributivist.

Alternatively, it

might

be

thought

that

we rightly

refuse to

punish

some guilty

persons in

order

to be able

to punish

other,

more

seriously

guilty

persons as

when

we

give

immunity,

in order

to extract

testi-

mony

needed to

convict

the

latter.

1

How

can

the

retributivist

accom-

8 See,

e.g.,

Dolinko,

Three

Mistakes

of

Retributivism ,

1992)

39

UCLA

L.

R.

1623-

57.

9

See

Dolinko, ibid Schedler,

Can Retributivists Support

Legal

Punishment?*

1980)

63 Monist

185-198. Compare Larry

Alexander, Retributivism

and the

Inadvertent

Punishment

of

the Innocent'

1983)

2

Law and

Philosophy

233-246.

10 I

owe this point to

Dudley

Knowles.

[Is L R Vol

27


6/36


modate these practices,

given

that

the

retributivist

regards the

punish-

ment of the

guilty to

be

categorically

imperative whenever the opportu-

nity

to

give such punishment presents itself?

Yet if a

retributivist

may be a consequentialist, these are obviously

non-problems

for his

theory

of punishment. With regard

to

the first, a

consequentialist-retributivist

need

not maximize the punishment of

the

guilty

to

the

exclusion of maximizing other, equally valuable

states

of

affairs,

such as

the

non-punishment ofthe

innocent.

Such a retributivist

may-easily

maximize both

that

those deserving punishment receive

it

and that

those not deserving

of

punishment

not

receive

it.

Where

in

the

actual

design of punishment

institutions the

consequentialist-

retributivist comes out on

this

balance need

not here

detain

us;

1

the

important point

is

that

there

is

no

incoherence even prima acie in such

a retributivist setting up an institution

that will

punish

some

innocents

in

order to punish

the

guilty and forego

punishing some guilty

in

order

not to

punish too many innocents.

Likewise

with

regard

to

the second

problem the

consequentialist-

retributivist

will

intentionally refuse

to

punish

guilty persons

whenever

more guilty persons (or

greater guilt) will

be

punished thereby.

For the

consequentialist-retributivist, no matter how intrinsically good

it is that

the

guilty

receive

their

deserts,

more

of that good

is to

be preferred to

less of it.

Can

the retributivist

be

a consequentialist? One can, of course

define

retributivism

so that

a

retributivist must be

a

deontologist.

Yet

I

suspect that

the temptation

to so define retributivism

stems from

a

simple

confusion.

The confusion is between the intrinsic goodness of

retribution

being exacted

on

the

one hand,

and

the

categorical

duty

to

punish the

guilty

on

each

occasion

where

that

can be

done, on the other.

As

I shall argue shortly in the next section what

is

distinctively

retributivist is

the view

that

the

guilty

receiving their just deserts

is

an

intrinsic good.

It is, in

other words,

not

an instrumental good

good

because such punishment causes other states of

affairs

to exist that are

11 The retributivist might adopt a principle

of symmetry here the guilty going

unpunished

is exactly

the

same

magnitude

of

evil

as the

innocent

being

punished

and design his institutions

accordingly.

Or

the

retributivist

might share the common

view (that

the second is a

greater

evil than the first)

and

design

punishment

institutions

so that

ten

guilty persons go

unpunished

in

order

that one

innocent not

be punished . See Jeffrey Reiman

and

Ernest van

den Haag,

'On the Common

Saying that it

is

Better that Ten Guilty

Persons

Escape than that

One

Innocent

Suffer:

Pro and Con' 1990) 7

Social

Philosophy and

Policy 226-248.

Nos.

1-2, 1993]


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ISRAEL LAW

REVIEW

good.

Even

if

punishing the guilty

were

without

any

further

effects,

it

would be a good

state

to

seek to bring about, on

this

intrinsic

goodness

view

of punishing the guilty.

This distinction between

intrinsic

versus instrumental

goodness

is

commonly confused with

the

distinc-

tion

between

deontological

and consequentialist

views of right

action.

The

result is that

something

that

is

not

distinctive of retributivism (that

we

each

have an agent-relative obligation to

see that the

guilty

are

punished) is

taken to

be essential to

retributivism.

Although

I thus conclude that a retributivist

may be a consequentialist,

neither

of

the

two problems

above raised for

deontological versions of

retributivism

should incline

the

retributivist

towards the consequentialist

version.

The probable punishment

of

the

innocent

by

any real-world

punishment

scheme is

not

much

of

a

worry even for

deontological

versions

of retributivism.

We

rightly set

up many

social institutions

where we

know that some percentage

of individuals affected

by

them

will be

hurt or even

killed,

e.g., coal-mining, high-rise

construction,

and

speed

limits

on freeways. That

we

know

that some percentage of

individuals

will

likely

suffer

these harms

if

we

arrange these

institu-

tions as

we do arrange them is not

to

be

equated with either

our

intending

that they be so

harmed,

or knowing

that some

identified

individual

will suffer that harm.

Agent-relative

moral norms

bind

us

absolutely

only with respect to evils

we either intend or (on

some

versions)

knowingly visit

on

specified

individuals. One

can

thus

arrange

safeguards in coal

mines,

high

rise construction, automobile

travel, and

punishment in ways

that predictably will hurt some

who do not deserve

to be hurt, without for a moment

ceasing

to

be an agent-relative

theorist

about morality.

The

same

cannot be said about

the

intentional foregoing of any

opportunity

to punish a

guilty

offender

in order

to

obtain

the

conviction

and punishment of an

even more guilty offender,

which is why this

common

prosecutorial practice

is

more of a problem for the deontological

version

of

retributivism. Yet the deontological

retributivist might sim-

p y

deny the propriety of the

practice. More plausibly, if

he is a

threshold

deontologist ,

as am I, he

might more qualifiedly

disavow the

12 I explore

both

the

doctrine

of

double effect, and the analogous

doctrine distinguishing

knowing visitation

of harms on

specified

people versus

risking

harm to

some

uniden-

tified part of

a

class

of persons in Moore supr

n.

