« Tough questions about what's next after the Keith capital commutation in Ohio | Main | Is blogging now officially a "mainstream medium"? »

September 5, 2010

"What Might Retributive Justice Be?"

The title of this post is a question I often enjoy asking my students.  It is also the title of this new piece from Professor Dan Markel available via SSRN.  Here is the abstract:

There are many conceptions of retributive justice. This paper is designed to articulate and defend a particular kind of retributive justice, one that I call the “Confrontational Conception of Retributivism,” or the CCR. This particular conception is political, not comprehensive, and thus is interested in defending the claim that *state* punishment is, as a general matter, warranted as a response to legal wrongdoing. Accordingly, the focus is on the legal manifestations of punishment, particularly within a liberal democracy; it is not concerned with justifying punishment in other spheres such as parent-child relations. Related to this account of state punishment is that its contours should be devised principally ex ante and that such punishment should be distributed through actors upon whom there are checks with respect to their remaining discretion.

The paper here is a chapter in a volume forthcoming from Oxford including essays on the theory and practice of retributive justice. My paper in particular is an effort at restating, clarifying and correcting some of my prior work in retributive justice theory. It is, relatively speaking, reasonably short and might serve as a useful introduction for students and scholars wading into contemporary retributive justice theory.

September 5, 2010 at 05:57 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference "What Might Retributive Justice Be?":


I like almost all lawyers as people, even vicious adversaries. I have gone on to hire some, in fact. They did well for me.

Personal disclosure: He banned me from commenting on his blog, despite the objections of more mature partners. That is not a reason for the problems we have, because every law professor has banned me from their blog.I feel a great deal of frustration with this author, due to his hypocrisy, and supreme confidence in wrongheaded ideas. He is a rare exception to my affection for almost all lawyers. At one conference on this subject, there were many top law faculty who shared this frustration. Standing in the back, one could see a lot of eye rolling and glancing at each other, as he spoke some of this stuff. I do not feel alone in my frustration. As a person, he is a very nice, pious, and intelligent. I wish him well, but that he grow up too. He is one of the people with an IQ of 300 who has been deeply affected by the legal indoctrination. I feel he is beyond reach, but hope for a miracle later. I want to disclose this personal information in case people want to discount these arguments below.

Feel free to dismiss them. However, nothing will change the hard outcomes of the utter failures of the criminal law, that allows 23 million FBI index felonies, 5 million violent offenses, 17000 murders, with only a 10% rate of prosecution. The profession is in utter failure in protecting the public. There is no prospect of awareness, let along improvement in this horrible track record. How much a profession can suck before it is fired from a job appears to be an infinite amount.

1) He does not understand the word, punishment. It is not a message about the past. It is forward, future looking, and has a circular definition. It is defined as a consequence likely to reduce the occurrence of a behavior. Nor is it obvious what a punishment is for any individual being until the behavior count has dropped. For example, getting yelled at, thrown to the ground and restrained would likely reduce a certain behavior in most of us. What if I like a chesty staff member of a mental institution. I scheme to get yelled at, restrained and make her angry at me. That response will markedly increase the target behavior. She makes my day when she goes off on me, and I cannot take my eyes off her heaving chest. I don't care that my rule breaking jeopardizes my participation in Ice Cream Thursdays. That is called a reward.

2) If punishment is about the future, why fool around, why inflcit pain, especially on the innocent tax payer, and why not just reduce behavior by incapacitation?

3) Here is what else he is not saying, there is a deep, irremediable, conflict of interest. Retribution generates lawyer procedure, especially when it does not work, protects the criminal, and allows massive criminality, as is the case today in the US. Retribution requires an infrastructure of massive rent, because of the two procedural due process clauses of the constitution.

4) Last point, because the list of problems is long. He is a pious practitioner of his religion. Retribution reflects his deeply held religious views, and he is not disclosing that. Not cool. As bad as if a Muslim scholar were trying to sneak Sharia, into a secular discussion without announcing or warning of such an intent.

5) Retribution is lawless in a secular nation.

Posted by: Supremacy Claus | Sep 5, 2010 8:39:41 PM

thanks for the link.
As I wrote last time: I'm not sure what's worse. Being maligned by SC (or David Behar MD--why not write under your real name David?) on Doug's blog or having SC misrepresent my position. Alas. Hopefully DAB, you will exercise some quality control--if you do, please feel free to delete this message too.
Oh, and yes, Rosh Hashana is coming, so I must retreat to my feverish piety...

Posted by: Dan Markel | Sep 5, 2010 11:33:05 PM

I've said this before and I'll say it again: It's pretty clear that SC has some sort of mental illness. I don't think it's productive for people to engage him, and I really don't think it's acceptable for people to insult him. (Not that the latter happened here.)

Posted by: anon | Sep 6, 2010 12:35:13 AM

Dan: Start with the word, punishment. How are you using that word, define it the way you use it. Is future conduct involved at all in your definition? If it is, you are a budding utilitarian. If it is not, you are an atavistic, vengeance pushing, time and resource wasting lawyer, proceduralist, rent seeker, based on an Iraqi origin ancient tribal culture.

I do not ask anyone to silence you, although your message is unbearable to anyone normal, including average left wing law profs. Why can't you handle a little loving criticism? I think, you are too smart and too good to lower yourself.

The Supremacy is fictional character, not necessarily representing the views of its author. Everyone who wants to, knows its author, not a secret from anyone who cares to find a total stranger.

Although I love almost all lawyers, you can see the challenge to loving all.

Posted by: Supremacy Claus | Sep 6, 2010 12:59:25 AM

Anon: Am I the one who believes minds can be read, future rare accidents can be foreseen, twelve strangers can detect the truth by using their gut feelings, after excluding any with knowledge? Am I the one who believes that our standards of conduct should be set by a fictional character with the scared, careful personality of Mickey Mouse? Why? To make these standards objective, of course. This character is actually a thinly disguised avatar for Jesus, which is unlawful in our secular nation, since the word, reason, refers to the ability to perceive God, when the doctrines of our current jurisprudence were set in 1275 AD.

Am I the one who believes any practice from 1275 AD is in any way acceptable for modern practice? Am I the one who believes the adversarial process is the best way to arrive at an answer, a method of Scholasticism, a church based belief based on their faith. I have no criticism of the church, since they acknowledge their beliefs come from their faiths. However, the law is an empirical practice with hard physical outcomes, $billions change hands. People lose their lives and property to it.

It is the lawyer profession that is more cuckoo than a Swiss wall clock at 12 o'clock. That would be acceptable were it not for the fact that every goal of every law subject is in failure, save for one, rent seeking.

Posted by: Supremacy Claus | Sep 6, 2010 1:40:33 AM

how about justice itself. The judicial system has become amockery of the lack of depth in our culture.


Posted by: Sarah "How Do I Have A Girl" Smith | Jul 8, 2011 11:20:52 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB