Abstract
In this chapter, Dahan Katz defends relational conceptions of retribution and desert. She clarifies the ways in which such relational conceptions avoid major worries associated with retributive theory, while addressing further worries that arise distinctively with respect to such an approach. In doing so, Dahan Katz provides further defense of the response-retributive theory of punishment that she has proposed elsewhere, while defending a wider set of views within the retributive tradition.
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Notes
- 1.
Desert is the central notion common to most retributive theories, though not all center on desert. For example, Herbert Morris’s (1968) fairness-based retributivism does not refer to “desert” (though arguably such views may still be understood as a way of cashing out a particular conception of desert that justifies punishment).
- 2.
For an elaboration on consequentialist versus non-consequentialist versions of retributivism (the former of which aim to promote a retributive good), see Berman (2011).
- 3.
- 4.
In his analysis of desert, George Sher comments that, in many cases, desert claims “do not imply anything about what particular persons ought to do,” while retributive desert claims are exceptional in this way (1987, 5).
- 5.
For example, some retributive views reject the repugnancy of the goodness of suffering (Murphy 2016; Zaibert 2018), while others avoid relying upon the intrinsic goodness claim, muting concerns about repugnancy. Fair-play accounts (Morris 1968; Dagger 1993) respond well to the challenge of authority, while conventionalist accounts provide a solution to the indeterminacy challenge.
- 6.
This axiological claim is often taken to have deontic implications (e.g., Moore 1997), but the justification of punishment is ultimately dependent on claims about value.
- 7.
For a weaker retributive view, see Husak (2012). For a stronger view, see Murphy (2016) (though Murphy has other reservations about retribution). Even Kant, taken by many to be the paradigm all-things-considered retributivist (though it is debatable whether he was a strict retributivist at all, see, e.g., Byrd 1989 and Hill 1999), explicitly argues against imposing deserved punishment in specified cases (1996, 6:334 [p. 475]).
- 8.
Feinberg coined the term “desert object,” while Berman (2011) has coined and elaborated on the desert subject and basis.
- 9.
This means that a successful criticism of retributivism that relies on such assumptions is highly limited in its applicability, relevant only to a narrow set of retributive views rather than to retributivism as such.
- 10.
For a discussion of these options (without endorsing a retributive view), see Radzik (2017).
- 11.
I set aside here the interpretative move that would make this a case of divine justice.
- 12.
- 13.
Duff relies on penal desert in his communicative theory of punishment. For more on the retributive dimensions of his view, see, e.g., Duff (2011). Duff goes a step farther and takes the view that responsibility is relational. For more on his view of “responsibility as answerability,” see Duff (2013). In contrast to Duff, I take “basic responsibility” to be non-relational and specifiable in terms that do not require appeal to another (actual or hypothetical) party.
- 14.
- 15.
This is not to deny that such events have value, or to claim that they are irrelevant to the evaluation of actions and states of affairs. For example, we might think that, in the absence of human respondents, there still is some measure of burdening that the wrongdoer ought to experience. It is only to deny that such value provides the best grounds for the justification for imposing punishment on wrongdoers (among others, due to the concerns raised by critics addressed in section 2).
- 16.
Per Duff (2013), such relational reasons are grounded in the value of the relations (taking a Strawsonian route; see section 7). Gardner (2011) denies that one’s responsibility to the state is (necessarily) robustly relational in this way, as proposed by Duff. Yet he has in mind responsibility in the general sense of answerability to the state, not exclusively in the context of punishment (though he does specifically doubt the relevance of relational reasons for the grounding of agents’ responsibility to criminal courts [Duff 2011, 92]), and in any event he broadly rejects retributive punishment altogether (Gardner 2007, ch. 11). Thus, Gardner cannot be read as rejecting the relational grounds of retributive punishment, and his disagreement with Duff on this point does not offer any direct objection to the relational retributive thesis that I propose.
- 17.
But see Duff (2018), who takes the relevant relation to be that between the state and its citizens (and among citizens as members of the liberal moral community). On my view, this is to privilege citizenship (even in the broad sense intended by Duff) in ways that are both objectionable and unwarranted. Further, on my suggested account, there is no puzzle about the justification of punishing non-citizens, non-residents, and “guests.”
- 18.
The above highlights that criminal punishment is just one of a number of inter-agential punitive practices that might be called for on a relational view, where each relation might require a dissociative reaction to wrongdoing and for punishment.
- 19.
Compare this to Duff’s view, according to which an agent deserves “to be called to account by those who[se] business that wrong is, to suffer the forceful communication of the censure that they have the standing to administer, and to be required to make appropriate moral reparation to them” (2013, 205).
