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Responsibility and Punishment pp 127–148Cite as

Forgiveness, Apology, and Retributive Punishment

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Part of the book series: Library of Ethics and Applied Philosophy ((LOET,volume 34))

Abstract

Much has been made in philosophy of law regarding whether or not punishment is the state’s duty, instead of being its mere right. However, it need not be shown by the retributivist that the state has a duty to punish. For retributivism itself does not entail such a view, though some versions of retributivism (e.g., Immanuel Kant’s) espouse the claim that punishment is the perfect duty of the state. But as Jeffrie G. Murphy argues, all that needs to be shown by the retributivist (or by the utilitarian, if I am correct) is that the punishment of criminals is the state’s right, i.e., that it is justified for the state to exercise hard treatment on duly convicted criminals if it so chooses. This is sufficient to ground both the institution of punishment as well as the practice of punishment. As argued in Chap. 6, the retributivist need not be committed to the position that each and every crime must be punished (a claim entailed by the view that the state has a perfect duty to punish offenders) in order for the state to be justified in inflicting punishment on offenders. Instead, retributivists might argue, as I do, that not every crime must be punished, perhaps because of practical considerations of resource capability or because some crimes are not worth punishing (such as the case of a child walking home from school who walks off of the sidewalk and barely onto someone’s property, thereby trespassing onto that property but causing no damage or harm) or because both compensation coupled with an appropriate warning will best resolve the matter.

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Notes

  1. 1.

    Jeffrie G. Murphy and Jean Hampton, Forgiveness and Mercy (Cambridge: Cambridge University Press, 1988), p. 180.

  2. 2.

    J. Angelo Corlett, “Making More Sense of Retributivism,” Philosophy, 78 (2003), pp. 277–285; “Making Sense of Retributivism,” Philosophy, 76 (2001), pp. 77–110.

  3. 3.

    I have in mind here criminal acts of legal minors, wherein compensation by the parents or the minor child and a warning may well serve as sufficient punishment for the minor offense such as theft of inexpensive items from a store, minor property damage, etc.

  4. 4.

    See, for instance, Zoltan Balazs, “Forgiveness and Repentance,” Public Affairs Quarterly, 14 (2000), pp. 105–127; Joseph Beatty, “Forgiveness,” American Philosophical Quarterly, 7 (1970), pp. 246–252; Piers Benn, “Forgiveness and Loyalty,” Philosophy, 71 (1996), pp. 369–383; Cheshire Calhoun, “Changing One’s Heart,” Ethics, 103 (1992), pp. 76–96; Richard S. Downie, “Forgiveness,” The Philosophical Quarterly, 15 (1965), pp. 128–134; A. C. Ewing, The Morality of Punishment with Some Suggestions for a General Theory of Ethics (Montclair: Patterson-Smith, 1970); Joel Feinberg, Doing and Deserving (Princeton: Princeton University Press, 1970); Eve Garrard and David McNaughton, “In Defence of Unconditional Forgiveness,” Proceedings of the Aristotelian Society, 103 (2002), pp. 39–60; Kathleen A. Gill, “The Moral Functions of an Apology,” The Philosophical Forum, 31 (2000), pp. 11–27; Trudy Govier, Forgiveness and Revenge (London: Routledge, 2002); “Forgiveness and the Unforgivable,” American Philosophical Quarterly, 36 (1999), pp. 59–75; Trudy Govier and Wilhelm Verwoerd, “The Promise and Pitfalls of Apology,” Journal of Social Philosophy, 33 (2002), pp. 67–82; Joram Graf Haber, Forgiveness (Savage: Rowman & Littlefield Publishers, 1991); Pamela Hieronmi, “Articulating an Uncompromising Forgiveness,” Philosophy & Phenomenological Research, 62 (2001), pp. 529–555; Margaret Holmgren, “Forgiveness and the Intrinsic Value of Persons,” American Philosophical Quarterly, 30 (1993), pp. 341–352; “Self-Forgiveness and Responsible Moral Agency,” Journal of Value Inquiry, 32 (1998), pp. 75–91; H. J. N. Horsbrugh, “Forgiveness,” Canadian Journal of Philosophy, 4 (1974), pp. 269–282; Martin Hughes, “Forgiveness,” Analysis, 35 (1975), pp. 113–117; Paul M. Hughes, “On Forgiving Oneself: A Reply to Snow,” The Journal of Value Inquiry, 28 (1994), pp. 557–560; “What is Involved in Forgiving?” Philosophia (Israel), 25 (1997), pp. 33–49; Aurel Kolnai, “Forgiveness,” Proceedings of the Aristotelian Society, LXXIV (1973–1974), pp. 91–106; Berel Lang, “Forgiveness,” American Philosophical Quarterly, 30 (1994), pp. 105–117; Howard McGary, “Achieving Democratic Equality: Forgiveness, Reconciliation, and Reparations,” The Journal of Ethics, 7 (2003), pp. 93–113; Kathleen D. Moore, Pardons (Oxford: Oxford University Press, 1989); Herbert Morris, “Murphy on Forgiveness,” Criminal Justice Ethics, 7 (1988), pp. 15–19; Jeffrie G. Murphy, “Forgiveness and Resentment,” Midwest Studies in Philosophy, 7 (1982), pp. 503–516; Getting Even (Oxford: Oxford University Press, 2003); “A Rejoinder to Morris,” Criminal Justice Ethics, 7 (1988), pp. 20–22; Jeffrie G. Murphy and Jean Hampton, Forgiveness and Mercy (Cambridge: Cambridge University Press, 1988); William R. Neblett, “Forgiveness and Ideals,” Mind, 83 (1974), pp. 269–275; Joanna North, “The ‘Ideal’ of Forgiveness: A Philosopher’s Exploration,” in Robert D. Enright and Joanna North, Editors, Exploring Forgiveness (Madison: University of Wisconsin Press, 1998), pp. 15–34; “Wrongdoing and Forgiveness,” Philosophy, 62 (1987), pp. 499–508; David Novitz, “Forgiveness and Self-Respect,” Philosophy & Phenomenological Research, 58 (1998), pp. 299–315; R. J. O’Shaughnessy, “Forgiveness,” Philosophy, 42 (1967), pp. 336–352; Norvin Richards, “Forgiveness,” Ethics, 99 (1988), pp. 77–97; Robert Roberts, “Forgivingness,” American Philosophical Quarterly, 32 (1995), pp. 289–306; Geoffrey Scarre, After the Evil (Burlington: Ashgate, 2004); Tara Smith, “Tolerance and Forgiveness: Virtues or Vices?” Journal of Applied Philosophy, 1 (1997), pp. 31–42; Nancy Snow, “Self-Forgiveness,” The Journal of Value Inquiry, 28 (1994), pp. 75–80; I. Thalberg, “Remorse,” Mind, 72 (1963), pp. 545–555; P. Twambley, “Mercy and Forgiveness,” Analysis, 36 (1976), pp. 84–90; Nigel Walker, “The Quiddity of Mercy,” Philosophy, 70 (1995), pp. 27–37; John Wilson, “Why Forgiveness Requires Repentance,” Philosophy, 63 (1988), pp. 534–535; and Keith E. Yandell, “The Metaphysics and Morality of Forgiveness,” in Robert D. Enright and Joanna North, Editors, Exploring Forgiveness (Madison: University of Wisconsin Press, 1998), pp. 35–45.

  5. 5.

    Murphy and Hampton, Forgiveness and Mercy, p. 159.

  6. 6.

    Murphy and Hampton, Forgiveness and Mercy, p. 158.

  7. 7.

    Peter Strawson, “Freedom and Resentment,” in John Martin Fischer and Mark Ravizza, Editors, Perspectives on Moral Responsibility (Ithaca: Cornell University Press, 1993), pp. 45–66.

  8. 8.

    This definition is consistent with the construal of forgiveness found in Ewing, The Morality of Punishment, p. 31; Moore, Pardons, p. 184.

  9. 9.

    Feinberg, Doing and Deserving, pp. 70–71.

  10. 10.

    Murphy and Hampton, Forgiveness and Mercy, pp. 15, 24.

  11. 11.

    For an analysis of the concept of harm, see Joel Feinberg, Harm to Others (Oxford: Oxford University Press, 1984). For an analysis of the concept of harmful wrongdoing, see Joel Feinberg, Harmful Wrongdoing (Oxford: Oxford University Press, 1990).

  12. 12.

