Three Mistakes about Retributivism

Abstract

Retributive theories of punishment maintain that criminal guilt merits or deserves punishment, regardless of considerations of social utility. Such theories may be put forth for either of two reasons: (1) It could be argued (e.g. by a Moral Sense theorist) that the claim is a primitive and unanalysed proposition which is morally ultimate. Every ethical theory necessarily involves at least one such primitive (e.g. ‘happiness is good’, ‘freedom is to be respected’, etc.) and the retributivist may be offering this as his candidate. We can, he may argue, just intuit the “fittingness” of guilt and punishment. (2) It might be maintained (as it was, I believe, by both Kant and Hegel) that the retributivist claim is demanded by a general theory of political obligation which is more plausible than any alternative theory. Such a theory will typically provide a technical analysis of such notions as crime and punishment and will thus not regard the retributivist claim as an indisputable primitive. It will be argued for as a kind of theorem within the system.