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May 26, 2010

"Two Kinds of Retributivism"

The title of this post is the title of this new piece on SSRN from Mitchell Berman (no relation). Here is the abstract:

This essay, written as a contribution to a forthcoming volume on the philosophical foundations of the criminal law, challenges the longstanding dominant framework for classifying justifications for criminal punishment.  The familiar binary distinction between consequentialism and retributivism is no longer most perspicuous, I argue, because many recognizably retributivist theories of punishment employ a consequentialist justificatory structure.  However, because not all do, it might prove most illuminating to carve the retributivist field in two – distinguishing what we might term “consequentialist retributivism” (perhaps better labeled “instrumentalist retributivism”) from “non-consequentialist retributivism” (“non-instrumentalist retributivism”).

Whether or not it is ultimately persuasive, consequentialist retributivism is a fairly straightforward theory of, or justification for, punishment.  Roughly, it rests on the claims that the suffering of wrongdoers is good or valuable in itself and that the state has reason (of some weight) to bring about this good or valuable state of affairs.  Non-consequentialist retributivism is more difficult to formulate and defend.  So this essay critically assesses some of the more promising routes to its vindication.  It argues that the split between consequentialist and non-consequentialist retributivism reduces most naturally to a disagreement regarding precisely what it is that wrongdoers deserve – what is (to coin a term) wrongdoers’ “desert object.”

Philosophers of the criminal law – retributivists and anti-retributivists alike – commonly say that, on the retributivist account, wrongdoers deserve “to suffer” or “to be punished.”  Very rarely do theorists treat these two formulations as meaningfully different, let alone do they explain why one formulation of the retributivist desert object is more accurate than the other, or why some third formulation is preferable to both.  But if, as is commonly contended, desert is central to retributivism (in both consequentialist and non-consequentialist guises), efforts to articulate and defend wrongdoers’ desert object in careful and precise terms might make it easier for persons with retributivist sympathies or sensibilities to choose intelligently between the two kinds of retributivism.

May 26, 2010 at 11:31 AM | Permalink


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A related paper is Making Sense of English Law Enforcement in the 18th Century.

David Friedman

The criminal justice system of England in the 18th century presents a curious spectacle to an observer more familiar with modern institutions. The two most striking anomalies are the institutions for prosecuting offenders and the range of punishments. Prosecution of almost all criminal offenses was private, usually by the victim. Intermediate punishments for serious offenses were strikingly absent. It is only a slight exaggeration to say that, in the early years of the century, English courts imposed only two sentences on convicted felons. Either they turned them loose or they hanged them.[1]

Parts I and II of this essay describe the institutions for prosecution and the forms of punishment. In parts III, IV and V I argue that, contrary to the view of almost all modern commentators and many contemporary ones, these institutions may have made considerable sense. The shift in the early 19th century towards punishment by imprisonment and law enforcement by paid police, and the later shift to public prosecution, were driven by discontent with the performance of the existing institutions. But it is far from clear whether that discontent was justified. I will argue that both contemporary critics and modern historians have missed important elements in the logic of the system of private prosecution, elements that help explain why it lasted as long as it did and worked as well as it did.


An interesting study would be one comparing this system to ours before and after the Constitution. Particularly interesting would be how the Bill of Rights was a reaction to this system, if it was.

Posted by: George | May 26, 2010 12:08:06 PM

I try to practice with a recognizably retributivist theoryof punishment but now this guy says I employ a consequentialist justificatory structure.

Can I smoke in this bar or not?

Posted by: Matt | May 26, 2010 12:08:42 PM

thanks to George for bringing out attention to the fascinating article by David Friedman. Maybe it's me, but I couldn't wrap my head around the concepts and terminology of the Berman article. In contrast, I found the Friedman article a pleasure to read and extremely provocative in its argument that 18th century institutions like private prosecutions, harsh punishments, and generous use of pardon resulted in a fairer and more efficient justice system.

Posted by: margy | May 26, 2010 9:30:13 PM

One may trace the retributionist view to religious sources, including Biblical culture of the ancient Middle East. Their retribution style was to kill everybody in the village and even the animals of the offender. That still did not work well.

The first and last goal of government is security. Many crimes are impulsive, and the chance or harshness of punishment does not influence the calculation made before committing a crime. For non-impulsive crime, the chance of getting a punishment is more influential than the harshness of punishment. And the criminal is never persuaded he deserves to be punished.

There have been natural experiments in history that support mostly incapacitation as a method to reduce the crime victimization rates. So, empty the prisons, and remove the police, you have Fallujah. Before getting too superior over risks in Fallujah, it may still have been safer than many American inner cities. Most of the victims were targeted in sectarian conflict, rather than in street crime. There was a lot of kidnapping because it worked at making money down to factory workers families paying hundreds of dollars for the return of their loved ones from ordinary criminals.

Had Saddam been executed for his first murder at age 10, a mess of trouble would have been prevented. The problem is the person. Saddam said it, when the person is gone, the problem is solved. He was an advocate of incapacitation despite appearing to be an extremist on retribution. In the case of criminal government, the problem is a set of families that sponsor the rogue national leader. Those should be targeted, since the politician is a fungible figure head. The Takrit clan sponsored Saddam and did well. About 20 families sponsored the Nazi party and went untouched, and recruited by the Americans after the War. Bush represented West Texas born again oil people. Clinton represented Tyson Chicken. Reagan represented 6 California real estate tycoons. All big crime has the protection of powerful interests. Big crime cannot go on without the forbearance of government. In the case of the frequency of street and residential crime, the interest of the lawyer profession is served. You cannot end the targeted massive crime without incapacitation of its sponsors. To end street crime, incapacitate the lawyer hierarchy.

Posted by: Supremacy Claus | May 27, 2010 7:10:18 AM

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