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August 24, 2010

Can one be a committed retributivist without some deep belief in a higher power?

After I wrapped up my all-too-brief discussion of traditional punishment theories in my first-year Criminal law class today, one of my terrific students asked me a variation of the question I have posed in the title of this post.  In part because I tend to believe in some form of a higher power, and also because I tend not find retributivist theories of punishment especially appealing, I really was not able to provide an especially satisfying answer to my student's terrific question.  Consequently, I thought it might be useful (and perhaps also just) to ask if any readers have a satisfying answer to the question above. 

I suppose I would especially like to hear answers to the question from those who genuinely view themselves as committed atheists and committed retributivist.  But, of course, I welcome on-point and respectful comments from anyone (though please Supremecy Clause, try to keep it short). 

August 24, 2010 at 03:42 PM | Permalink


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Absolutely, yes. One of my best friends is a committed Aristotelian atheist, which leads naturally to being a committed retributivist. I think many people mean different things by "retributivism," but I am pretty sure that a strong sense of individual justice and a belief in free will are all that is really needed.

Posted by: WB | Aug 24, 2010 4:07:49 PM

I'm afraid I don't understand what one has to do with the other.

To make sure we're all on the same page, my understanding of retributivism is that it's the imposition of punishment roughly in line with the crime - i.e., death penalty for murder, ticket for speeding, etc. Why would the belief or disbelief in a higher power have anything whatsoever to do with that punishment scale?

Maybe I've been an atheist too long to understand what this question even means. You could argue, I suppose, that retributivism serves a deterrent purpose and even satisfies our need for revenge and simple punishment, but those are all "worldly" concerns. Why do you need a higher power?

I've got a sinking feeling that I'm totally missing something. If so, please enlighten me.

Posted by: SRS | Aug 24, 2010 4:39:59 PM

No, SRS, that's proportionality. Retributivism means, essentially, that punishment is justified by the inherent worth of doing justice, without reference to utilitarian effects. A retributivist would say we should still punish wrongdoers even if there were no deterrent effect. Most (all?) retributivists also believe punishment should be proportional, but that is a different issue.

Relatively little of what I have read by retributivists is based on any belief in a higher power, so it would seem the answer to the title question is "yes," but I won't purport to speak for them.

My own position is that both retributivist and utilitarian factors must be considered.

Posted by: Kent Scheidegger | Aug 24, 2010 5:02:47 PM

This is certainly an interesting cast of characters to address such an issue.

Perhaps The Most Rev. Scheidegger can issue and edict of some sort to just get the dang issue out of the way once and for absolutely all, so we don't have to actually think about it?

Posted by: Joe | Aug 24, 2010 5:08:53 PM

SRS, I am using the term retributivist to describe a Kantian-type deontological philosophy of punishment in which justice is said to demand the punishment of those (and only those) who commit acts that make them morally blameworthy and in which the future (good or bad) consequences of any punishment are completely irrelevant and inappropriate considerations as a measure of when and what punishments are deserved. The term "just deserts" is perhaps a more common way to express this philosophy.

Another (better?) way to ask the core question would be to ask whether and how a person, without some direct/implicit reliance on a concept of a god or "higher power" or transcendant truth AND without some direct/implicit concern for future consequences, could develop a concrete and fully-formed view of exactly what sort of acts would make a person morally blameworthy and therefore deserving of punishment.

Does that help, SRS?

Posted by: Doug B. | Aug 24, 2010 5:17:02 PM

Joe, is there a point you are trying to make amidst the sarcasm? It is hard to discern one.

Posted by: Kent Scheidegger | Aug 24, 2010 5:21:33 PM

You can be a Kantian retributivist. But you do have to believe in free will. Kant manages this by being a skeptic about empiricism "in order the leave room for faith." Being a thorough-going Kantian seems to me to presume at least that Reason is -- and that requires a kind of leap of faith. Faith in what? Well, some kind of world in which the purpose of human life is to be fully and completely reasonable, even if being reasonable requires your death. At the very least, you have to believe in cosmos over chaos.

Posted by: Linda | Aug 24, 2010 5:44:49 PM

First, I think you need to be clear about what you mean by atheist. Some people consider themselves atheist, but still have spiritual belief systems; I don't think we are talking about them. I'm an irreligious atheist, so I aspire to act and believe based on reason, rather then a system of religious or spiritual morality. But at the same time I have a keen sense of what is just or unjust. Its based I guess on combination of my upbringing and the culture I live in, as irrational as it may be, its still there.

Personally, I think rational thought wins the day, at least for me, when it comes to punishment theories; but retributive justice still has a strong emotional appeal. Certainly you can still be an atheist and have it go the other way. You can retain an entire judeo-christian morality, and be an atheist, as long as you reject the god origin of the system. Many people have inconsistent beliefs that defy reason, so you certainly could be a committed retributivist with out believing in a higher power.

Posted by: Monte | Aug 24, 2010 5:46:47 PM

Another (better?) way to ask the core question would be to ask whether and how a person, without some direct/implicit reliance on a concept of a god or "higher power" or transcendant truth AND without some direct/implicit concern for future consequences, could develop a concrete and fully-formed view of exactly what sort of acts would make a person morally blameworthy and therefore deserving of punishment.

Is it presumptuous to say that the real question here is whether one can have a moral code without reference to a higher power? Because I certainly believe that is possible. I don't believe in a god or anything else, but I believe that things like murder and stealing are wrong because they inflict harm on others, and I personally believe that one should strive to live one's life without inflicting harm on others because one should have consideration for one's fellow humans and because it makes the world a better place for everyone to live in general.

I guess that's my answer to your query, "What sort of acts would make a person morally blameworthy and therefore deserving of punishment?" Hitting someone in the head with a hammer? Yep. Smoking pot? Hardly.

Posted by: SRS | Aug 24, 2010 6:15:21 PM


No, sarcasm is the only point, you bloodlusting barbarian.

Yours truly,
The Ones Who Are Smarter

Posted by: Bill Otis | Aug 24, 2010 6:59:17 PM

Doug --

Any married man knows full well that there is a higher power.

Posted by: Bill Otis | Aug 24, 2010 7:13:05 PM

I am a committed atheist, and do not find retributivist theories of punishment persuasive. However, I don't believe the two beliefs have any necessary connection. To be a retributivist, one only needs to believe in free will -- and I don't. If I did believe in free will, I would probably believe in retribution whether or not I believed in god(s).

Posted by: JRL | Aug 24, 2010 8:15:59 PM

To veer completely off the road: JRL, I'm interested in your "no free will" pronouncement. How does that intersect with the mens rea for intent crimes and with the lack thereof for strict liability crimes?

Posted by: Mark # 1 | Aug 25, 2010 12:41:14 AM

This Student. Shows a hint of incomplete indoctrination. Not all of 10th Grade World History, nor Western Civ 101 was erased. Very good. If this student wants an exciting, dangerous, crazy, furniture upending legal career, Prof. Berman, please give to the student the name and the email address of the author of the Supremacy character. Congratulations, Madam or Sir, on the CCE's missing a spot. You may have a clue.

The Question. Sounds philosophical but is deadly serious, appellate brief ready constitutional one. You cannot have a jurisprudence based on any religion in a secular nation. The language of the Catechism is no more acceptable than that of the Koran. The word, element, the analysis of crime, the requirements, are copied from the analysis of mortal sin. Briefly (Catechism Section 1855), "One commits a mortal sin when there are simultaneously present: grave matter [damage listed in the 10 Commandments], full knowledge [malice], and deliberate consent [intent]."

Retribution has strong Biblical roots. The wicked thrived in those days. Pious economic losers could only take comfort in the retribution of God. Jesus:"and then shall he render unto every man according to his deeds." In those days, vendettas lasted for 100's of years. The idea of God's retribution comforted the righteous. So the idea is from a religious book, is atavistic, and comes from a vengeful culture of the Middle East. None of these references is reassuring about the validity of that purpose of the criminal law, and its Biblical origin makes it unlawful, according to the Establishment Clause.

Effective Government. We have government to keep us safe, first and last. We have government to achieve big things not possible by smaller private entities (war, moon shots). Those are necessities and justify tax payments. Where is the evidence that retribution achieves anything of value to the owner of the criminal law, the public? It may satisfy the blood lust and anger of the victim and the family of the victim. However, that is not a proper use of the taxpayer resource. Nor does it promote safety. It represents a misuse of government resources for private benefit. Even if it could be shown to prevent future crime, it would no longer be called retribution. It would be called deterrence, and would serve an utilitarian purpose, safety of unrelated members of the public. Private purposes are best served by tort claims. The criminal has no assets. However, the body of the criminal had a very high chance of being under the control of irresponsible, careless, negligent lawyer entities, such as prisons, judges, facilities. These have dealt themselves immunities from responsibility for horrendous harms, up to murder by one of their charges. All immunities should end. Immunity itself violates the Establishment Clause and the Equal Protection Clause. It is justified by the Sovereign's speaking with the voice of God, a psychotic delusion unlawful in our secular nation.

Disclosure. The Supremacy is an extreme atheist and an extreme utilitarian. Nevertheless, it respects religion and does not want to see it driven out of our nation. Religion serves a great utilitarian purpose, in leading average people to work to support their families, and to treat others well. It has nothing against religion, and most religious people like the Supremacy. The Supremacy just wants the lawyer to obey the crystal clear language of the Establishment Clause.

Posted by: Supremacy Claus | Aug 25, 2010 6:59:58 AM

On the "yes" side, I would also include Paul Robinson's notion of "empirical desert." He has written a number of articles suggesting that justice and moral blameworthiness in punishment ought to be guided by empirical research on what the public considers just. While, of course, the public's view of justice is guided by some amount of belief in a Higher Power, I don't think such belief is necessary for empirical desert to be justified. Unless, I supposed, the Higher Power is Democracy (really big D).

Posted by: David Patton | Aug 25, 2010 8:48:04 AM

Doug -- Mike Moore is both athiest and retrbutivist, and it would be dangerous to charge him with confused thinking. Take care.

Posted by: Stephen P. Garvey | Aug 25, 2010 10:41:16 AM

I just noticed, the student is in the first year, in what must be the first classes. The indoctrination has not has a chance to take over yet, thus the intelligent question.

Posted by: Supremacy Claus | Aug 25, 2010 8:41:19 PM

To the above student: Resist. They will try to convince you by intimidation of the following.

1) Minds can be read (intent). Half of perps and half the victims of crime are drunk, and cannot read their own intent.

2) Future rare accidents are foreseeable (as the basis of duty). Take the intersection with the most crashes. You will still do better picking the winning lottery numbers than foreseeing a car crash.

3) Twelve strangers off the street can detect the truth using their gut feelings. The gut can only detect likability.

4) The standard of conduct is set by a fictional character, with the overly anxious personality of Mickey Mouse. This character is the reasonable person. "Reason" is the ability to perceive God, and the reasonable character is a thinly disguised avatar for Jesus Christ.

As ambassador from earth to the lawyer Twilight Zone, I can tell you, the above are cuckoo. Resist. Say, you believe, but understand these are crazy, and taken from church doctrine, something not allowed in our secular nation.