- 20.
Punishment thus need not involve a violation of rights or “hard treatment,” though it must involve a negative burden deliberately imposed. See Hampton (1992a, 1694–95).
- 21.
See also the views defended by Moore (1997), Zaibert (2006), Berman (2013), and Murphy (2016). Berman (2008) points to the option of a relational conception of retribution, recognizing the potential of developing such an account. In his defense of his “life going less well” conception, however, he appears to reject this option.
- 22.
Though facts of this nature may impact prosecutorial and judicial decision-making. See section 6.
- 23.
See also Murphy (2012, ch. 6) on why repentance reduces penal desert on such a view for this very reason.
- 24.
Italics in the original. The use of the feminine pronoun in this context is not arbitrary, given Hampton’s feminist perspective on punishment and on the political.
- 25.
Hampton herself at times writes in a more substantive vein, and at others, in the expressive.
- 26.
Though they may yet have reasons to hold certain evaluative beliefs about what has transpired, or to adopt a particular attitude toward the event and parties involved.
- 27.
See Kant (1996, 6:333 [p. 474]) on the complicity involved in failing to respond—though I would not explain the failure as one that involves complicity in the wrong, but rather one that involves an independent wrong. See also Altman’s chapter in this volume.
- 28.
Why the reaction required must be punitive rather than non-punitive is a separate question that can be filled in with the details of Hampton’s own account or with the kindred response-retributive account I have defended.
- 29.
See note 17.
- 30.
The punishing agent’s relation to the victim may have further implications here. See note 14.
- 31.
There is no single answer to the question of the nature of the political relations and scope of “relevant wrongs” it will be called upon to respond to. Like personal relations that might be shaped intentionally, independently of the will of the parties or by evolution of involvement, the political relation—and the question of what it ought to respond to—is sensitive to a variety of features, such that states can be designed to be more “involved” or less “involved” in the lives of those bound by law, generating different contours of wrongs that it is called upon to reject. We can of course have (extrinsic) reasons to shape or not to shape the political relation in a certain way. (That is, one theory may be better than another on any number of grounds, including how just or unjust the resulting political arrangement will be. This is rehearsed in debates in political theory about the proper contours of the state—for example, the libertarian, liberal, and others arguing over how the political relation should be shaped and what the level of involvement in the lives of those bound by law should be). Still, the shape the state takes in relations to those bound by law—the factual relations—will determine when state inaction can be taken to be meaningful and problematic (given the state’s level of involvement in other aspects of life).
- 32.
Such an account will further have to explain why the state can legitimately respond in ways that are not merely intentionally burdensome, or broadly retributive, but further violative of rights.
- 33.
Briefly, I would suggest that it is the authority of law over other domains of the lives of those bound by law that generate reasons for the state to respond retributively to public wrongdoing and that justify state punishment. Consider, by comparison, a schoolteacher who takes educational responsibility over a class of children. The teacher cannot ignore or remain neutral in the face of attacks or bullying that goes on within the classroom; they cannot claim that the only sphere they are required to address is formal educational. Similarly, the authority of the state over the lives of those bound by law renders the state responsible for addressing wrongful interactions that occur between agents that are appropriately understood to be public. It too cannot remain neutral in the face of wrongs performed in the public domain without this omission becoming morally and politically meaningful.
- 34.
It warrants mentioning that fair play theories (Morris 1968; Dagger 1993) also fair well with respect to the epistemic indeterminacy objection. However, they are notorious for suffering from other devastating flaws, primarily their characterization of the wrongfulness for which punishment is imposed as a matter of freeriding or taking unfair advantages over others, while failing to address what is fundamentally wrong with core forms of wrongdoing (e.g., murder, rape). On this score, relational views not only avoid these flaws, but offer a far improved modification of the standard view. For a response to the no-benefit objection to fair play theories, see Duus-Otterström’s chapter in this volume.
- 35.
This is to reject any claim to the all-things-considered sufficiency of desert for the justification of punishment.
- 36.
Strawson (1962) of course does not restrict his view to the negative evaluative side of our responsibility practices and equally addresses positive evaluative attitudes (such as praise and gratitude), yet these are beyond the scope of our inquiry.
- 37.
Many Strawsonians do not follow Strawson here, positing a categorical divide between the blame and punishment. See, e.g., Scanlon (2009).
- 38.
Though, in the context of the state, talk of emotive reactive attitudes might be out of place, given that non-natural agents such as the state do not react emotively in the way natural to persons, institutions nonetheless can be understood to take up reactive stances to the actions of others, expressed in their deliberations, decisions, and actions, including their practices of punishment.
References
Alexander, Larry. 2018. “Retributive Justice.” In The Oxford Handbook of Distributive Justice, edited by Serena Olsaretti, 177–94. Oxford: Oxford University Press.
Árdal, Páll S. 1984. “Does Anyone Ever Deserve to Suffer.” Queen’s Quarterly 91, no. 2 (Summer): 241–57.
Berman, Mitchell N. 2008. “Punishment and Justification.” Ethics 118, no. 2 (January): 258–90.
———. 2011. “Two Kinds of Retributivism.” In Philosophical Foundations of Criminal Law, edited by R. A. Duff and Stuart P. Green, 433–57. Oxford: Oxford University Press.
———. 2013. “Rehabilitating Retributivism.” Law and Philosophy 32, no. 1 (January): 83–108.
Byrd, B. Sharon. 1989. “Kant’s Theory of Punishment: Deterrence in Its Threat, Retribution in Its Execution.” Law and Philosophy 8, no. 2 (August): 151–200.
Chiao, Vincent. 2019. Criminal Law in the Age of the Administrative State. Oxford: Oxford University Press.
Dahan Katz, Leora. 2021. “Response Retributivism: Defending the Duty to Punish.” Law and Philosophy 40, no. 6 (December): 585–615.
———. 2022. “How Victims Matter: Rethinking the Significance of the Victim in Criminal Theory.” University of Toronto Law Journal. https://doi.org/10.3138/utlj.2021-0091.
Dagger, Richard. 1993. “Playing Fair with Punishment.” Ethics 103, no. 3 (April): 473–88.
Davis, Lawrence H. 1972. “They Deserve to Suffer.” Analysis 32, no. 4 (March): 136–40.
Dolinko, David. 1991. “Some Thoughts about Retributivism.” Ethics 101, no. 3 (April): 537–59.
———. 1992. “Three Mistakes of Retributivism.” UCLA Law Review 39, no. 6 (August): 1623–58.
———. 1997. “Retributivism, Consequentialism, and the Intrinsic Goodness of Punishment.” Law and Philosophy 16, no. 5 (September): 507–28.
Duff, R. A. 2001. Punishment, Communication, and Community. Oxford: Oxford University Press.
———. 2006. “Answering for Crime.” Proceedings of the Aristotelian Society 106, no. 1 (June): 87–113.
———. 2011. “Retrieving Retributivism.” In Retributivism: Essays on Theory and Policy, edited by Mark D. White, 3–24. New York: Oxford University Press.
———. 2013. “Relational Reasons and the Criminal Law.” In Oxford Studies in Philosophy of Law, vol. 2, edited by Leslie Green and Brian Leiter, 175–208. Oxford: Oxford University Press.
———. 2018. The Realm of Criminal Law. Oxford: Oxford University Press.
Feinberg, Joel. 1970. Doing & Deserving; Essays in the Theory of Responsibility. Princeton, NJ: Princeton University Press.
Fingarette, Herbert. 1977. “Punishment and Suffering.” Proceedings and Addresses of the American Philosophical Association 50, no. 6 (August): 499–525.
Flew, Antony. 1954. “The Justification of Punishment.” Philosophy 29, no. 111 (October): 291–307.
Gardner, John. 2007. Offences and Defences: Selected Essays in the Philosophy of Criminal Law. Oxford: Oxford University Press.
———. 2011. “Relations of Responsibility.” In Crime, Punishment, and Responsibility: The Jurisprudence of Antony Duff, edited by Rowan Cruft, Matthew H. Kramer, and Mark R. Reiff, 87–102. Oxford: Oxford University Press.
Golash, Deirdre. 2005. The Case against Punishment: Retribution, Crime Prevention, and the Law. New York: New York University Press.
Hampton, Jean. 1991. “A New Theory of Retribution.” In Liability and Responsibility: Essays in Law and Morals, edited by R. G. Frey and Christopher W. Morris, 377–414. Cambridge: Cambridge University Press.
———. 1992a. “Correcting Harms versus Righting Wrongs: The Goal of Retribution.” UCLA Law Review 39, no. 6 (August): 1659–702.
———. 1992b. “An Expressive Theory of Retribution.” In Retributivism and Its Critics, edited by Wesley Cragg, 1–25. Stuttgart: Steiner.
Hart, H. L. A. 1960. “Prolegomenon to the Principles of Punishment.” Proceedings of the Aristotelian Society 60, no. 1 (June): 1–26.
