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Desert of What? On Murphy’s Reluctant Retributivism

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Abstract

In Punishment and the Moral Emotions, Jeffrie Murphy rejects his earlier, strong endorsements of retributivism. Questioning both our motivations for embracing retributivism and our views about the basis of desert, he now describes himself as a “reluctant retributivist.” In this essay, I argue that Murphy should reject retributivism altogether. Even if we grant that criminals have negative desert, why should we suppose that it is desert of suffering? I argue that it is possible to defend desert-based theories of punishment that reject this view of the object of desert. I consider, but reject, expressivist versions of such a theory.

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Notes

  1. Jeffrie G. Murphy, Punishment and the Moral Emotions: Essays in Law, Morality, and Religion (New York: Oxford, 2012), 223.

  2. Ibid., xii–xiii.

  3. Ibid., 86.

  4. Christopher Bennett, The Apology Ritual: A Philosophical Theory of Punishment (New York: Cambridge, 2008).

  5. T. M. Scanlon, What We Owe to Each Other (Cambridge, MA: Belknap/Harvard, 1998), Ch. 6.

  6. Murphy, Punishment and the Moral Emotions, 38.

  7. Douglas Husak, “Retributivism In Extremis,” Law and Philosophy 32 (2013): 3–31. Husak’s definition of retributivism allows for theories that incorporate consequentialist elements, which I prefer to call “mixed theories.”.

  8. Joel Feinberg, "The Expressive Function of Punishment," in Doing and Deserving: Essays in the Theory of Responsibility (Princeton: Princeton, 1970).

  9. Some might say, “intentionally inflicted,” but I think that would leave out the interesting case of guilt feelings, which do not seem to be under the wrongdoer’s direct control, yet which are frequently associated with retribution. See, for example, Michael S. Moore, "The Moral Worth of Retribution," in Responsibility, Character, and the Moral Emotions: New Essays in Moral Psychology, ed. Ferdinand Schoeman (New York: Cambridge, 1987).

  10. Murphy, Punishment and the Moral Emotions, 123.

  11. Herbert Morris, "Persons and Punishment," Monist 52 (1968); Jeffrie G. Murphy and Jean Hampton, Forgiveness and Mercy (New York: Cambridge, 1988), Ch. 4; see also Jean Hampton, "Correcting Harms Versus Righting Wrongs: The Goal of Retribution," UCLA Law Review 39 (1992). These theories are presented as plausible contenders at Murphy, Punishment and the Moral Emotions, 122–127.

  12. Morris’s “unfair advantage” argument suggests that punishing the criminal is a way of taking away the unfair advantage that the criminal claimed in allowing herself a freedom (e.g., to steal) that others deny themselves in deference to the law or social contract. However, this view shockingly implies that what is wrong with, say, rape is not the harm done to the victim but the cost incurred by the other people in society who refrain from raping. Murphy notes this and other objections to the “unfair advantage” theory at Murphy, Punishment and the Moral Emotions, 38n. Hampton’s theory suggests that the imposition of suffering is justified by the role it plays in counter-balancing the evidence, which the wrongful act presents, that the wrongdoer is morally more significant than her victim. Unfortunately, in order for punishment to play this counteracting, equalizing role, Hampton would have to accept the offensive premise that suffering can legitimately serve as evidence of the moral worth of persons. See Linda Radzik, Making Amends: Atonement in Morality, Law, and Politics (New York: Oxford, 2009), Ch. 2.

  13. Murphy, Punishment and the Moral Emotions, 86.

  14. Quoted in ibid., 19.

  15. Ibid., 43–65.

  16. Ibid., 28–29.

  17. Ibid., 29.

  18. Ibid., 82.

  19. Ibid., 86–87, 174.

  20. Ibid., 39.

  21. Ibid.

  22. T. M. Scanlon, "Giving Desert Its Due," Philosophical Explorations 16, no. 2 (2013): 102.

  23. Ibid., 104.

  24. Owen McLeod, "Desert," The Stanford Encyclopedia of Philosophy (2008), <http://plato.stanford.edu/archives/win2008/entries/desert/>.

  25. See, for example, Gerry Johnstone and Daniel W. Van Ness, eds., The Handbook of Restorative Justice (Cullompton: Willan, 2007).

  26. Herbert Fingarette, “Punishment and Suffering,” Proceedings and Addresses of the American Philosophical Association 50, no. 6 (1977): 510. In correspondence, Murphy has endorsed Fingarette’s account of suffering, which is indeed more appealing than a version of retributivism that endorses the infliction of pain as such. However, it is worth noting that Fingarette agrees with the critics of retributivism that intentionally humbling a person’s will, where no good is to be served by it, “is in itself an evil” (ibid., 513). Retribution, he argues, may be only “indirectly” justified, as a “necessary cost” of the institution of law (ibid.).

  27. Such views build on a certain reading of P. F. Strawson, "Freedom and Resentment," Proceedings of the British Academy 48(1962). See, for example, Scanlon, "Giving Desert Its Due," 105–110; and Zac Cogley, "Basic Desert of Reactive Emotions," Philosophical Explorations 16, no. 2 (2013).