6

As

I there

show n

detail,

any

deontological

view of

morality

must

incorporate

some such limits

as these in

order

to

specify the domain

over

which

morality's

absolute prohibitions range.

[Is L R

Vol

27


8/36

JUSTIFYING RETRIBUTIMSM

practice

except

when

it

is needed to

punish

some

very deserving

criminal(s).

1

3

In any case,

nothing in

the

present

project requires

that

we

decide

between

deontological

versus

consequentialist retributivism.

Both

are

recognizable

versions

of

retributivism.

The

most

important

point

here

is not to

confuse

the distinction between these two versions of

retributivism

with the

quite

different

distinction

between

valuing the

giving of

just

deserts as only instrumentally

good,

as opposed to valuing

it as intrinsically

good.

II. Justifying

Retributivism

A. Morally

Justifying The

Retributive

Principle

by

Particular

Judgments

How is

retributivism,

so defined, to

be

justified?

Very generally,

there

are three sorts

of

things

which

might

be

said

to

justify

the

retributivist

principle

of punishment.

One is a

conceptual

claim:

only

when harsh

treatment is imposed

on

offenders

in

order to

give them

their

just

deserts

does

such

harsh

treatment

constitute

punishment

The

conceptual claim is made

about our concept of punishment, and

the

claim

presupposes

that that concept

is

captured by the

purpose

for

which punishment

is

imposed

as

much

as by any structural feature that

it

may

possess.

A second sort of justification of retributivism is a legal

claim:

within

our legal

system

with its established doctrines and

procedures,

the

implicit goal is the retributive one

of

seeking

to

give

just

deserts to

offenders.

The claim is

an

interpretive

(or as I prefer

to say, a

functional )

one,

in that it accepts

established

legal

institutions

at

face

13

A

threshold deontologist

refuses

to

violate a categorical norm

of

morality

until

no t

doing

so

produces

sufficient ba d

consequences

as

to pass some

threshold

then,

he

will override

such

categorical norms. See Moore, supra n. 6.

14 For

this

older form of argument

see,

e.g., A

M.

Quinton,

On Punishmente (1954) 14

Analysis 1933-42. For a related argument, seeking to tease

retributivism out

of our

concept of law, see Herbert Fingarette, Punishment

and Suffering

1977)

50

Pro-

ceedings

of the American Philosophical Association

499-525.

Nos. 1-2,

1993]


9/36

ISRAEL

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value

and

asks, what

goals

make

the

most sense of these ?

5

The

claim

is

that

the retributive goal fits our

established doctrines

well,

whereas

competing

utilitarian

goals like crime-prevention

fit

so poorly

that

they

seem like

so

many

of F. H. Bradley s

bad reasons

for

what we believe

on instinct anyway.

A third

sort of

justification

of

retributivism is

a

moral

claim:

our

obligation

to

punish

offenders

so as to

give

them

their

just deserts

is

justified

in this sense if

the

practice

meets whatever epistemic

stan-

dards we impose to

justify any

of our moral beliefs. f

we are

consequentialists

about morality, and

if

there are

other

goods

to

be

maximized besides

giving

the

guilty

their due, then

we

may

seek to

justify

this retributive value by

its contribution to the

maximizing

of

some other good(s)

that we accept

more

readily

than

we

accept

the good

ofretributive punishment.

If we are

not

consequentialists about moral-

ity, or

if

our

consequentialism admits

of

no

goods that

are more basic

than

the good of

achieving retributive

justice,

then our mode

of

moral

justification cannot be

in

terms ofsome

other value served by retributive

punishment. Rather,

we

must

justify retributivism

in

whatever

way

we

justify actions

and

practices

as being intrinsically

right.

However we

justify the

intrinsic

rightness

of

not punishing

the innocent, for

ex-

ample,

is

how we should

justify

the

intrinsic rightness

of punishing the

guilty, on this

general view of morality.

The

most

important

sort of

justification

is

the

third one,

the

moral

justification

of retributive

punishment, and

so I shall

focus on it alone.

In

order

to understand

what we can

rightfully

ask

for by

way

of moral

justification

we need to keep

three

distinctions

in

mind.

One

of

these

is the consequentialism/deontology

distinction

of the

last section.

The

second

of these

was

also adverted to earlier, that

between

the intrinsic

versus the

merely instrumental

goodness of a state

of affairs or of an act

or institution.

A state

of

affairs,

act

or

practice

is

intrinsically good

if

its

goodness does

not depend

on

some further

effect that the

state

of

affairs, etc., produces. One

might think that giving

a

novelist

some

reward

for producing

a novel is

intrinsically good, it

being no

more than

she deserves.

Alternatively,

if the

goodness

of such

a

practice

of

reward-

15

Ronald

Dworkin

regards such claims

as interpretive, although

I prefer the

older if

less fashionable

label, functional .

For

the difference,

see

Moore, Law as

a Func-

tional

Kind ,

in

Robert

George,

ed.,

atural

aw

Theories

(Oxford U. P.,

1992) 201-

203, 220-221. For the functionalist

claim

that Anglo-American criminal

law is a

functional

kind

whose

implicit

goal

is the seeldng

of retributive justice,

see

Moore,

ATheory of

Criminal

Law Theories ,

(1990)

9 T. A. U. Studies

in Law

115-185.

[Is.L.R.

Vol. 27


10/36

JUSTIFYING

RETRIBUTIVISM

ing novelists with

copyright

monopolies

inheres in

the

effects of

the

practice y giving

rewards

one

gives incentives to

other

novelists to

produce novels, and novels

are

an

intrinsic good then

the practice is

only

instrumentally

good.

