Retributive Justice Again

I rail periodically against retribution as a notion of justice here on the blog. I suppose it is an artifact of my interests in religion, human nature, and criminal justice that keeps this topic always relevant to me and makes me want to dwell on it at painful lengths. I spent the last couple of days trying to catch up my blog-reading… where thousands of posts piled up since before Christmas. I had to mark most of them read without even scanning headlines, but I managed to read a few interesting posts. One of them was from John H. Hobbins on Enthusiasm for Retributive Justice. It’s a nice post, covering some interesting angles, and giving me a jumping off spot for a couple of my own.

My first thought goes to the religious angle. John is an Evangelical (and reasonably conservative) Christian. As such, it is worth noting that his attitude toward retribution as justice is – if I read him right (which is often hard for me to do because his communication style is often very… “poetic”, and sometimes I find him hard to pin down) – a negative one. If I do read him right then I would want to keep that in my pocket for later discussions. I would like to show evidence that non-retributivism is not a “secular liberal” viewpoint – and such attitudes and arguments from conservative Christians serve as good evidence for that point.

This is especially important in discussions of doctrines of Hell. Most defenses of traditional notions of Hell rely on the notion that God is Just and that his Justice is a retributive one, though that latter point is normally obscured as much as possible from the defense itself if not from the consciousness of the person presenting it.

As discussed before, one’s theory of what properly constitutes justice should inform one’s view on whether or how retribution can serve the cause of or even be considered as justice. In Hobbins’ case, his objection to retribution doesn’t seem to derive from a theory of justice quite so much as it does from a theory of Scripture, but I’ll take what I can get here. My contention is that upon reflection, no theoretical system of justice that reflective, modern thinkers would find worthy of the name allows for the derivation of an important role for retribution – and certainly none would allow for retribution to be defined as justice.

Hobbins mentions the potential role of retribution in bringing “closure” for family victims of “Capital” crimes in terms suggestive of a Trojan horse. Whether or not that is its intended goal, it is an interesting puzzle. Should we take a family victim’s self-analysis as sufficient reason to consider that retribution has a restorative role in bringing closure? I don’t know – I’m skeptical on this – but more importantly, even if we do acknowledge that role, we are not advocating retribution qua retribution, but rather on the theory that it plays a restitutional role (one that could not possibly apply to arguments on the traditional doctrines of hell, for instance).

I think, whether Hobbins has also considered the question in terms of ethical theories of justice or not, he and I would agree that real justice is essentially preservative, preventative and restorative in nature. In other words, a just effort is one that seeks to preserve what is right, prevent wrong from happening, and to restore the right when a wrong has been done – all while avoiding greater wrongs.

Where I believe we differ a tad is on the political side of the question. I quote:

On the other hand, the fact that redistributive justice – which those same people usually affirm – is a type of retributive justice is almost universally overlooked. You know, progressive taxation, affirmative action, things like that. The feeling seems to be that redistributive justice cannot be a form of retributive justice.

I find this statement extremely revealing of a difference in perspective between advocates and detractors of what Hobbins calls “redistributive” justice.

In fairness to his view, there is a contingent among advocates of progressive taxation or affirmative action that do hold and argue for a retributive role for both – especially for affirmative action, when you consider the “reparations” movement and ’60′s radicalism.

In fairness to the rest of us and myself, it is neither necessary nor particularly common to advocate progressivism with the motive of retribution. In fact, I view progressive taxation exclusively in terms of preservative justice – maintaining a right economic system by avoiding the systematic or institutional transfer of un-earned riches into the hands of the wealthy and out of the reach of the nation that helped produce them and needs them to continue to live and function.

That isn’t to say that none of my political or economic opinions have room for punitive measures against wealthy abusers, or that my temperament doesn’t sometimes allow me retributive feelings against the same. But I don’t feel that wealth is itself an abuse and I am capitalist enough that I salute the industry of those who have achieved it. It is admiration that figures into my view of those wealthy, not retribution. And it is preservation that wholly informs my support for progressivism.

That this conservative sees progressivism as a form of retribution explains why he would take a dim view of progressivism. And it shows that there is a real communication breakdown between the progressive and conservative sides.

In any case – I’m glad to share with Hobbins a skepticism about enthusiasm for retribution. Human nature is such that the desire for it is – as Jesus said of the poor – always going to be with us. Research shows that the desire to punish wrong-doers is a strong psychological pre-disposition in humans, and suggests an evolutionary explanation for why this is so. Experience teaches us that most of us will justify those desires and the expressions of them by looking at them as elements of a worthwhile cause, such as justice.