Haque, Adil Ahmad. 2005. “Group Violence and Group Vengeance: Toward a Retributivist Theory of International Criminal Law.” Buffalo Criminal Law Review 9, no. 1 (April): 273–328.
Hill, Thomas E., Jr. 1999. “Kant on Wrongdoing, Desert, and Punishment.” Law and Philosophy 18, no. 4 (July): 407–41.
Honderich, Ted. 1970. Punishment: The Supposed Justifications. New York: Harcourt, Brace & World.
Hoskins, Zachary, and Antony Duff. 2021. “Legal Punishment.” Stanford Encyclopedia of Philosophy (Winter 2021 edition), edited by Edward N. Zalta. https://plato.stanford.edu/archives/win2021/entries/legal-punishment/.
Husak, Douglas. 2012. “Retributivism In Extremis.” Law and Philosophy 32, no. 1 (January): 3–31.
Kant, Immanuel. 1996. The Metaphysics of Morals. In Practical Philosophy, translated and edited by Mary J. Gregor, 363–602. Cambridge: Cambridge University Press.
Kleinig, John. 1973. Punishment and Desert. The Hague: Nijhoff.
Moore, Michael S. 1997. Placing Blame: A General Theory of the Criminal Law. Oxford: Oxford University Press.
Markel, Dan, and Chad Flanders. 2010. “Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Justice.” California Law Review 98, no. 3 (June): 907–88.
Morris, Herbert. 1968. “Persons and Punishment.” Monist 52, no. 4 (October): 475–501.
Murphy, Jeffrie G. 2012. Punishment and the Moral Emotions: Essays in Law, Morality, and Religion. Oxford: Oxford University Press.
———. 2016. “Last Words on Retribution.” In The Routledge Handbook of Criminal Justice Ethics, edited by Jonathan Jacobs and Jonathan Jackson, 28–41. Abingdon, UK: Routledge.
Narveson, Jan. 1974. “Three Analysis Retributivists.” Analysis 34, no. 6 (June): 185–93.
Nino, Carlos Santiago. 1996. Radical Evil on Trial. New Haven, CT: Yale University Press.
Pereboom, Derk. 2013. “Free Will Skepticism and Criminal Punishment.” In The Future of Punishment, edited by Thomas A. Nadelhoffer, 49–78. Oxford: Oxford University Press.
Radzik, Linda. 2017. “Desert of What? On Murphy’s Reluctant Retributivism.” Criminal Law and Philosophy 11, no. 1 (March): 161–73.
Scanlon, T. M. 1999. “Punishment and the Rule of Law.” In Deliberative Democracy and Human Rights, edited by Harold Hongju Koh and Ronald C. Slye, 257–71. New Haven, CT: Yale University Press.
———. 2009. Moral Dimensions: Permissibility, Meaning, Blame. Cambridge, MA: Harvard University Press.
———. 2013. “Giving Desert Its Due.” Philosophical Explorations 16, no. 2: 101–16.
Shafer-Landau, Russ. 2000. “Retributivism and Desert.” Pacific Philosophical Quarterly 81, no. 2 (June): 189–214.
Sher, George. 1987. Desert. Princeton, NJ: Princeton University Press.
Shoemaker, David. 2015. Responsibility from the Margins. Oxford: Oxford University Press.
Strawson, P. F. 1962. “Freedom and Resentment.” Proceedings of the British Academy 48: 1–25.
Tadros, Victor. 2011. The Ends of Harm: The Moral Foundations of Criminal Law. Oxford: Oxford University Press.
Watson, Gary. 1996. “Two Faces of Responsibility.” In Agency and Answerability: Selected Essays, 260–88. Oxford: Clarendon.
Wallace, R. Jay. 2011. “Dispassionate Opprobrium: On Blame and the Reactive Sentiments.” In Reasons and Recognition: Essays on the Philosophy of T. M. Scanlon, edited by R. Jay Wallace, Rahul Kumar, and Samuel Freeman, 348-72. Oxford: Oxford University Press.
White, Mark D. 2011. “Pro Tanto Retributivism: Judgment and the Balance of Principles in Criminal Justice.” In Retributivism: Essays on Theory and Policy, edited by Mark D. White, 129–45. Oxford: Oxford University Press.
Zaibert, Leo. 2006. Punishment and Retribution. Aldershot, UK: Ashgate.
———. 2018. Rethinking Punishment. Cambridge: Cambridge University Press.
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Dahan Katz, L. (2023). Relational Conceptions of Retribution. In: Altman, M.C. (eds) The Palgrave Handbook on the Philosophy of Punishment. Palgrave Handbooks in the Philosophy of Law. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-11874-6_5
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