Notice

that the notion of instrumental goodness

is not to

be

identified

as

utilitarian.

Utilitarianism is a kind

ofconsequentialist moral theory

with a

particular

idea

of

what

is

intrinsically

good pleasure,

happi-

ness,

preference-satisfaction, or some other welfarist

notion. For a

utilitarian,

all

other goods

are merely

instrumental.

There is

nothing

in

the intrinsic/instrumental

distinction

that

requires

this kind

of

mo-

nism about what is intrinsically

good One might

well

be a

pluralist

in

this regard, admitting that

the welfare of

persons is

an intrinsic goo

while

also thinking that not punishing

the

innocent,

giving

those who

labor

the

fruits

of

that

labor,

not

demanding

the

impossible

from people,

etc.,

are

equally intrinsic and not merely instrumental goods.

As

I

mentioned

in the

last

section,

this intrinsic/instrumental

distinc-

tion is

often

mistaken

for

the

deontological/consequentialist

distinction.

Yet

these are quite distinct

oppositions.

One

might

believe

th t

giving

those who labor the

fruits

of their

labor is

intrinsically good. This

does

not determine whether

one

is

a consequentialist, so

th t the

right

institution (of copyright,

say) is one that maximizes

this intrinsic good

ysacrificing its attainment in the

short run

for

even more of it

in the

long run; or whether one is a

deontologist, so that the

practice

of giving

the

novelist the

fruits of

her

labors is

the intrinsically

right

thing

to

do

on

any

occasion

on which one

can

do

it

The intrinsic/instrumental

distinction is also

often

confused

with the

third

distinction

pertinent

here,

the distinction

between first principles

in

ethics, and all other principles (let us

call them

secondary

prin-

ciples ).

A first

principle, as the name suggests,

is

the most general

description ofwhat it

is

intrinsically right

to

do or what states of affairs

are

intrinsically

good to cause. Being

first, such

a

principle cannot

be

deduced

from some

more general

principle. This feature of first prin-

ciples may

suggest that

such principles cannot be

argued

for at all and

that

they

must

therefore

be

defended

as self-evident or revealed by

religious

faith.

My

own

view

of justification in ethics rejects

these last connotations

of the idea of first principles. On what is

often

termed

a

nonfoundationalist

or

coherence

view

of

ethical

justification,

to

say

that

a

principle is the

most general

that

can be formulated

and

therefore that it cannot be argued for by

showing it to be an instance

Nos 1-2 1993]


11/36

ISR EL

L W

REVIEW

of

a yet more general principle

is

not

to

say that

the principle cannot

be

argued

for

at

all. Rather,

first principles

are to be

justified as

abductive

inferences

from

more

particular

principles

and judgments. 16

When John

Stuart Mill

argued for his

first

principle (of

utility),

for

example,

he

saw

that

th t principle

could not be

deduced from

some

yet

more general principle

else

the principle of

utility would

then

not

be

a first

principle.1

7

Yet

(on one interpretation

of Mill) he did

argue for

the principle

of

utility

on

the grounds that it

best

described

what

was

common to all more

particular

judgments about

what

states of affairs

are

desirable,

namely,

that

they

are

desired.

Similarly, when

John

Rawls

argued for

his two

first principles of

distributive

justice, he

did

not

seek

to deduce

them from some

more general principle

of

justice

as

such.

Rather,

he

sought to show how

his

two

principles best

described

a

range of particular

judgments, both

substantive

(no one

deserves

his

own talents) and

procedural (hypothetical

agreement

in a fairly

con-

structed

setting for choice). is

It is a kind of category

mistake

to

equate

the

first

principle/second

principle

distinction with

the distinction

between

intrinsic

goodness/

instrumental

goodness.

The

latter is a metaphysical

distinction

be-

tween

two sorts of value.

The

former

is an epistemological distinction

between

two sorts of

principles

through

the

grasping

of

which

values

are

known by

us.

Moreover,

there is

no tight

linkage

between the

two

distinctions.

While a first

principle

presumably

describes

what

is

intrinsically good or

intrinsically

right,

secondary

principles

may

do

so

as well.

I

may,

for example, believe that

giving

this

novelist this sort

of copyright

protection is intrinsically

right, believe that

giving

novelists

copyright protection is

intrinsically right,

believe

that

giving

property

rights to

anyone

who

creates

a

novel

thing is intrinsically

right, and

believe

that giving

anyone

what

they

deserve is intrinsically

right,

even

though

only

the most

general of these

beliefs should

be construed to

have as

its content a

first principle.

This

minor detour

into some fundamental

distinctions

in ethics

is

essential

if we

are to

keep proper

perspective

on various

criticisms

of

my

mode ofjustifying

retributivism. For what if

one

were to hold that: 1)

the

retributive principle is a first

principle;

(2) the

suffering

that

pun-

16

See

Moore,

Moral Reality , [19821 Wisc.

L. R 1061-1156;

Moore, Moral Reality

Revisited

1992)

90 Mich. L. R 2424-2533.

17

John

Stuart Mill, Utilitarianism

Liberal Arts

Press, 1957) 44.

18

John Rawls,

Theory of ustice (Harvard

U. P., 1971 .

[Is.L.R.

Vol. 27


12/36

JUSTIFYING

RETRIBUTIVISM

ishment

entails is an

intrinsic

good

when inflicted

on

those

who

deserve

it; and

3) we each

have

an

agent-relative

obligation

to punish

the guilty

(even

if other guilty persons

would escape punishment)

because the

intrinsic goodness of such punishment

is

not

to be

maximized

by

our

actions? If

retributivism

is

taken to

be

a first

principle

describing

an

intrinsic

value

that we

each

categorically

are enjoined

to realize

in

our

actions,

then we

must tailor

our demands for its

moral

justification

accordingly.

