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Fairness-Based Retributivism Reconsidered

Abstract

In this paper, I defend fairness-based retributivism against two important objections, the no-benefit objection and the social injustice objection. I argue that the theory can defeat the no-benefit objection by developing an account of how crimes can be sources of unfairness by inflicting losses on people, and that it can blunt the social injustice objection by toning down the theory’s distributive aspirations. I conclude that fairness-based retributivism, contrary to received wisdom, merits further attention from legal and political philosophers.

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Notes

  1. ‘The fair play theory of punishment’ is arguably the more common name, but I will follow Boonin (2008) in speaking about FBR, as I find it more accurate.

  2. Duff, longstanding sympathetic critic of FBR, for example, claims that the objections against the theory are ‘conclusive’ (2001, p. 22).

  3. For the different questions a theory of punishment should address, see Davis (2009).

  4. Notable defenses of FBR include Murphy (1971), Finnis (1980), Sher (1987), Dagger (1993, 2008), Hoskins (2010), Stichter (2010), Kramer (2011).

  5. For the fair play theory of political obligation, see Arneson (1982) and Klosko (2004). For criticism, see Simmons (2001) and McDermott (2004).

  6. It should be noted that Murphy has since abandoned FBR. This is described in Murphy (2007).

  7. Standard retributivism corresponds to what Berman (2011) in a useful conceptual discussion calls instrumentalist retributivism.

  8. On public values and coercion, see Rawls (1993).

  9. Dagger (2008) explicitly defends this mixed view, and it is implicit in Morris (1968).

  10. For a comprehensive inventory of the objections, see Boonin (2008, pp. 120–143).

  11. Directly after this passage, Duff goes on to make the second and quite different point that people should not find it burdensome to refrain from murder and rape. This seems entirely true, but the type of fairness in focus here tracks actual preferences, not moralized ones. If people generally did find it burdensome to forgo murder, it would make sense to say that a murderer gains an unfair advantage even though forgoing murder should not be burdensome.

  12. This benefit could be described as ‘not necessarily of loot or psychological satisfaction, but of having pursued one’s own purposes even when the law required one to refrain from doing so’ (Finnis 1999, p. 102).

  13. But Dagger also argues, perhaps inconsistently, that different crimes can be differently unfair in that they offend more or less severely against the standing of someone else. This is his ‘direct argument,’ see Dagger (2008, pp. 270–271).

  14. For an argument that the general compliance response is in fundamental tension with the retributive idea that punishment is only justified when proportionate to the offender’s negative desert, see Boonin (2008, p. 126) and Duff (2008, p. 280).

  15. There are other ‘particular compliance responses.’ Davis (1993) equates the unfair advantage of a crime with the price that a one-off license to commit that crime with impunity would fetch at an auction. Kramer (2011) argues that the unfair advantage is instead measured by society’s asking price for such a license. I will set these proposals aside since I am skeptical of the idea of defining unfair advantage in terms of how far society would go to prevent a particular crime.

  16. For an argument attacking Sher’s idea that offenders gain extra liberty, see Kramer (2011). Kramer argues that offenders do not free themselves from the prohibitions they violate, and their post-offense moral liberty is if anything smaller than it was before.

  17. See, for example, Klosko (2004, pp. 113–121). How this ‘distribution requirement’ is to be fleshed out is a complicated matter, but for our purposes here it is not necessary to get into this question.

  18. Note that this does not commit FBR to a literalist lex talionis of the kind that has been roundly rejected by legal philosophers. Here, too, we might employ the usual ideas about proportionality (von Hirsch and Ashworth 2005).

  19. In this paragraph and the next, I am discussing objections raised by a reviewer. I am grateful to him or her for challenging me to clarify these issues.

