Fairness-based retributivism reconsidered

RESUMO Neste artigo, exploro se justiça retributiva liberal deve ser concebida ou individualista ou de forma holística. Examino criticamente a conta individualista da justiça retributiva e sugiro que a questão da retribuição -quando a punição de um indivíduo é compatível com o tratamento justo desse indivíduo -deve ser respondida de forma holística. Recorrendo ao ideal de razões sensíveis, um modelo de legitimidade na base dos nossos melhores modelos normativos de democracia, argumento que, nas democracias liberais modernas, a punição de um delinquente A para φ é compatível com o tratamento justo de A só se punição de um indivíduo para φ pode ser legítimo aos olhos de A e seus concidadãos. Uma vez que a justiça retributiva é entendida dessa forma holística, a imposição da pena pode ser compatível com o tratamento justo de indivíduos. ABSTRACT In this article I explore whether liberal retributive justice should be conceived of either individualistically or holistically. I critically examine the individualistic account of retributive justice and suggest that the question of retribution -i.e., whether and when punishment of an individual is compatible with just treatment of that individual -must be answered holistically. By resorting to the ideal of sensitive reasons, a model of legitimacy at the basis of our best normative models of democracy, the article argues that in modern liberal democracies, punishment of an offender A for f is compatible with just treatment of A only if punishment of an individual for f can be legitimate in A's and A's fellow citizens' eyes. Only once retributive justice is understood in this holistic fashion the imposition of punishment can be made compatible with just treatment of individuals.

Ratio Juris, 2003

While retributivism provides one of the main sources of justification for punishment within the criminal justice system, there are good philosophical and practical reasons for rejecting it. One such reason is that it is unclear that agents truly deserve to suffer for the wrongs they have done in the sense required by retributivism. In Section 1 of this paper, I explore the retributivist justification of punishment and explain why it is inconsistent with free will skepticism. In Section 2, I then argue that even if one is not convinced by the arguments for free will skepticism, there remains a strong epistemic argument against causing harm on retributivist grounds that undermines both libertarian and compatibilist attempts to justify it. I maintain that this argument provides sufficient reason for rejecting the retributive justification of legal punishment. I conclude in Section 3 by briefly sketching my public health-quarantine model, a non-retributive alternative for addressing criminal behavior that draws on the public health framework and prioritizes prevention and social justice [12-15]. I argue that the model is not only consistent with free will skepticism and the epistemic argument against retributivism, it also provides the most justified, humane, and effective way of dealing with criminal behavior.

Thomist, 2019

The Palgrave Handbook of Positive Peace, 2021

Retribution is one of the oldest justifications for punishment. In Western thought, it is perhaps most famously evident in the Old Testament's adage of an eye for an eye, a tooth for a tooth, a life for a life. In modern theory, the eighteenth-century German philosopher Immanuel Kant (1724-1804) developed this classic notion further by linking its justification to the state's authority. It has often been criticized in more recent times as a regressive theory that is no more morally superior than revenge. Retribution and revenge share a common structure. Unlike the theories of deterrence and rehabilitation that are legitimated on the basis of producing the future good of crime reduction, retribution and revenge are backward focused. Both are performed due to a past wrong. This chapter explores the differences and similarities between retribution and revenge and argues that while retribution has its limitations, it contains important elements necessary to restore balance in society and to create a positive peace. First, that the full extent of the wrong committed is publicly acknowledged, and second, that unlike the dangers inherent in revenge and deterrence, the punishment cannot create more harm than was caused by the crime.

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.

2020

This chapter introduces the idea of distributive justice. It identifies several different views of what characterizes distributive justice, as opposed to other types of justice and to nonjustice-based moral demands. The preconditions of distributive justice, its primary sub ject and its object, and its normative significance are discussed. The chapter then sug gests that bringing the diversity of usages of the concept of distributive justice into view helps cast light on some of the many contemporary debates about distributive justice and its limits. This chapter also introduces and outlines the different topics covered by the dif ferent sections and chapters of the book.

Facta Universitatis, Series: Law and Politics

The justification of punishment is a difficult problem. The paper attempts to examine retributivism in the normative perspective and to penetrate the structure of the fundamental premises and theses of retributivism. Retributivism assumes that punishment is just, in the broad understanding of the term, while in reality punishment is not just; the model of retributive punishment is contrafactual, which is evident above all in the problem of punishing the innocent. A proper modification of retributivism's normative premises (i.e. how and why people ought to be punished, etc.) consists in seeing these premises not as unconditionally binding directives but as optimization rules, a kind of prima facie duty. These are mainly the ethical duties of the state considered from the point of view of criminal policy. In effect, it is possible to formulate a non-fundamentalist (non-idealistic) variant of retributivism - better corresponding to social reality. The core of the paper consists in ...

International Journal of Public Theology

Restorative justice, aimed at restoring human relations instead of just punishing offenders, is often defended with reference to biblical values like reconciliation, forgiveness, and mercy. Advocates of retributivism, which is the philosophy that underlies the practice of punishing perpetrators with the sole goal of inflicting hardship on them, regularly ridicule such defenses. In response we will not directly defend restorative justice, but critically inquire in the main theoretical arguments with which advocates of retributivism seek to rationalize their view. We point out the weaknesses of these arguments and why we believe that restorative procedures can do much better in serving the goals of (criminal) justice.