    Murphy and Hampton, Forgiveness and Mercy, p. 33. Also see North, “The ‘Ideal’ of Forgiveness: A Philosopher’s Exploration,” p. 17.

  13. 13.

    Haber, Forgiveness, p. 11.

  14. 14.

    Downie, “Forgiveness,” p. 128.

  15. 15.

    Kolnai, “Forgiveness,” p. 92.

  16. 16.

    North, “Wrongdoing and Forgiveness,” p. 505.

  17. 17.

    North, “Wrongdoing and Forgiveness,” p. 506.

  18. 18.

    Downie, “Forgiveness,” p. 130.

  19. 19.

    Scarre, After Evil, p. 17.

  20. 20.

    Garrard and McNaughton, “In Defence of Unconditional Forgiveness.”

  21. 21.

    Scarre, After Evil, p. 17.

  22. 22.

    Govier, Forgiveness and Revenge, p. 77.

  23. 23.

    Murphy and Hampton, Forgiveness and Mercy, p. 24.

  24. 24.

    Murphy, Getting Even, p. 35. However, Murphy does state that “…it is not unreasonable to make forgiveness contingent on sincere repentance” (p. 36).

  25. 25.

    Murphy and Hampton, Forgiveness and Mercy, p. 42.

  26. 26.

    Murphy and Hampton, Forgiveness and Mercy, pp. 42–43.

  27. 27.

    Murphy and Hampton, Forgiveness and Mercy, pp. 52–53.

  28. 28.

    See Chap. 2.

  29. 29.

    Murphy and Hampton, Forgiveness and Mercy, p. 55. Hampton provides a more precise account of the nature of resentment (Murphy and Hampton, Forgiveness and Mercy, p. 57). She even distinguishes, rather incisively, between resentment and malicious hatred (Murphy and Hampton, Forgiveness and Mercy, pp. 70–71).

  30. 30.

    Roberts, “Forgivingness,” p. 299.

  31. 31.

    Downie, “Forgiveness;” North, “Wrongdoing and Forgiveness.”

  32. 32.

    Kolnai, “Forgiveness,” p. 98.

  33. 33.

    Horsbrugh, “Forgiveness,” p. 272.

  34. 34.

    Balazs, “Forgiveness,” pp. 118f.

  35. 35.

    Govier and Verwoerd, “The Promise and Pitfalls of Apology,” p. 67.

  36. 36.

    Murphy and Hampton, Forgiveness and Mercy, pp. 83–84.

  37. 37.

    Murphy and Hampton, Forgiveness and Mercy, p. 151.

  38. 38.

    Murphy and Hampton, Forgiveness and Mercy, p. 148.

  39. 39.

    Murphy and Hampton, Forgiveness and Mercy, pp. 150–152.

  40. 40.

    Murphy and Hampton, Forgiveness and Mercy, p. 158.

  41. 41.

    Robert Nozick, Philosophical Explanations (Cambridge: Harvard University Press, 1981), pp. 366–368.

  42. 42.

    Joel Feinberg, “What, if Anything, Justifies Legal Punishment?” in Joel Feinberg and Hyman Gross, Editors, Philosophy of Law, 5th Edition (Belmont: Wadsworth Publishing Company, 1995), pp. 613–617.

  43. 43.

    Murphy and Hampton, Forgiveness and Mercy, p. 119.

  44. 44.

    Neblett, “Forgiveness and Ideals,” p. 269.

  45. 45.

    A similar but independently arrived at point can be found in Scarre, After Evil, p. 83: “There is an important distinction to be drawn between forgiveness as an act and as the state brought about by that act.”

  46. 46.

    O’Shaughnessy, “Forgiveness,” p. 350.

  47. 47.

    A similar point is made in Balazs, “Forgiveness,” p. 120, except that Balazs argues that “inasmuch as repentance is a moral duty, forgiveness is one, too” (Balazs, “Forgiveness,” p. 126). I proffer a different notion of forgiveness, as we shall see. Rather than being a moral duty, genuine forgiving (made as a response to a genuine apology) is morally supererogatory. However, that forgiveness requires apology (e.g., repentance) is found in Wilson, “Why Forgiveness Requires Repentance,” p. 534: “Genuine forgiveness does require repentance on the part of the wrongdoer, and must be … a bilateral and not just a unilateral operation.” Failure of the wrongdoer to apologize, Wilson and I concur, serves as an obstacle to that wrongdoer experiencing true forgiveness. This does not prevent, I would add, her victim from forgiving her for whatever reasons. Those who deny that forgiveness requires an apology include Benn, “Forgiveness and Loyalty,” p. 382.

