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Criminal Law and Philosophy

, Volume 5, Issue 1, pp 73–86 | Cite as

A Retributive Argument Against Punishment

  • Greg Roebuck
  • David WoodEmail author
Original Paper

Abstract

This paper proposes a retributive argument against punishment, where punishment is understood as going beyond condemnation or censure, and requiring hard treatment. The argument sets out to show that punishment cannot be justified. The argument does not target any particular attempts to justify punishment, retributive or otherwise. Clearly, however, if it succeeds, all such attempts fail. No argument for punishment is immune from the argument against punishment proposed here. The argument does not purport to be an argument only against retributive justifications of punishment, and so leave open the possibility of a sound non-retributive justification of punishment. Punishment cannot be justified, the paper argues, because it cannot be demonstrated that any punishment, no matter how minimal, is not a disproportionate retributive response to criminal wrongdoing. If we are to hold onto proportionality—that is, proportionality as setting a limit to morally permissible punishment—then punishment is morally impermissible. The argument is a retributive argument against punishment insofar as a just retributive response to wrongdoing must be proportionate to the wrongdoing. The argument, that is, is concerned with proportionality as a retributive requirement. The argument against punishment is set out on the basis of a familiar version of the ‘anchoring problem’, according to which it is the problem of determining the most severe punishment to anchor or ground the punishment scale. To meet the possible criticism that we have chosen a version of the anchoring problem particularly favourable to our argument, various alternative statements of the anchoring problem are considered. Considering such statements also provides a more rounded view of the anchoring problem. One such alternative holds that the punishment scale must be anchored not just in the most severe punishment, but in the least severe punishment as well. Other alternatives hold that it is necessary and sufficient to anchor the punishment scale in any two punishments, neither of which needs to be the most or least severe punishment. A further suggestion is that one anchoring point anywhere along the punishment scale is sufficient, because it is possible to ‘project’ from such a point, so as to determine the correlative punishments for all other crimes, and so derive a complete punishment scale. Finally, the suggestion is considered that one can approach the issue of a punishment scale ‘holistically’, denying any distinction between anchoring and derived (or ‘projected’) punishments.

Keywords

Punishment Retributivism Proportionality Ordinal Cardinal Commensurability 

Notes

Acknowledgments

We thank Kat Brazenor, Angela Hendley-Boys, Zach Hoskins, Bruce Langtry, Alice Muhlebach, Laura Schroeter, Lucia Zedner and the Journal’s anonymous referees for useful comments and helpful suggestions. Earlier versions of the paper were presented at conferences of the American Law and Society Association, the Australian Society of Legal Philosophy and the North American Society of Social Philosophy. The financial support of the Australian Research Council is gratefully acknowledged.

References

  1. Ashworth, A. (2010). Sentencing and criminal justice (5th ed.). Cambridge, UK: Cambridge University Press.Google Scholar
  2. Benn, S. I., & Peters, R. S. (1959). Social principles and the democratic state. London, UK: George Allen and Unwin.Google Scholar
  3. Braithwaite, J., & Pettit, P. (1990). Not just deserts. Oxford, UK: Oxford University Press.Google Scholar
  4. Duff, A. (1999). Punishment, communication and community. In M. Matravers (Ed.), Punishment and political theory (pp. 48–68). Oxford, UK: Hart.Google Scholar
  5. Duff, A. (2001). Punishment, communication and community. Oxford, UK: Oxford University Press.Google Scholar
  6. Feinberg, J. (1965). An expressive theory of punishment. Monist, 49, 397–423.Google Scholar
  7. Fish, J. M. (2008). An eye for an eye: Proportionality as a moral principle of punishment. Oxford Journal of Legal Studies, 28, 57–71.CrossRefGoogle Scholar
  8. Galligan, D. J. (1981). The return to retribution in penal theory. In C. F. H. Tapper (Ed.), Crime, proof and punishment: Essays in memory of rupert cross (pp. 144–171). London, UK: Butterworths.Google Scholar
  9. Gardner, G. (1958). The purposes of punishment. Modern Law Review, 21, 117–129.Google Scholar
  10. Kaufman, W. (1973). Without guilt and justice: From Decidophobia to autonomy. New York, USA: Peter H. Wyden, Inc.Google Scholar
  11. Kleinig, J. (1973). Punishment and desert. The Hague, Netherlands: Nijhoff.Google Scholar
  12. Kolber, A. (2009). The subjective experience of punishment. Columbia Law Review, 109, 182–236.Google Scholar
  13. Raz, J. (1982). The claims of reflective equilibrium. Inquiry, 25, 307–330.CrossRefGoogle Scholar
  14. Sadurski, W. (1985). Giving desert its due. Dordrecht, Netherlands: Reidel.Google Scholar
  15. Shafer-Landau, R. (1996). The failure of retributivism. Philosophical Studies, 82, 289–316.CrossRefGoogle Scholar
  16. Shafer-Landau, R. (2000). Retributivism and desert. Pacific Philosophical Quarterly, 81, 189–214.CrossRefGoogle Scholar
  17. Shaw, W. (1980). Intuition and moral philosophy. American Philosophical Quarterly, 17, 127–134.Google Scholar
  18. Singer, P. (1974). Sidgwick and reflective equilibrium. Monist, 58, 490–517.Google Scholar
  19. Tasioulas, J. (2006). Punishment and repentance. Philosophy, 81, 279–322.CrossRefGoogle Scholar
  20. Van Ness, D. (1995). Anchoring just deserts. Criminal Law Forum, 6, 507–517.CrossRefGoogle Scholar
  21. Vincent, N. (2010). On the relevance of neuroscience to criminal responsibility. Criminal Law and Philosophy, 4, 77–98.CrossRefGoogle Scholar
  22. von Hirsch, A. (1985). Past or future crimes: Deservedness and dangerousness in the sentencing of criminals. New Brunswick, USA: Rutgers University Press.Google Scholar
  23. von Hirsch, A. (1990). Proportionality in the philosophy of punishment: From ‘why punish?’ to ‘how much?’. Criminal Law Forum, 1, 259–290.CrossRefGoogle Scholar
  24. von Hirsch, A. (1992). Proportionality in the philosophy of punishment. Crime and Justice, 16, 55–98.CrossRefGoogle Scholar
  25. von Hirsch, A. (1993). Censure and sanctions. Oxford, UK: Clarendon Press.Google Scholar
  26. von Hirsch, A., & Ashworth, A. (2005). Proportionate sentencing. Oxford, UK: Oxford University Press.CrossRefGoogle Scholar
  27. Waldron, J. (1992). Lex talionis. Arizona Law Review, 34, 25–51.Google Scholar
  28. Walker, N., & Padfield, N. (1996). Sentencing: Theory, law and practice (2nd ed.). London, UK: Butterworths.Google Scholar
  29. Wood, D. (2010). Punishment: Nonconsequentialism. Philosophy Compass, 5, 470–482.CrossRefGoogle Scholar
  30. Zedner, L. (1998). Sentencing young offenders. In A. Ashworth & M. Wasik (Eds.), Fundamentals of sentencing theory (pp. 165–186). Oxford, UK: Clarendon.Google Scholar

Copyright information

© Springer Science+Business Media B.V. 2010

Authors and Affiliations

  1. 1.Faculty of LawUniversity of MelbourneMelbourneAustralia

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