Explain and Discuss the Retributive Theory of Justice

Explain and discuss the retributive theory of punishment The retributive theory of punishment is a theory of punishment justified on the grounds that people who have done harm to others, deserve to have harm done unto themselves. The focus here is on desert. In addition to desert it is morally fitting that a person who has done some wrong, or has breached the law should suffer in proportion to his crime. So for example, if someone has committed murder then it follows from this that they themselves should be sentenced to death. The idea is that the state of affairs would be better if a wrongdoer was punished proportionally when compared to a state of affairs in which he does not receive his just desert. The retributive theory of punishment is indifferent to the consequences, even if these consequences are beneficial or bring about some good. Not only is this theory indifferent to consequences of punishment, but it is contemptuous of consequentialist theories of punishment as it undermines the value and autonomy of the wrongdoer. In this essay I will be giving a comprehensive account of the retributive theory of punishment as exemplified by Kant. In doing so I will state how Kant understands this theory as being the most justified form of punishment, paying particular attention to his notion of agent autonomy and respect. After giving a brief account to Kant’s theory of punishment I will show there is little if any difference between retribution and revenge. Following this I will be comparing his theory with the consequentialist view that punishment provides us with some form of beneficial outcome. I will show that consequentialism has two beneficial outcomes. The first being deterrence in which others are dissuaded in acting immorally in fear of being caught and punished. The second being rehabilitation which claims that if the manner of punishment is administered properly it may improve the character of the wrongdoer. Once these have been explained they will be critically analyzed, so that we can see what the implications of each has on both the wrongdoer and society itself. Hopefully by the end of this is essay I will have demonstrated some of the merits of Kant’s theory of retributivism but show that irreversible punishments such as capital punishment cannot be defended due to the fallibility of human reasoning, As such what I want to argue for is a softer form of consequentialism that emphasizes a sort of checked rehabilitation that incorporates Kant’s view that people should be treated with dignity and respect, regardless of their crime. The Kantian concept of retributive punishment can be understood, in its broadest sense, as recompense by the criminal to the victim. It is a theory of punishment based on the Christian precept “an eye for an eye, a tooth for a tooth” (Exodus 21:24), insofar as it is morally necessary that the wrongdoers be made to suffer in proportion to their offences. Hill refers to this form of punishment as “deep retributivism” and claims it is “a fundamental principle in need of no further justification” (1999: 409). Understood like this, punishment seems indistinguishable from revenge. Indeed Wendell Holmes declared that punishment was “only vengeance in disguise” (1963: 39). To distinguish between revenge and punishment Nozick provides us with a novel way of understanding punishment: “Wrong puts things out of joint in that the acts and persons are unlinked with correct values; this is the disharmony introduced by wrongdoing. Punishment does not wipe out the wrong, the past is not changed, but the disconnection with value is repaired (though in a second best way); nonlinkage is eradicated. Also, the penalty wipes out or attenuates the wrongdoer’s link with incorrect values, so that he now regrets having followed them or at least is less pleased than he did (1983: 379)” This gives us reason to believe that punishment has a use other than revenge as it seeks to promote our reconnection with value; this incidentally is a consequentialist motive for punishment which cannot coincide with Kant’s deontological reasoning. It seems then, that it is hard to distinguish between punishment and revenge within Kantian retributive punishment based on Nozick’s explanation. Indeed, it seems that Kant had no intention of distinguishing the two terms when we examine the following quote: “When someone who delights in annoying and vexing peace-loving folk receives at last a right beating, it is certainly an ill ,but everyone approves of it and considers it as good in itself” (1997: 470). This suggest that Kant assumes a necessary connection between wrongdoing and suffering at the core of his moral theory. This picture of Kant’s understanding of punishment presents us with a dark, unattractive concept of justice. Indeed, many are often surprised by what Kant has to say on this subject when positive aspects of Kant’s moral theory are praised and met with reverence. There is however, some merit to be found in his theory of ethics. These merits will become apparent in the following paragraph where we consider consequentialism as an alternative account of punishment. The consequentialist theory of punishment supposes that punishment of wrongdoers brings about desirable consequences. These consequences may benefit the victim, the criminal, or society itself. The first form of consequence that I will be mentioning is that of deterrence. This states that punishment is an unpleasant and painful thing, assuming that we want to avoid unpleasant and painful things then we will take steps to avoid punishment. If doing something wrong is associated with being punished then we will avoid it. Thus we will be deterred