  28. See, for example, Feinberg, "The Expressive Function of Punishment."; R. A. Duff, Trials and Punishments (New York: Cambridge, 1991); and Hampton, "Correcting Harms Versus Righting Wrongs."

  29. Feinberg, "The Expressive Function of Punishment," 116.

  30. Ibid.

  31. Hampton, "Correcting Harms Versus Righting Wrongs," 1695–1696.

  32. Murphy, Punishment and the Moral Emotions, 39.

  33. Scanlon, "Giving Desert Its Due," 103–104.

  34. Ibid., 103.

  35. Ibid., 108.

  36. Joel Feinberg, "Justice and Personal Desert," in Doing and Deserving: Essays in the Theory of Responsibility (Princeton: Princeton, 1970), 60.

  37. Derk Pereboom and Maureen Sie, "Introduction" (Special Issue on Basic Desert), Philosophical Explorations 16, no. 2 (2013).

  38. Strawson, "Freedom and Resentment."

  39. Scanlon, "Giving Desert Its Due," 105.

  40. J. M. Coetzee, Disgrace (New York: Viking Press, 1999), 58, 66; quoted in Murphy, Punishment and the Moral Emotions, 149.

  41. W. H. Henley, “Invictus,” quoted in Catherine Robson, Heart Beats: Everyday Life and the Memorized Poem (Princeton: Princeton, 2012), 219.

  42. Murphy, Punishment and the Moral Emotions, 151.

  43. This sort of concern for the victim is a major motivation for Hampton, "Correcting Harms Versus Righting Wrongs"; and Bennett, The Apology Ritual.

  44. For helpful comments and discussion of the issues in this paper, I would like to thank Justin Coates, Douglas Husak, Colleen Murphy, Jeffrie Murphy, Robert R. Shandley, and George Sher.

References

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  • Coetzee, J. M. Disgrace. New York: Viking Press, 1999.

  • Cogley, Zac. “Basic Desert of Reactive Emotions.” Philosophical Explorations 16, no. 2 (2013): 165–177.

  • Duff, R. A. Trials and Punishments. New York: Cambridge, 1991.

  • Feinberg, Joel. “The Expressive Function of Punishment.” In Doing and Deserving: Essays in the Theory of Responsibility, 95–118. Princeton: Princeton, 1970.

  • Feinberg, Joel. “Justice and Personal Desert.” In Doing and Deserving: Essays in the Theory of Responsibility, 55–94. Princeton, N.J. : Princeton, 1970.

  • Fingarette, Herbert. “Punishment and Suffering.” Proceedings and Addresses of the American Philosophical Association 50, no. 6 (1977): 499–525.

  • Hampton, Jean. “Correcting Harms Versus Righting Wrongs: The Goal of Retribution.” UCLA Law Review 39 (1992): 1659–1702.

  • Husak, Douglas. “Retributivism In Extremis.” Law and Philosophy 32 (2013): 3–31.

  • Johnstone, Gerry, and Daniel W. Van Ness, eds. The Handbook of Restorative Justice. Cullompton: Willan, 2007.

  • McLeod, Owen. “Desert.” The Stanford Encyclopedia of Philosophy (2008), <http://plato.stanford.edu/archives/win2008/entries/desert/>.

  • Moore, Michael S. “The Moral Worth of Retribution.” In Responsibility, Character, and the Moral Emotions: New Essays in Moral Psychology, edited by Ferdinand Schoeman. New York: Cambridge, 1987.

  • Morris, Herbert. “Persons and Punishment.” Monist 52 (1968): 475–501.

  • Murphy, Jeffrie G., and Jean Hampton. Forgiveness and Mercy. New York: Cambridge, 1988.

  • Murphy, Jeffrie G. Punishment and the Moral Emotions: Essays in Law, Morality, and Religion. New York: Oxford, 2012.

  • Pereboom, Derk, and Maureen Sie. “Introduction.” (Special Issue on Basic Desert) Philosophical Explorations 16, no. 2 (2013): 97–100.

  • Radzik, Linda. Making Amends: Atonement in Morality, Law, and Politics. New York: Oxford, 2009.

  • Robson, Catherine. Heart Beats: Everyday Life and the Memorized Poem. Princeton: Princeton, 2012.

  • Scanlon, T. M. What We Owe to Each Other. Cambridge, MA: Belknap/Harvard, 1998.

  • Scanlon, T. M. “Giving Desert Its Due.” Philosophical Explorations 16, no. 2 (2013): 101–116.

  • Strawson, P. F. “Freedom and Resentment.” Proceedings of the British Academy 48 (1962): 187–211.

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  1. Texas A&M University, College Station, TX, USA

    Linda Radzik

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Radzik, L. Desert of What? On Murphy’s Reluctant Retributivism. Criminal Law, Philosophy 11, 161–173 (2017). https://doi.org/10.1007/s11572-014-9356-8

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