My

own mode of

justifying

retributivism

has tried

to do this.

1

9

I

take

seriously

the

sorts of

particular

moral

judgments

that

Kant-like thought

experiments

call forth in me

and

in

most people

I know: imagine

an

offender

who

does

a

serious

wrong in

a

very

culpable

way

e.g.,

Dostoevsky's Russian

nobleman in The

BrothersKaramazov

who

turns

loose his

dogs to

tear apart a young

boy before the

eyes of

the

boy's

mother;

imagine further

that circumstances

are such (e.g.,

Kant s

island

society

about to disband)

that

no

non-retributive purpose

would be

served

by

punishing this offender.

Now

imagine two

variations:

1)

you

are

that

offender;

(2)

someone

else is

that

offender.

Question: should

you or

the other offender be

punished, even

though no other

social good

will thereby be

achieved? The retributivist s

yes runs

deep for most

people.

The

main

reason that

thoughtful

people

often give for disavowing

their own retributivist

intuitions about

such cases is that

they

think

such impulses

to

be

unworthy

of

them. More specifically,

they under-

stand that such judgments

are the

products of emotional

responses by

them

to

the

brutal

facts

of

such cases,

and

they wish to

disavow those

emotions.

That

is

why

I

have

found

it

important

to

separate

the

first

and

third

person

variations

ofthe

thought

experiment.

Such

variations

call

forth quite different emotions,

even

if

they

lead

to

a

common

judgment

of

deserved

punishment.

The

third

person variation

of the thought experiment

is

admittedly

quite

troublesome

in

terms

ofthe sort ofemotions it

calls forth.

Nietzsche

observed

that such thought

experiments

called

forth that

witches

brew

of emotions he

lumped under

the French term, ressentiment:

emotions

of

resentment,

fear, revenge, sadism,

and

cruelty. Because such

emo-

tions are

unworthy of us, Nietzsche

urged,

we

should disavow the

retributive

judgments to which they

lead.2

19 Moore, The

Moral

Worth of

Retribution,

supr n.

1.

20 For discussion and

citations, see

Moore,

The

Moral Worth of

Retribution , ibid

Nos. 1-2 1993]


13/36

ISRAEL

LAW

REVIEW

More

recently

a

number

of legal

philosophers have sought

to

rescue

these

kinds of

retributive

judgments

from Nietzsche's

sort

of disavowal.

Jeffrie Murphy,

Jean

Hampton, and

Samuel Pillsbury

have

each

sought

to

distinguish

a virtuous

emotional response

from responses

of

ressentiment

to third person

thought

experiments.

1

In different

ways

they

have

each sought

to distinguish

a

moral hatred

or

a

moral

outrage that

is

the

only proper response

of

a

moral

being to the

gross

violations

of morality

by

others

that

violent crime

represents.

To

my

mind, they have made

their

case:

to

be

indifferent

to

culpable

wrongdo-

ing

by

another

evinces

both a lack of

empathetic

identification with

others

who

are victims,

and a

lack

of

attachment

to

morality.

The

virtuous person may turn

the other

cheek

when it

is

his cheek that

has

been

slapped (although

I

doubt

even

this), but

there is no virtue

in

turning

someone

else's cheek

when

they've

been slapped.

Violations

of

others'

moral

rights

should

make

us angry

t those

who

flout

that

morality, and that anger

need

not

be

tainted

by

cruel,

sadistic, fearful,

or

resentful emotional accompaniments.

My own

rescue

of

retributivism

from

Nietzsche's

charge

has

been

different. I have

focused on

the first person

variation of the

Kantian

thought

experiment,

where we

are

to

imagine

that

it is

we who have

culpably done

some great

wrong. Here there

is a

much

lessened danger

that our intuitions about

desert

will

be tainted

by the

emotions of

ressentiment

Rather,

one emotion

here predominates,

and

that

is the

emotion

of

guilt. A virtuous

person

would

feel

great

guilt at violating

another's

rights

by killing, raping,

assaulting,

etc. And when that

emotion

of

guilt

produces

the

judgment

th t one deserves

to suffer

because

one has culpably

done

wrong,

that

judgment

is not

suspect

because

of its emotional

origins in

the

way

that

the

corresponding

third

person

judgment might

be.

It may be tempting

to

concede

that in

one's

own case: (1)

one

would

indeed feel very guilty

if one culpably did

such

a wrong; (2)

that

such

feelings

of guilt

would

be

virtuous to

feel indeed,

the only

tolerable

response of a moral

person; (3)

that therefore

the

judgment

which

such

emotion

produces

that

one

is guilty

and deserving

of punishment

is

true.

Yet,

one

might

refuse:

(4)

to generalize

this

judgment

about

one's

own deserved

punishment

to

others

who

do

like wrongs.

One

21 Jean Hampton and

Jeffrie

Murphy,

Forgiveness

and

ercy

(Cambridge

U. P.,

1988 ;

Samuel

Pillsbury

Emotional Justice:

Moralizing the Passions of

Criminal

Punish-

ment

(1989) 74

Cornell

L. R. 655-710.

[Is L R Vol.


14/36


might

think

that the standard that we apply to ourselves

should

not be

applied to

others.

This

sounds

like a

generous

way

to think.

It

is important to

see that

it

is not.

To grant that you

would

be guilty

and

deserving

of

punishment,

but that

others

who do the

exact

same

wrong with the exact same

culpability

would

not

be, is

to arrogate to yourself a god-like position.

Only you

have

those

attributes of moral agency

making

you alone a

creature

capable

of being morally

guilty; others are simply lesser beings,

to

be

pitied perhaps, but not

to

be

blamed as you would blame yourself.

This is not moral generosity.

Rather,

it

is

an elitist

arrogance

that

denies

one s common humanity

with

those who do wrong. Such elitist

condescension is no virtue,

and

provides

no basis for refusing to

endorse

the

fourth step

in the first

person version of the Kantian thought

experiment,

a step

generalizing one s own potential for guilt and de-

served punishment to other persons.

B

Critical

Reconsiderationof

this

Mode of

Moral

Justification

A

variety

of

criticisms

have been levelled

at

my justification

of

retributive

punishment via particular thought experiments and

the

kind

of particular judgments

that

they

call forth. The

leading

criticisms

seem to be five

in number,

which I shall

deal

with

seriatim

1

First

is the charge of circularity. The

charge

is

that the general

judgment

that

punishment should be imposed

just because culpable

wrongdoers deserve it

is

being justified

by nothing

but itself. For

what

are

the judgments

in particular

thought experiments

but

judg

ments

that punishment should

be imposed (e.g.,

on Kant s

last

murderer

in

the

island society,

on

Dostoevsky s cruel nobleman, etc.) just because

each of

these

culpable wrongdoers

deserve to be

punished? The

worry

here

is

one

of question-begging:

since

the particular

judgments with

which

we start are themselves

retributive judgments, how can they

justify

the

general

retributive judgment without begging the question?

There are three ways of

construing

this question-begging or circu-

larity)

worry.

One

is

to

construe

it

strictly:

literally,

the

very same

principle is

being

used

to justify itself. So construed,

the worry is

groundless, for

the

particularjudgments

called

forth

by

Kant-like

thought

experiments are not identical

in

content with the retributive principle

itself. The

retributive

principle is

the universalized judgment that all

culpable

wrong-doing

ought

to

be punished; Kantian thought experi-

Nos

1-2

993]


15/36

ISR EL

L W

REVIEW

ments

give rise

to particular

judgments

that

particular persons in

particular

situations

ought

to be punished.

The former

judgment

stands

to

the latter

judgments as universally generalized to

singular state-

ments:

aspects

of

the

situations

involved in

the

latter

judgments are

abstracted

as relevant,

and these

are universalized

into

the

general

judgment

that whenever these

aspects are

present punishment is obliga-

tory. Strictly

speaking, thus, the retributivist is

not justifying the

retributive

norm

by

reference

solely to itself. Rather,

he is

inferring

a

universally

generalized statement

from a

set of singular statements.

A

second,

less-literal

construal

of

the question-begging

worry

does

not claim identity

between

the

judgment to

be justified, retributivism,

and

the particular judgments

doing the justifying.

Recognizing

the

distinction between

universally generalized

versus singular

judgments,

this

form of the worry nonetheless

insists that

the

particular judgments

are themselves

retributive.

The

worry

is

that

the

particular

judgments

are

of

the form

the nobleman should

be

punished

because

and only

because he

deserves it . The

worry

is

that

merely

universalizing

this

singular

judgment into the

general

judgment

that

all those

who

deserve

punishment should

be given

the

punishment that they

deserve

is

trivial.

2

2

22 David

Dolinko

advances this form of

the question-begging

objection against my

coherentist

methodology with

an example:

Consider, as

an analogy, a

similar

coherence

justification

for

the view, say,

that

women are inferior to men,

offered

circa

1800

by one man to

another. Someone has raised

the

question

of whether

it is

really

justifiable to treat

women

as inferior

and

is

met with

the response that 'Well,

of

course, we all have the

intuition

that in this

situation

we should

discriminate

against

women,

and likewise

in this and

this; now, the best

way

of

accounting

for these


is to suppose women to

be

morally and

intellectually inferior

to men'.

Wouldnt one

feel

that

the

crucial question

is

being begged?*

Dolinko, su r

n.

3

at

557 58. Notice

that

Dolinko trivializes

the

inference

in his

analogy in

the

manner attacked in the

text:

the particular judgments are not that

this

person

should

be treated

in

some inferior way in

this context; rather,

the

particular

judg

ments already include most

of the

terms

of

the principle

to

be

abstracted

from them

that the

inferior treatment

is

discrimination; hat the only feature

to be

mentioned

is that the

persons

discriminated

against

are women

By

his choice of analogy, Dolinko

also of

course

hopes to suggest that a

coherence

mode

of justification

is no

guarantee

against

moral

error,

for we are only cohering

our

own beliefs and attitudes.

One can easily

concede this

possibility of

error without

for

a

moment

conceding Dolinko's hoped

for conclusion

(that

this form

of

argument

is question-begging).

Our


of

visual perception can of

course also

be in error

on occasion, but

that

does not

eviscerate the power of

those

judgments

to be

good

if not conclusive)

reasons

for

believing

the

principles

abstractable

from

them.

[Is L R Vol 27


16/36

JUSTIFYING RETRIBUTIISM

This

form

of

the

circularity worry

would

be

a

real worry if the

presupposition

on

which

it rests

were

true.

What the

worry

presupposes

is

that

the particular

judgments from which justification proceeds are

of

the

content

just

described.

Yet

such

particular judgments are

not

that

the nobleman should

be punished because

and only

because he de

serves

it . Rather, the particular judgments

are that the nobleman

should be punished, period. It

is

making

such judgments about

a

wide

range of particular cases,

and

abstracting from those cases what

they

have

in common

the desert

of

the

actors

that

then allows the

retributivist

to

infer the

retributivist

principle

that

offenders

should

be

punished when, but only

when,

they

deserve it.

This is not a

trivial

inference,

for

the features of the situations in

which

we judge punish-

ment to be appropriate could

easily

be otherwise. It could be

the

reformability,

or the deterrability, either of

the

particular

offender

or of

some

class

that

he

instantiates, th t

is

the recurring feature present in

the

situations that

call forth

our

judgments

about

the appropriateness

of punishment in particular cases.

As

it happens, these are not

the

features

of

relevant

situations that

recur.