from doing something wrong as we will be punished. This argument seems to be valid and its premises sound, the question then arises: is it appropriate? On the face of it, this type of punishment is one that seems to be appropriate, perhaps owing to its practical application or its familiarity to us through parenting. However such a consequence of punishment should be met with caution. The reason for this is that punishing and rewarding people in such a way overrides the agent’s capacity to reason morally and pays no respect to their own autonomy. People can be shaped and molded into whatever the punishing authority desires of them. This is exemplified by Aldous Huxley in his novel Brave New World (2007) in which the World State conditions people into liking what they are required to do, making it impossible for them to dislike their inescapable social destiny. The second form of consequence is rehabilitation. This form of consequence aims to benefit the wrongdoer so that they improve in their behavior. The idea of improving the behavior of an agent again raises a red flag. Once again we encounter this theme of punishment as improving or shaping ones character so that they better fit into their role in society. Of course we should not always meet such suggestions with suspicion, as it is clear that humans do learn by a form of conditioning, including reward and punishment. But what we should be looking out for is who the moral authority is, and whether these standards of behavior can be justified on rational grounds. For it was once accepted that blacks were inferior in value, but no rational grounds were offered as to why they were inferior. Instead an array of self-perpetuating myths were transmitted into people from one generation to next. Punishment involving rehabilitation also involves a strong moral authority that can override an agents own reason and influence them in such a way that they do not question the conditions of their society. For instance they may see no injustice in ranking people based on their social position or the colour of their skin. It is not just the theories of punishment that run into problems but is the very nature of punishment itself. Indeed it seems that punishment in itself has some problematic implications. Let us consider the effect it has on one’s character. Given that some form of punishment is necessary under Kant’s account and also the deterrent function of consequentialism, it follows that someone must administer this punishment. It could then be argued that he who must administer this punishment in the form of pain or even death, themselves become tainted by their own actions for “he fights with monsters should be careful lest he thereby become a monster” (Nietzsche, 1989: 89). Another point of contention with the nature of punishment is to be found in Plato’s Republic (2007). Here, in an ongoing discussion concerning justice, Socrates denies the claim that justice consists in “doing good to a friend and harm to an enemy”. Here justice can be understood as good or virtue, for it is standard Socratic doctrine that the virtues are one (Vlastos, 1972: 418). Socrates argues that by harming someone we are worsening him by the standards of human excellence (2007: 13). Thus the addition of something vicious (harm) to man will only make them more vicious. Understood like this retributive punishment cannot be justified. Assuming that the premises stated throughout this essay are true, I cannot justify a theory of justice that incorporates a necessary connection between punishment and suffering. This reason for this is that Kant’s theory on retributive punishment does very little in the way of improving the character of the wrongdoer and is morally wrong in promoting the taking of one’s life based solely on the notion of desert. Such a view seems antiquated in modern standards, even barbaric. It seems a step backwards to look at punishment this way, as there is much evidence showing that the death penalty does not deter crime (Death Penalty Focus, 2009). Further to that, it is impossible for us to be one hundred percent sure that someone has committed a crime. For instance there have been deeply saddening instances of people who have been falsely accused and given the death penalty. To put someone’s life on the line in the name of justice seems intuitively wrong given then we have been and often are wrong in our accusations. For this reason I find consequentialism to be the better alternative. Albeit consequentialism has its own possible setbacks, particularly treating people as means to an end, it offers the most practical theory to punishment. Rehabilitation, as opposed to outright annihilation of an individual, seems a more optimistic view of establishing justice. And even if I am wrong in my estimations of consequentialism is see no right in taking another rational beings life. Bibliography: Death Penalty Focus. 2009. Deterrence. [ONLINE] Available at: http://deathpenalty.org/article.php?id=82. [Accessed 20/11/2015]. Huxley, A. 2007. Brave New World. London: Penguin. Nietzsche, F. 1989. Beyond Good & Evil. New York: Random House, Inc. Nozick, J. 1983. Philosophical Explanations. Cambridge: Harvard University Press. Plato. 2007. The Republic. London: Penguin Books. Rawls, J. 1971. A Theory of Justice. Cambridge: Harvard University Press. Rachels, J. "Punishment and Desert," Ethics in Practice, ed. Hugh LaFollette (Oxford: Basil Blackwell, 1997), pp. 470-479. Thomas E. Hill, JR. (1999). “Kant on Wrongdoing, Desert, and Punishment.” Law and Philosophy. 18 (4), 407-441. Vlastos, G. (1972). “The Unity of the Virtues in the Protagoras.” Review of Metaphysics. 25, 415-458. Wendell, O. 2005.The Common Law. United States: Digireads.com.