Dressler, p.37-47: Retributive Justifications
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.