Abstract
Numerous retributivists hold that deserved punishment has intrinsic value. A number of puzzles regarding that claim are identified and discussed. An alternative, more Kantian account of intrinsic value is then identified and the ways in which legal punishment might be understood to cohere with it are explored. That account focuses on the various ways in which legal punishment might be persons-respecting. It is then argued that this Kantian account enables us to solve or evade the puzzles generated by the other intrinsic value account.
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Notes
For critical discussion of such thought experiments, see Hanna (2014).
For his remarks about intrinsic value fitting into a consequentialist framework, see Moore (1997: 157–158). For his “threshold deontology,” see 158 and especially 669–736.
Granted, talk about the loss of some intrinsic goods being “made up for” by the greater abundance of others might seem to suggest that these good are somehow fungible, such that they can be measured along some common dimension (say, their tendency to produce pleasure or happiness in those who experience them). However, it might be possible to make rough comparative judgments about two worlds with distinct intrinsic goods such that we can say that one of them is better than another of them. For instance, if two worlds have roughly the same amount of intrinsic value of one kind, but one of the worlds also has quite a bit of intrinsic value of another kind, it seems plausible to say that the second world is better, and this in spite of the fact that the two goods are not fungible.
This might raise problems for value theorists who hold that intrinsic value or goodness is essentially non-relational, something that things have “in isolation” from other things or states of affairs. For discussion of such accounts, see Bradley (2006: 112–113). See also Korsgaard (1983), Kagan (1998), and Bernstein (2001). Since such a view is contested, I will not pursue it further in this context.
Moore has recently affirmed something like this in noting how deserved punishment produces ancillary goods (Moore 2016: 348).
On this, see Duus-Otterström (2013). However, Duss-Otterström’s concerns seem mostly with how retributivists should think about proportional punishment in cases in which we are not sure whether we are assigning slightly too much punishment, or slightly too little.
On the ways in which the youthfulness of many criminal offenders compromises their susceptibility to deterrent threats, see Feld (2008).
Some crime reductionists (Andenaes 1966) have defended a “moral reinforcement” approach to legal punishment, according to which it reduces crime by shoring up the commitment to moral norms against predation or violence. Though space does not permit me to address this contention in detail, I am skeptical about how much role legal punishment plays in producing and strengthening citizens’ moral commitments, especially as compared with parents, schools, churches, and other social influences.
Consider the well-known psychological phenomenon of “loss aversion,” according to which the subjective weight of prospective losses is greater than the subjective weight of prospective gains. On this, see Kahneman and Tversky (1979).
By contrast, throwing victims a parade or compensating them for the wrongs done to them will not communicate effectively with offenders and might even send them the damaging message that they can commit crimes and have others repair the damage.
The notion of “assurance” employed here shares some affinities with John Braithwaite and Philip Pettit’s claim that people want assurance of their dominion (Braithwaite and Pettit 1990). However, Braithwaite and Pettit’s account of legal punishment is thoroughly consequentialist.
There is debate about how comfortable retributivists should be with legal punishment given its more or less inevitable tendency to convict and punish some innocents. For useful discussion, see Duus-Otterström (2010). As Duus-Otterström’s discussion shows, there may be ways for retributivists to persist in endorsing legal punishment despite its risks, although none of them are as straightforward and unproblematic as retributivists might hope.
Kant, in places, seemed to insist that offenders be treated, as far as possible, in accordance with the impermissible maxims on which they acted (Kant 1996: 105). I assume that such an approach is untenable and does not follow, of necessity, from a commitment to proportionality in punishment.
Hence, even if legal sanctions have a partly deterrent function, so long as they are not disproportionate and the prohibitions they are attached to are publicized in advance, it seems incorrect to say that threatening them is like the “act of a man who lifts a stick to a dog” (Hegel 1965: 246).
Legal sanctions can deny the moral agency of offenders by, among other things, treating them as if they are sick or in need to treatment, rather than as moral beings who have violated fundamental norms. Some (Morris 1976: 41; Duff 1986: 263) have argued, in this light, that offenders have a “right to be punished,” meaning that they have a right to be recognized as responsible beings, unless, of course, the state can demonstrate that they are not.
Such an account seems to me to offer a plausible response to Dolinko’s (1997: 518-519) contention that the intrinsic value of deserved punishment creates little warrant for the state to act. Few doubt that the state has a central role to play in securing and symbolically communicating the importance of the basic moral rights of persons.
For useful discussion of criminal harms, see von Hirsch and Jareborg (1991).
Or worse, sexual assaults against women were often not punished at all.
The Kantian approach might help Moore to make better sense of his “threshold deontology,” especially if the Kantian approach can be interpreted to yield strongly presumptive desert constraints on sentencing. Moore’s threshold deontology has been criticized by Alexander (2000). However, Alexander’s critique arguably makes more sense if the intrinsic value of deserved punishment is interpreted in GEMoorean fashion and is thus seen to be something that can be aggregated and maximized.
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I would like to thank Marcia Baron and two anonymous reviewers for very helpful comments on previous drafts.
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Lippke, R.L. Two Ways of Thinking About the Value of Deserved Punishment. J Ethics 23, 387–406 (2019). https://doi.org/10.1007/s10892-019-09301-6
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DOI: https://doi.org/10.1007/s10892-019-09301-6