An Explanation of Retribution
Andrew Oldenquist, Ohio State University
Found in the Journal of Philosophy, pgs 464-478. http://www.jstor.org/stable/2026803
(Call for retributive justice is universal.)
The universal insistence upon retribution for grievous crimes is deeply felt, intractable, and largely
independent of utilitarian considerations.
No one who reads the accounts of courtroom reactions of crime victims, or of the parents of the
children whose murderers have been convicted (or acquitted), can doubt that the world demands
retribution for criminal harm—not just compensation or restitution, which often is impossible, but
retribution. After every conviction the victims, or their relatives, applaud, or cry with relief, and
otherwise indicate that the world could never be right again until the one who hurt them so terribly
received his due.
(Moral communities require retributive justice.)
Whereas the desire for retribution does not prove it right, I believe there are arguments that explain the function
and nature of retribution in such a way that together they provide some considerations in favor of morally
accepting retributive punishment. The first argument aims to establish the social need for retribution, on the grounds that
humans necessarily live in moral communities and the existence of moral communities depends on the
acceptance of retributive justice.
(1)Humans are innately social animals who can flourish and achieve their full humanity only in society.
(2) A human society is a moral community.
(3) A moral community is such that members hold one another personally accountable for harm to
fellow members and to the common good.
(4) To hold persons personally accountable for harm to fellow members and to the common good is to
consider them deserving of blame and punishment.
(5) To consider persons deserving of blame and punishment is morally to accept retribution.
(6) Humans can flourish and achieve their full humanity only if they morally accept retribution.
This is the essence of retribution: holding one another accountable.
(They are only seen as not part of the moral community if we do not see their act as immoral.
If we do, retribution is consequently necessary for a moral community.)
Putting crime in a completely separate category from misdeeds we blame without the aid of law leads us to demoralize crime,
which is more clearly a mistake than the decriminalization of immorality: when criminals are not seen simply as great
violators of the mutual moral expectations in our daily social intercourse, but instead are viewed as
mere harmful agents, they are removed from our moral community. They are removed because of a
philosophical mistake that alienates them more than they were before. Retribution consequently is intrinsic to the
cohesion of a moral community.
(We exact retribution for the moral community and not for the criminal.)
I suggest, on the contrary, that a moral community exacts retribution for its own good and not primarily
to inform, connect, cure, use, or to send any kind of message to the criminal. We would not punish
Hitler, Josef Mengele, or a brutal rapist-slayer, primarily in order to rectify their relation to the universe.
We would kill or imprison them because of what they did to us, and have no self-respecting alternative.
(We can’t stop retributive justice even if it isn’t achieving utilitarian goals of deterrence.)
In the words of criminologist
Martin Levin, “Our penal and judicial systems serve other goals than lowering the rate of recidivism. And
the tension among these goals cannot be resolved on utilitarian grounds; one reason is that the
punishment of criminals is, in part, a symbolic activity that expresses our ultimate values.”
Like a bear dance or a funeral, it contributes to a society’s identity as a living moral community.
(Retributive justice is not at all costs.)
Second, moral communities as I construe them are multiple, nested, overlapping, and generate only
prima facie obligations for their members. Any obligation to one’s community (Whether family, nation,
or species) can be overridden by stronger obligations to other moral communities, or by moral principles
independent of communities.
(Retributive justice is morally permissable.)
C. W. K. Mundle, for example, offers such a premise. He says, “The fact that a person had committed a moral
offense provides a sufficient reason for his being made to suffer.”
(Retributive justice is a moral concept.)
The solution lies in seeing that judicial
retribution is not mere revenge but revenge that warrants its new name
by satisfying certain social conditions. I suggest that when certain empirical conditions are met,
retaliation, “getting even,” turns into retributive justice, a moral concept. I call this justice as sanitized
revenge. The conditions are that punishment:
(a)
(b)
(c)
(d)
Is applied by officials who are not friends or relatives of the victim or defendant;
Is applied consistently for similar cases, and hence is predictable;
Is applied in accord with publically promulgated procedures and penalties.
Is decided and pronounced in a context of ritual and ceremony, thus conveying that a
community and not just an individual is speaking.
(e) Is decided after due deliberation and not in the heat of passion.
(Retributive justice is not revenge, and is moral.)
In distinguishing retributive justice from revenge, we do not take the revenge out of retribution—this
cannot be done—but show how circumscribing and institutionalizing retaliation turns it into a moral
category, warranting a new name.
(If our community is to be moral, we must morally accept retribution. If not, we could not support
morality or a moral community.)
Of course, if we agree that we ought to have viable moral communities, then it follows that we ought
morally to accept retribution: but not even from this can one deduce that anyone deserves retribution.
What would follow if every claim that someone is morally accountable and deserves punishment is false,
notwithstanding that holding people accountable in this sense is essential to the life of a moral
community?