Dressler, p.37-47: Retributive
Justifications
Kant
There is no benefit in
punishing someone unless they are guilty.
There is no situation in which, according to Kant, it is right not to
punish someone who is guilty. No other
concern can be exchanged for justice.
For Kant, justice and morality have nothing to do with
consequences. They are moral (categorical) imperatives.
Notes
and Questions
1. If we believe
that meting out justice is an absolute imperative which should never compete
with any other interest, then it is our duty to punish the last murderer. Kant would argue strenuously with the notion
that such an action constitutes the infliction of pain for no good reason. The good reason for inflicting pain is to
fulfill society’s duty to seek justice.
Kant would also say that hatred has nothing to do with it.
2. Given all the
facts in the thought experiment, unlikely as they are, I would strongly favor
D’s release. The only remaining reason
for keeping D in prison under those circumstances would be the vengeful
pleasure of V. If V cannot curb her
hatred, given the facts of the situation, that is her own fault. The overall balance of costs and benefits
would be more favorable if V forgives D, however, the benefit to D would far
exceed the cost to V even if V does not forgive.
Stephen, p. 39
Jimmy
Fitzjimmy is pro-hatred. JFS thinks it’s
natural, healthy and morally right that people should hate criminals.
Dressler, p. 40
J.D.
divides retributivism into two branches:
1. Negative
retributivism – An innocent person ought not be punished
2. Positive
retributivism
a. Assaultive –
e.g. Stephen, hating criminals
b. Protective –
Morris, criminals have the right to be punished
Murphy, p. 41
Is
hatred ever justified? Murphy says in
order to answer this question, you must consider cases where someone has been
greatly hurt by a completely unrepentant perpetrator.
Murphy
argues that resentment is essentially an expression of self-respect.
Murphy
further argues that if it is moral to do something, it must be moral to desire
to do that thing. Therefore, if it
is moral to cause pain to someone if you are punishing them, it must be moral
to desire to punish that person.
Morris, p. 42
Here
are Morris’s four propositions about rights:
1. People have a
right to punishment.
2. The right to
punishment is a fundamental human right.
3. This
fundamental right is “natural, inalienable, and absolute”.
4. The denial of
the right to punishment entails the denial of all rights and duties.
Morris
justifies punishment based on three principles:
1. People who
comply with society’s rules should not have to incur burdens that law breakers
don’t have.
2. If we want “benefits
and burdens” to be distributed fairly, we ought to be able to impose benefits
and burdens to even the score when necessary.
3. We ought to
punish those who have thrown the system of benefits and burdens off balance,
thus restoring equilibrium.
Morris
is the foremost exponent of protective retributivism.
Notes
and Questions
1. Benedict is a
classic assultive retributivist. The
statements of Gilmore suggest that being subject to a punishment is an
opportunity to repay a debt. Morris
would argue that we, as human beings, have the right to repay that debt.
2. I would say
that I’m still a strict utilitarian and the retributivist view doesn’t appeal
to me. I don’t believe I have the right or
responsibility to reprove another person for their conduct, rather, I believe I
am primarily responsible for ensuring that my own conduct is moral. I approve of punishment only on a functional
basis.
3. I have no
problem with punishing an innocent person in principle. However, that doesn’t mean I believe it is
right for an individual to choose to frame another individual for a crime.