Well, here I am. After a couple of months hiatus (my longest ever) I am now back and ready to blog. As mentioned yesterday, I'm going to be integrating the content of this blog more directly with my ongoing research and teaching. This means you can expect to find a lot more posts dealing with applied ethics, the philosophy of responsibility, the philosophy of evidence, and game theory. Don’t worry though, I’m hoping to do some posts on the philosophy of religion when I get a chance (maybe I’m being naive).
Anyway, for my first set of substantive posts, I’m going to be looking at retributive justice and the death penalty. This is part of an attempt to prepare for some lectures I’ll be doing later in the year on the ethics of the death penalty. I was going to launch directly into a discussion of the arguments for and against the death penalty (once again using the book Contemporary Debates in Applied Ethics
as my guide), but since those arguments rely, in part, on an understanding of retributive justice, I thought I’d back-up and consider that concept in a little more depth.As a result, I’m going to spend the rest of this post focusing on a paper by the legal philosopher Michael Moore (not to be confused with the documentary film director of the same name). The paper is the following:
- “Justifying Retributivism” (1993) 27 Israel Law Review 15
The title hints at Moore’s own philosophical leanings (he has been one of the most prominent defenders of retributivism in the recent past) but in the article he does a good job clarifying the nature of retributivism, and presenting arguments that can be offered in its defence. I’m going to look at both of these in what follows.
1. What is Retributivism?
We can begin with a simple definition. As Moore puts it, “retributivism is the view that we ought to punish offenders because and only because they deserve punishment.” (p. 15) In addition to this, retributivism is usually taken to include a proportionality constraint. In other words, the retributivist usually believes that the punishment of the guilty must be proportionate to their level of wrongdoing. Since I’m ultimately going to be considering the death penalty, it’s worth flagging at this point that death is taken by some to be the proportionate punishment for murder and perhaps some other offences.
Moore thinks that there are a number of ambiguities present in this basic definition. These need to be addressed and he spends several pages trying to do so. We can summarise the results of this exercise as follows:
- The definition of retributivism appeals to the concept of desert ( i.e. the idea that the connection between an agent and his act sometimes deserves a certain kind of treatment). All theories of punishment, retributive and non-retributive, make some sort of appeal to this concept. What distinguishes the retributivist is his belief that desert is both a necessary and sufficient condition for punishment. What’s more, the retributivist also typically holds that desert is an exclusive condition for punishment, i.e. no other condition will warrant punishment. Punishment may well have as a consequence the deterrence of wrongdoing or the increase of the aggregate sum of happiness in a society, but these are happy accidents, not alternative grounds for punishment.
- Like all moral concepts, retributivism, if accepted, places moral demands on both state officials and citizens. But what is the nature of these demands? Sometimes it is believed that retributivism merely makes punishment of the guilty morally permissible - something we can do if we wish, but which are not obliged to do. Moore thinks this is too weak. He thinks that retributivism actually makes punishment of the guilty morally obligatory. In other words, it gives us a duty to punish the guilty.
- A popular distinction — one endorsed by John Rawls and HLA Hart — is that between the justification for particular acts of punishment and the justification for institutions of punishment as a whole. Hart, for example, held that particular acts of punishment could be justified on retributive grounds, while institutions of punishment could be justified on more utilitarian grounds. Moore doesn’t buy this distinction, he thinks the justification for both must be the same. He has a reason for this that will become apparent when we consider his arguments in favour of retributivism.
- Retributivism is often thought to be justified solely on deontological grounds. But Moore thinks this is need not be the case. The retributivist believes that punishment is an intrinsic good (one among many possible intrinsic goods that need to be promoted) and so it is conceivable that he could justify punishment on consequentialist grounds. Nevertheless, Moore considers himself to be a deontologist about punishment and this comes through in his subsequent arguments.
With these clarifications out of the way, we can proceed to consider how one goes about arguing in favour of retributivism.
2. Arguing for Retributivism
Moore identifies three possible ways in which the retributivist can argue for his position:
(a) The Conceptual Argument : The retributivist can argue that his is the only acceptable theory of punishment because the concept of punishment, properly understood, can only be applied to those instances in which people are harmed because they deserve it. This argument would involve a typical exercise in conceptual analysis. Such an analysis is unlikely to be persuasive since even if it is correct it leaves open the deeper question of whether punishment is something we wish to have at all.
(b) The Functional/Interpretive Argument : The retributivist can argue that his theory offers the best possible explanation (or “interpretation”) for the institutions of punishment that we currently happen to have. This argument obviously suffers from the same flaw as the conceptual argument, viz. it leaves open the question of whether we should have these institutions in the first place.
(c) The Moral Argument : The retributivist can argue that his theory tells us what the morally correct reponse to certain acts of wrongdoing actually is. This kind of argument will appeal to whatever criteria or standards we take to justify moral beliefs. So if we are consequentialists, the argument will involve a cost-benefit analysis pointing to the respective goods that can be achieved by only punishing those who deserve to be punished; alternatively, if we are non-consequentialists, we appeal to whatever standards we use to justify actions as being intrinsically right.
Moore is, perhaps unsurprisingly, solely concerned with the third style of argument and his goal is to provide a version of it. This raises the obvious question: what standards will he appeal to when justifying the moral propriety of retributivism? At this point in the article, Moore launches into a discussion of the distinction between intrinsic and instrumental goods, on the one hand, and first- and second-order principles in ethics, on the other. It’s pretty interesting stuff, but I’m going to skip over much of it.
The basic idea is that the intrinsic/instrumental distinction is a metaphysical one concerning different types of value, whereas the first-order/second-order distinction is an epistemic one concerning the way in which we come to know of ethical truths. Moore holds that first-order principles are reached via an abductive inference from more particular second- or indeed third-order principles arising from particular cases. In other words, he is a kind of ethical intuitionist, in that he assigns considerable weight to intuitive judgments about particular cases, and uses these judgments to develop more general ethical principles. Frances Kamm is one of the more vigorous proponents of this approach to ethics.
This obviously has implications for the overall argument offered in favour of retributivism. Moore thinks that retributivism is a first-order principle, describing an intrinsic good, that we are categorically obliged to honour in our actions, even if this means we fail to maximise the overall good. Given his intuitionistic predilections, he justifies this conclusion by first considering particular cases, then deriving conclusions about intrinsic good and first-order principles from our judgments about these cases, and then showing why the principle arrived at cannot be followed in a consequentialist manner. I’ll consider this argument the next day.
— and it perhaps is to Altman’s credit that he rejects this framing device. He argues, instead, that the right to produce and access pornography is part and parcel of a more general liberal right to sexual autonomy.