  20. One reviewer argues that the loss-based account has a problem explaining why there should be punishment for inchoate crimes such as conspiracy or attempt, as these crimes cause no harm. This seems correct on an intuitive understanding of harm, but since I do not suggest that the loss-based account should replace the benefit-based account, these cases could instead be handled by the latter. The same could be said for ‘victimless’ crimes such as tax evasion, which FBR has traditionally been found well-equipped to handle.

  21. Levelling down is when equality is achieved by making someone worse off and no one better off (on some relevant metric). Whether levelling down can be desirable is a topic of intense discussion in the theory of distributive justice, especially with regard to telic egalitarianism. See, for example, Temkin (2003) and Parfit (2012).

  22. Compare here with Temkin’s (2003) egalitarian defense of levelling down. Temkin notes that critics of levelling down assume that individual wellbeing is all that matters to evaluating outcomes. But, if one posits the impersonal value of equality, a levelled-down outcome is better in one respect—it is more equal. FBR could similarly say that punitive levelling down has (impersonal) value because it protects or promotes fairness.

  23. Many theorists who by no means embrace FBR have also argued that the state’s right to punish is undermined by its tolerating or endorsing social injustice, see, for example, Duff (2007) and Tadros (2009). See, also, Holroyd (2010) and the collection of papers in Heffernan and Kleinig (2000).

  24. Murphy describes this gentlemen’s picture as one where ‘men are viewed as being part of a community of shared values and rules. The rules benefit all concerned and, as a kind of debt for the benefits derived, each man owes obedience to the rules’ (1973, p. 240).

  25. But FBR can and should recognize that there are limits to how generally unjust a society can become and still retain the right to punish, either because sufficiently deep injustice cancels the political obligation to obey the law (Duff 2001, pp. 181–185) or because it removes the moral standing to punish (Tadros 2009). But the fact that sufficiently unjust societies lose their right to punish does not mean that the right is lost in every society that is less than fully just. This is because legitimacy (understood as rightful authority) is more easily satisfied than justice (Dworkin 2011, pp. 321–322).

  26. I take it that this is Anderson’s (1997, p. 18) point when she distinguishes between ‘abstract’ and ‘concrete’ fairness. A related point is that the extent to which people benefit from laws seems to depend on particular facts about them. Homeowners, for example, seem to benefit more from laws against burglary than the homeless. This point is pursued by Burgh (1982), who argues that it is an additional reason to question FBR.

  27. The same assumption of equality is also present in defenses of the fair play theory of political obligation. Klosko, for example, argues that ‘the benefits of law and order are enjoyed by everyone alike’ and that the major cost of law and order (obeying the law) is ‘a requirement imposed on all alike’ (Klosko 2004, p. 73).

  28. I assume here that the reader is familiar with the distinction and its many nuances. For excellent discussion, see Weinrib (1991–1992) and Ripstein (1998). It should be noted that, while rectificatory justice is often associated with private law, it has general applicability: even punishment may be construed as a species of rectificatory justice as long as punishment is taken to be a case of righting wrongs. For a conceptual scheme over different manifestations of rectificatory justice (distinguishing between punishment, compensation, restitution, and disgorgement), see Goodin (2013).

  29. But the rectificatory interpretation, too, can and should recognize that the state may lose its right to enforce rectificatory justice by tolerating and endorsing social injustice; see footnote 25.

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Acknowledgments

Previous versions of this paper were presented to audiences at the Universities of Geneva, Gothenburg, Roskilde, Stockholm, and Uppsala. I am grateful for all the advice and comments I received on those occasions. The research is part of the project Fair-Play Retributivism and the Problem of Punishment, which is funded by the Swedish Research Council (Grant Number 421-2011-1559).

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Correspondence to Göran Duus-Otterström.

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Duus-Otterström, G. Fairness-Based Retributivism Reconsidered. Criminal Law, Philosophy 11, 481–498 (2017). https://doi.org/10.1007/s11572-015-9382-1

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Keywords

  • Fairness
  • Fair play
  • Political obligation
  • Punishment
  • Retributivism