Posted by: Supremacy Claus | Aug 27, 2010 5:18:56 AM

Moore's moral realism is so strong, it starts to look an awful lot like an immanent sort of god. What is cosmos, after all, but a sort of divine order of things? Free will as what we imagine it would be like to be outside the chain of causation? I think Supremacy is right, the law (and retributive theory) requires belief in a philosopher's god of Reason. (But Supremacy, even utilitarians have a philosopher's god -- "happiness" -- which most utilitarians would acknowledge means maximizing not the "lower" pleasures of sadism and gluttony, but the "higher" pleasures -- and no utilitarian has convinced me that this distinction can do without a preexisting set of moral values). But without our belief that cosmos/happiness/reason exist and that we can know what they are,we also can't say what criminals "deserve," and we'd have to be far more humble and far more merciful in punishing than we are.

Posted by: Linda | Aug 27, 2010 12:07:42 PM

It is not that fancy in utilitarianism. Are you afraid much of the time? Are you spending a lot of time on personal safety, as in Fallujah, instead of on school work, jobs, or having fun? If you are, government is in failure.

When you get a business idea, is it crushed by bureaucratic burdens, then government is too much, because a good business makes everyone richer.

The fear, and the money are measurable, are facts of the physical world. They do not require that adults believe tall tales, as if they were 5 years old again.

In retribution, the involved family members do get gratification, but at great cost to the public. With incapacitation, the cost is small. The cost of prevented crime is cheap, compared to the cost of crime victimization.

Posted by: Supremacy Claus | Aug 27, 2010 3:38:48 PM

Honestly, I think the case could be made that a firm belief in a higher power (or a "just" one at any rate) would incline one more towards utilitarianism. If God ("Gods" - "Craig" - whoever) makes sure that the scales balance out in the end ---that criminals get what is coming to them in this life or the next--- then man's laws are for this world and seeing that things go smoothly on our side. If our only job is to keep society in order so that the churches stay open and the sacrifices come regularly then the laws we make should be utilitarian and "just deserts" can be left to the big guy.

Posted by: Erik Schumann (student) | Sep 1, 2010 4:53:24 PM

As the student who originally posed this question to Professor Berman, I guess I should comment on this thread. My basic understanding of retributivism is that 1) there is a such thing as right and wrong, 2) people who do wrong are bad, 3) bad people deserve punishment for the wrongs they commit. This is of course a very "dumbed-down" version of the punishment theory, but it is helpful to me to have it distilled this way in my mind.

When we learned about this theory in class, we referenced some state and federal statutes that seemed to contain retributivistic ideas that the punishment should be as much as needed to satisfy "justice". I then began to wonder if there is a built-in religious underpinning to this type of thinking. After all, if we say that there are such things as "right" and "wrong", where do they come from and how do we define them? Do we define them subjectively? For example, if I say, "Something is wrong because I REALLY feel it in my heart!", would it be reasonable to base the laws of society on that? Of course not. How about if we say, "Something is wrong because it goes against the goals of society?" Does that mean that slavery is not inherently wrong if the majority of society accepts it as good? How about the mass murder of Jews? Marriage and sex with girls under the age of 18? Cannibalism? Even attempts to say "right and wrong can be empirically determined by which does the most societal good" is really a circular argument. After all, what is good? What goals of society are we trying to advance through good? What if two societies have conflicting goals? Which one is "right"?

It seems to me that any attempt to define right & wrong or good & bad through some subjective standards can end up taking us to some scary places. My understanding of retributivism is that it views right and wrong as objectively defined. So where does this right and wrong that transcends personal beliefs or societal norms come from? Is it anthropologically based? Our animal instincts tell men to spread their seed...does this make adultry or rape ok? If not anthropology, then what?

My guess is that if you peel back the layers until you get to the core, the only logical bases for ideas of absolute right and wrong is that they come from an absolute authority who has the power and the right to define them. In fact, the very idea that justice must be done seems to echo the Bible teaching that some type of sacrifice is required for all sins in order to satisfy justice.

Please argue or point out the flaws in my argument as you see fit. However, remember that I have been a law student for exactly two weeks and try not to be too harsh!

Posted by: Keith Edwards (student) | Sep 2, 2010 12:03:01 PM

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