The

inference

that

it is the

desert

of the offenders

that

should

be generalized from our particular

judgments

of

punishment

is thus not a

trivial

one. Such

particular

judgments thus

possess a non-trivial

justificatory force for

sustaining

the

retributive

principle.

The third

and

last form of the

circularity

worry

focuses on

desert

itself.

The worry

here is

that desert

simply means, a

fit

subject

for

retributive punishment , so that when one abstracts desert from par-

ticular cases

(as the feature of those cases

th t

caused judgments of

punishment)

one

has

done

no

more

than

start

with

particular

retribu-

tive

judgments

in order

to justify

the

general

retributive

judgment.

23

Desert ,

however, does not mean, a

fit

subject for retributive punish-

ment , any more than death

means, a

fit subject

for

concern by a

mortician or illness means, a fit subject for concern by

a

medical

doctor .

24

Rather, desert

means

culpable

wrongdoing (at

least

with

respect to blameworthy actions a broader formulation

is

needed to

23

For

an

example

of this

form

of

the

question-begging worry,

see

Mackie,

Retributivism:

A

Test Case

for

Ethical Objectivity , supr

n. 2,

at

79

(Desert'

is

not such

a

further

explanation,

but is

just

the

general, as

yet

unexplained, notion

of

retributivism

itself .)

24

These

last

examples are considered in

Moore,

Law

nd

Psychiatry supr n. 1, at

chap. 5.

Nos. 1-2. 1993]


17/36

ISRAEL LAW REVIEW

encompass praiseworthy

actions).

When

we

abstract

desert out as

the

recurring feature present

in

cases of

prim

f cie

justified punishment,

we

are

thus

not

merely

isolating punishability

on retributive

grounds .

There are two aspects of desert th t

are worth drawing

out

a bit. The

first is

wrongdoing.

A person

does

wrong

whenever his voluntary act

causes a

state

of

affairs to

exist that

instantiates

a moral norm that

prim f cie prohibits such acting and such causing,

and

there is no

moral justification for

this prim

f cie

wrong.

Wrongdoing

is

thus

constructed out

of the

elements

of action,

causation, and

(lack of)

jus-

tification.

=

Culpability

is distinct from wrongdoing. A person may do

wrong,

say

by killing a

perfectly

innocent

victim, yet

be

non-culpable in the doing

of that wrongful

act.

He

may

be

insane, for example,

or

acting

under

extreme

duress, or

he may

have mistakenly

believed

that

his

victim

was

trying

to

kill

him.

Likewise, a person may

be

very culpable and yet have

done

no

wrong.

He

may

have

shot

a stump, for

example,

while believing

that

he

was

shooting

his old enemy. Culpability arises from

the

mental

state

with

which

an

action

may

be

done,

and

the

(lack

of)

excuse

for

the

otherwise culpable doing of a wrongful

action.

To say

that a

person deserves

punishment

is to say

that

he has

culpably

done

wrong (or,

in

some cases, that

he

is culpable even

without

wrongdoing).

Desert is thus far from an

empty concept,

connoting

no

more than punishability

on retributive

grounds. Inasmuch as wrong-

doing

and

culpability are

far from empty

concepts, neither

is desert.

2. I

suspect

that

some critics of my

justificatory

methods might

well

concede

the

above

rebuttals

of

the

three

question-begging

worries

and

yet still think that

generalizing

from particular judgments

to

the

re-

tributive principle cannot justify the latter

principle. To

sustain

this

form of the objection, however,

such

a

critic

would

have

to believe two

things: first,

that

there

is

no more

general

principle from which the

retributive

principle can

be deduced;

and

second, that absent such a

more general principle,

the retributive principle is in no

sense morally

justified.

We can quickly

dispatch with

the

second

of

these beliefs,

for such a

belief is no

more than a return to a rationalist foundationalism

in

moral

25

On

wrongdoing,

see

Moore,

Act

nd Crime supr n.

2,

chap

7

26 In his commentary

upon this paper at Stirling my commentator, Dudley

Knowles,

appeared

to take

this view before

eventually abandoning it.

See Knowles,

Unjusti-

fied

Retribution , in this issue

p

50

[Is L l

Vol

2 7


18/36

JUSTIFYING

RETRIBUTIVISM

epistemology.

Such

rationalism

leaves

wholly

unexplained how first

principles

are to

be justified,

since they cannot

be

deductively

justified

as following from

some even

more

basic, more first principles. Al-

though

some

may find

self-evidence , God's word , or transcendental

deductions

to

be

acceptable

starting

points

in justifying moral belief,

I

do not.

First principles

can

be justified

only

by showing

that

they

imply, but are not

implied by both secondary principles

and

particular

judgments

that we

accept as

true.

To deny

this

as

a form ofjustification

would be

to

deny the

possibility

of justifying any

first principle,

and

to

deny

that

would

be to deny

the justifiability of any

judgment

that

is

itself

justified

by such

first

principles

(which, on the rationalist view

of

justification

here considered, are ll moral judgments).

The history of rationalist justification schemes in ethics

should

not

make

one sanguine about

finding

indubitable

first principles.

The

absence of such

self-evident

first principles

is

alone enough

to dispatch

the objection

here considered to my

mode

of

justifying the retributive

principle. If retributivism is a first principle of morals,

then it neither

needs nor can have any other form of justification but the form I

have

offered.

Still,

the retributive

principle

seems to be

part and

parcel of

yet more

general

principles, so

it

is worth pausing

briefly to examine

this alternative

possibility.

The

battleground

of

theory known

as

the

philosophy of

punishment

is

littered with the corpses of

supposed

general

principles

from

which

the retributive

principle is supposed to

follow. Giving

an

offender

the

punishment he deserves

solely

because he deserves it

has been

said

to

follow

from a

principle that:

debts

to

society must be repaid (coupled

with the

further

idea

that

crime

creates a debt and

punishment

is a

form

of

repayment); wrongs

must

be

annulled (coupled

with the further idea

that

punishment annuls them); God's anger must

be placated (coupled

with the further thoughts that God is a retributivist

and that human

punishment placates

her); wrongdoing must be

denounced

(coupled

with the further

belief

that

punishment

is

the appropriate form of

denunciation

despite

there

being

other,

less

draconian

forms);

etc.

7

David Dolinko correctly

observes that

in justifying

retributivism I have

taken the

path of avoiding the

common

retributivist metaphors

alto-

gether

rather than

seeking

to

unpack

and develop them .

8

I have taken

27 For

a more complete taxonomy, see J.G. Cottingham, Varieties of

Retribution

1979)

29

Philosophical Q. 238-46.

28

Dolinko, supr n. 3, at

555.

Nos 1-2, 1993]


19/36

ISRAEL

LAW

REVIEW

this

path

because

I

see

very

little

that

is

correct

(or in

some

cases

even

intelligible)

in

these

views.

2 9

One more

general

principle

that does not seem clouded

n

metaphor

is

a general principle

of

desert.

30

Such

a

principle

arises

because of

what

might be

called

the secondary

moral

rights and duties we all

possess.

I have

a primary duty not

to

break

(most

of) my

promises

and another

primary duty not

to injure or kill (most of) my fellow persons; I have a

primary

right to keep (most of) the fruits of my

own

labors. I also

have

what I shall

call

secondary duties and rights respectively,

a duty

either

to

perform

my promise, even

belatedly,

or

in

some other way to

put the promisee

in

as good a position as he

would

have been in

had

I

kept

my

promise;

a

duty

to correct

the

injustice that

I

have caused in

injuring

or

killing

another by making amends

in whatever way I

can,

including

compensation;

and a right to

have any

who

deprive

me

of

the

fruits

of

my own

labors

either

to

give

those

things

back (or

pay

me

their

value where

they cannot

be given back). It is

breach of

these

secondary

duties

th t

warrants the judgment that I ought to

be made

to

keep

my

promise or pay

its

equivalent,

or

that

I

ought

to

be

made

to

compensate

the

victims

of

my

violence; it is violation of the duty correlative

of

my

secondary rights

that

warrants

the

judgment

that others ought

to

be

made to

give me back my property or its equivalent. We idiomatically

make

this ought judgment using

the

word

desert :

the promise-

breaker

deserves contract sanctions against him, the tort-feasor

de-

serves tort law

sanctions

against

him,

and the laborer

creating a

thing

deserves

to

have those incidents of ownership

in that thing that

are

distinctive

of

property

rights.

The

unity

ofa

principle

of desert covering all of these situations

does

not lie in the species

of

legal

coercion

to

be justified, although there

is

in fact

some overlap

in

contract, tort, and property remedies. Nor

does

the unity of

the principle

lie in

the intrinsic goodness

of

giving

people

what they deserve

for then

the term desert would

mean

no more

9 An exception may

be

Herbert

Morris'

well-known

principle

of

fairness

which may

well survive the by-now voluminous criticisms made

of it.

See

Morris,

Persons and

Punishmente 1968) 52 The Monist 475-501.

30

This

is to take

up the

suggestion I offered in

The

Moral Worth

of Retribution ,

su r

n.

1 at 182, 186.

[Is.L.R.

Vol. 27


20/36

JUSTIFYING

RETRIBUTIVISM

than,

intrinsically

right .

31

Rather,

the unity of

the

principle of desert

is to be found in

the common

conditions

of culpability

and of

wrongdoing

(or in their

praiseworthy

analogues,

of meritability

and

of right

doing ).

I

refer

to

the

elements

of

voluntariness,

causation, and

justi-

fication,

and

of

intention and excuse,

out

of

which wrongdoing

and

culpability

respectively are

constituted.

There

is a

general

principle of

desert

in

that

the

conditions

of wrongdoing

and

culpability

are

similar.

3

2

The retributive

principle that

offenders should

be punished

be-

cause

and

only

because

they have culpably done

wrong is an instance

of

this

more

general principle

of

desert.

We

all have

primary

duties

not

to

do

the

sort of acts

that malum

in

se criminal

statutes

prohibit. We

lso

have

secondary

duties

to allow

ourselves

to be made

to suffer if

we

have

violated these primary

duties.

The trigger for these

secondary

duties is

again

our culpability in

violating

the

primary

duties

that

define

wrongdoing.

Although it takes considerably

more

detail

than

this

to

sketch

the

unitary

principle

of desert, my

present

interest is in

a

challenge pre-

sented

to

such a principle,

however

it

may

be

filled

out.

I

refer

to

the

objection

that desert

does not

give

a

sufficient reason

to

punish. As

put

by David Dolinko, who

advances a form

of

this

objection:

In general,

the

sense

of

'fittingness'

or 'propriety'

inherent

in someone's getting

what

she

deserves

is

a

very

poor

guide to whether

it

is

permissible

to

give

her

what

she

deserves .

3

Dolinko's main

ground for

reaching

this

conclusion

(about

the

incon-

clusiveness

of desert)

lies

in

his ideas

of

rights.

Dolinko correctly

observes that

each of

us has

rights

generally

not to

be

made to suffer.

It

is

thus

entirely

possible

for

a person to deserve

treatment

which

it

would

nevertheless

violate

his rights

to be

given ,

as

Dolinko

also

31

I

am doubtlessly

regimenting

the usage

of desert* here

a

bit

so as to

give it this

descriptive

content.

Some

of

the

ordinary usages of desert

are such th t it

can mean

no

more

than intrinsically right' or

intrinsically

ought

to be done .

Such broad,

purely

evaluative usages

of desert account

for the

sense

of Mackie and

others

that

desert'

is

an

empty concept.

See

n.

