Legal Theory 5 (4):363-388 (1999)

Authors
Jami L. Anderson
University of Michigan - Flint
Abstract
Despite the bad press that retributivism often receives, the basic assumptions on which this theory of punishment rests are generally regarded as being attractive and compelling. First of these is the assumption that persons are morally responsible agents and that social practices, such as criminal punishment, must acknowledge that fact. Additionally, retributivism is committed to the claim that punishment must be proportionate to the crime, and not determined by such utilitarian concerns as the welfare of society, or the hope of deterring other criminals. Because the most commonly discussed version of retributivism is developed from Kant's moral and legal theory, I will refer to it as Kantian Retributivism. Despite its appeal, Kantian Retributivism cannot provide a satisfactory response to a kind of case that is receiving increasingly serious consideration in philosophical literature. The case is this: Many crimes are committed by individuals profoundly disadvantaged by unjust social institutions, such as racism, classism, and/or sexism. If such individuals commit crimes, the retributivist is placed in a very difficult position: Either she must claim that the individual has willfully committed a crime and for that reason deserves punishment, seeming to ignore entirely the social background of the individual, or she can claim that the individual—in virtue of being disadvantaged by social injustices(s)—does not deserve punishment because such punishment would be unfair. I have argued elsewhere that neither strategy is tenable.
Keywords Hegel  retributivism  punishment
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