  48. 48.

    For a philosophical analysis of the concept of remorse, see I. Thalberg, “Remorse,” pp. 545–555.

  49. 49.

    North, “The ‘Ideal’ of Forgiveness: A Philosopher’s Exploration,” pp. 30–33.

  50. 50.

    Thalberg, “Remorse,” p. 554.

  51. 51.

    Thalberg, “Remorse,” p. 546.

  52. 52.

    Unless, of course, a purely utilitarian theory of punishment is assumed.

  53. 53.

    See Benn, “Forgiveness and Loyalty,” p. 373. “While the ideal result of forgiveness is reconciliation, it seems plain that the reconciliation of victim and offender cannot, itself, be an essential element in the victim forgiving the offender” (Yandell, “The Metaphysics and Morality of Forgiveness,” p. 44). I might add that it has yet to be demonstrated by independent argument that “the ideal result of forgiveness is reconciliation” of victim and offender.

  54. 54.

    Govier, Forgiveness and Revenge, pp. 46–47.

  55. 55.

    Murphy and Hampton, Forgiveness and Mercy, p. 154; Richards, “Forgiveness,” p. 87. That forgiving is a discretionary right is noted in Hughes, “Forgiveness,” p. 113.

  56. 56.

    Richards, “Forgiveness,” p. 80.

  57. 57.

    “Necessarily” because it is possible to not forgive one unjustifiably, particularly when the one refusing to forgive knows that her not forgiving her perpetrator (whom the victim knows has offered a genuine apology) will result in harm experienced by the perpetrator that far outweighs the victim’s experienced harm from her perpetrator.

  58. 58.

    Murphy and Hampton, Forgiveness and Mercy, pp. 16–19.

  59. 59.

    Murphy and Hampton, Forgiveness and Mercy, p. 21.

  60. 60.

    J. D. Mabbott, “Punishment,” Mind, 48 (1939), p. 158. For a similar view, see Benn, “Forgiveness and Loyalty,” pp. 376f; Holmgren, “Forgiveness and the Intrinsic Value of Persons,” p. 341. For a denial of this claim based on the assumption of third party forgiveness, see Neblett, “Forgiveness and Ideals,” p. 270.

  61. 61.

    Perhaps attitude forgiveness is what some newly freed slaves in the U.S. engaged in when they “forgave” their former masters [See Howard McGary and Bill Lawson, Between Slavery and Freedom (Bloomington: Indiana University Press, 1992)]. One likely reason for these instances of forgiving was for the newly freed slaves to be able to get along with others in a society that still largely denied them the full rights of citizenship, as Howard McGary and Bill Lawson so incisively explain.

  62. 62.

    That is, concerning the primary victim of her crime.

  63. 63.

    Benn, “Forgiveness and Loyalty,” p. 383.

  64. 64.

    For a similar view of third party forgiving, see Benn, “Forgiveness and Loyalty,” pp. 374–375.

  65. 65.

    Murphy and Hampton, Forgiveness and Mercy, p. 17.

  66. 66.

    Claudia Card, “Mercy,” The Philosophical Review, 81 (1972), pp. 182–207.

  67. 67.

    For a philosophical discussion of such rules, see Walker, “A Quiddity of Mercy,” pp. 32–37.

  68. 68.

    R. A. Duff , Punishment, Communication, and Community (Oxford: Oxford University Press, 2001), pp. 75–77.

  69. 69.

    Duff , Punishment, Communication, and Community, p. 77.

  70. 70.

    Duff , Punishment, Communication, and Community, p. 78.

  71. 71.

    This Kantian idea was noted in Chap. 5 and can be traced to Herbert Morris , “Persons and Punishment,” The Monist, 52 (1968), pp. 476–501.

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  1. Department of Philosophy, San Diego State University, San Diego, CA, USA

    J. Angelo Corlett

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Corlett, J.A. (2013). Forgiveness, Apology, and Retributive Punishment. In: Responsibility and Punishment. Library of Ethics and Applied Philosophy, vol 34. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-0776-4_8

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