23,

supr

32 For

an unpacking of

the

notions

of wrongdoing

and

culpability

in the criminal

law

context,

see Moore,

A Theory of

Criminal

Law Theories ,

supr n.

15.

For

a

comparison

of some of the

conditions

of culpability

in

contract

and

criminal

law, see

H. L.

A

Hart,

Legal

Responsibility

and Excuses ,

in his

unishmentand

espon

sibility

(Oxford, 1968 .

33

Dolinko,

supra n. 3, at 543-44,

558; Dolinko,

supra n. 8

t 1627-30.

Nos 1-2, 1993]


21/36

ISRAEL

LAW

REVIEW

o serves

4

One might,

for example,

believe

that l x

talionis

is

what each

offender deserves

so that the

torturer deserves

to be tortured; yet

one

might

well

believe

that

the offender has a

right not to

be tortured

anyway. Dolinko's

hoped-for

conclusion is

that therefore,

desert is in

general

a poor

guide to

answering

the

question

of

what

we should

do

to

offenders.

3 5

Dolinko's

general

conclusion does

not,

of

course,

follow

from his

correct

observation

that we

all have

rights

not to

be deprived of

our

liberty, not

to be tortured,

not to be

killed, etc.

It

would

be

a crude

caricature

of

the

retributivist

to

make

him

monomaniacally

focused

on

the achievement

of retributive

justice. The

retributivist

like anyone

else

can admit

that there are

other intrinsic

goods,

such

as

the goods

pro-

tected

by

the

rights

to life, liberty,

and

bodily integrity.

The retributivist

can also admit

that sometimes some

of

these rights

will

trump

the

achieving

of retributive

justice

(as

in

my l x

talionis example

above).

Yet to

assert

that

all

such rights trump

the

achieving

of retributive

justice

is simply

to beg

the question

against

the

retributivist, whose

essential

thesis

is

that

they

do

not. Particularly

with

regard

to

the

rights

to

life

and

to liberty,

culpably doing

wrong forfeits

such rights

so

as

to achieve retributive justice,

which

one

can accept without thinking

that all rights

of offenders

are so forfeited.

Dolinko's

attempt to

remedy this first

defect of

his

analysis

intro-

duces

a

second. Dolinko

correctly

quotes me for the

retributivist

point

that

'the

moral

desert

of

an

offender is a sufficient reason

to

punish

him

or her'. 1

6

Because

the

retributivists

must show that

giving

an

offender

what

she deserves does not

violate any rights

not forfeited

by the

offender's culpable

wrongdoing

Dolinko would

admonish

me

and

other

retributivists to acknowledge

that

'criminals

deserve

to suffer' is

simply

not

a sufficient explanation

of

why

we are

morally

permitted

to inflict

such

suffering

on

them .

37

Here

Dolinko

fails to

attend

to

the

context-sensitivity

of

any talk

about

sufficient conditions ,

my own

included. Sufficiency

is like

qualitatively

identical

in

that

we

almost

never

use

such

words

or

phrases literally.

What

we

always

mean

when we say

of two distinct

particulars

that

they are qualitatively identical, is

that

within

some

34

Dolinko, supra n.

8 at 1629

35 Ibid.

36 Ibid.

t

1628 (quoting

Moore, 'The

Moral

Worth of

Retributivism,

supra n.

1 at

180 .

37 Ibid. at

1630

[Is.L.R.

Vol. 27


22/36


23/36

ISR EL L W REVIEW

that

there

is

any gap

here.

As we

have

seen,

the

general

principle

of

desert asserts that the

culpable

wrongdoing

(desert)

of X is

a sufficient

reason

to visit

various

legal

sanctions

on

K

As we

have also seen,

the

context-sensitive

use of sufficient here

allows for the

possibility

that

there

are

overriding

reasons

(such as non-forfeited

rights

of X) not to

visit

these

legal sanctions

on X But this

last

possibility presents a gap

only when

it

becomes actualized. And

what are the

overriding reasons

not

to make the culpable

promise-breaker

restore the

promisee to the

status quo ante to make

the culpable tort-feasor compensate those

whom he

has

hurt,

and

to

make

the criminal suffer his

deserved

pun-

ishment?

Certainly the general

rights

of all of

us not to

suffer such

sanctions provide us

no

such overriding reasons,

since we forfeit

such

rights

precisely

by the

culpable

wrongdoing that

constitutes desert.

It might seem that this difference

between

Dolinko

and

myself

comes

down to

a

burden

of proof issue, Dolinko

urging me to

show that there

are no

such

overriding

reasons

and I urging Dolinko to show that there

are. If so,

surely

the burden

of

proof is on the critic

of

retributivism

on

this

issue.

After all,

once

it

is admitted

that

desert constitutes a

prima

f cie reason to punish, surely it is incumbent on those

who urge us not

to punish

to show us

why we

should

stay

our hand.

It might

also

seem that I have

done

little

to justify

the

more

general

principle

of

desert,

even

if

I

have

shown

how the

retributive principle

follows

from

it.

But

of course, that objection can be

raised

ad infinitum

for any

answer that

might

be given. That

is

the

problem with

thinking

th t justification

has to be a matter

of

deducing the

principle

to be

justified from

one that is

yet

more general.

We must give up

that picture

of

how

justification

must

proceed.

Once we

do

so,

then

whether

we

are

justified in

believing

in retributivism

cannot depend on

our

finding

some

yet

more

general principle with

which to justify it.

3.

A

common objection to

a

coherentist justification of moral prin-

ciples

goes

like this:

since the data being

cohered

into more

general

principles are our

own judgments and feelings, the principles

that

result

are

only

a

coherent

expression of

our own sentiments.

They can

have

no claim to

ethical

objectivity given

the

nature

of

the data out of which

they are constructed.

s

Joel Feinberg

moore, michael - justifying retributivism.pdf

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