We won’t rid ourselves of the desire to return ill for ill. But, we can reason better about that desire. We can recognize it as an emotion – even as a legitimate emotion. At the same time, we can recognize that it does not fit a properly understood theory of justice. We can recognize that indulging that emotion, in many cases, can be contrary to justice and contrary to a well-ordered society.

So, if any progressives out there advocate “redistributive” justice (for lack of a better word) out of a visceral desire for retribution as Hobbins perceives, it’s worth taking a second look at your goals and priorities. If advocates of the death penalty have retaliation mixed in amongst your justifications for it, it’s worth revisiting the role emotion plays in your theory of justice. And, if you are defending a traditional notion of Hell on the basis that God is “Just”, it’s worth spending some time figuring out what “justice” is, and whether the quintessentially human desire for revenge is really properly called by that name.

6 comments to Retributive Justice Again

  • So what kind of Just sentencing you favor? Assuming a finding of Guilt, what’s the sentence?

  • Bill,

    Meting out justice is, under the best of circumstances, a complex and difficult proposition. It would barely be useful for me to answer by telling you “life imprisonment for X class of guilty verdicts”. Better to re-iterate the principles upon which such decisions should be made.

    I didn’t spell it out before, but I do subscribe to the principle that a sentence should be commensurate with the crime as a limiting criteria (this goes under the heading of preserving right – by not “righting” one wrong with a greater one). In other words, chopping off a hand in response to theft should be considered out of order even if amputation is shown to be an effective deterrent to future theft.

    As a corollary to this, an evaluation of the responsibility of the perpetrator should be taken into consideration: a child is not considered to be as much cognizant of or responsible for his own actions as an adult, and in most cases the severity of the punishment should be reduced by an amount that corresponds to the child’s inability to be fully responsible for his own actions. A similar principle should hold for the mentally retarded, and others who are less than fully responsible for their own actions.

    Apart from those considerations, I think those things I mentioned in the post should be the guiding principles.

    Since a wrong has already been committed, it is no longer the function of justice to merely preserve what is right – it must evaluate the threat of future wrongs coming from the same perpetrator, and take steps – up to and including incarceration – to prevent them from recurring. Rehabilitation, insofar as it is deemed possible, also falls under the heading of prevention, as a successfully rehabilitated offender is not a repeat offender.

    Arguments for capital punishment vary and most include the theory of “deterrence”. While that theory doesn’t hold up to factual investigation, this is usually the only “serious” argument that follows a principle of justice. If the death penalty were an effective deterrent, then it would serve the purpose of preventing future wrongs.

    Restoration (aka restitution), where possible, is equally important. This is where there is room to argue for family victim “closure” as an element of justice. If by the choice of sentence it is possible to in some way restore the peace of mind that family victims of a homicide have lost, then that option is worth exploring – though it must still be balanced against other considerations. I am somewhat skeptical of the invocation of “closure” in arguments supporting capital punishment, but I do acknowledge that, in terms of restoration, it is worth considering. Restoration can also include fines – criminal or civil – in order to restore lost or damaged property. It can include community service.

    Rehabilitation is also a worthwhile goal of society quite apart from the process of justice. Rehabilitating a person who has lost their way should also be an act of loving-kindness meant to help our fellow citizens escape their destructive habits and attitudes. Moving away from discussions of the polity of justice, I think we enhance our moral standing as a nation if we show this kind of compassion to one another.

  • Oh, yeah – these are general principles. They are also bound up with a lot of practical matters, especially in specific debate like the death penalty debate. Obviously the fallabililty of the verdict is a consideration… coupled with the extremity and finality of the death penalty there is the obvious problem of executing the innocent – a great wrong that cannot be mitigated at all. Then there are probably a thousand other pragmatic considerations that spiderweb out and become the whole body of thinking and debate on criminal justice. Please don’t take my above statement of principles to be a comprehensive statement on how the sentencing of the guilty should be done. They are meant to be very general indeed. They are related to the ethical theory of justice rather than the nuts and bolts of its application.

  • I feel bad about not interacting with you in connection with this post. It just got away from me, more than once.

    The topic keeps coming up in other shapes and forms. Right now, there is the quite the blogstorm on it: For example:

    I hope you will find the time to join the conversation. I can think of few people more than you who are willing to think through these issues with care.

  • Can I second John’s comment above. I linked from his post and, having now read your thoughts here, would be interested to broaden the discussion.

  • John – very kind of you to say. My life has changed a bit lately – I don’t have nearly the time to spend on the internet that I once did. I jotted a “quick” note in your thread, but I am going to try to make time to join the conversation more fully later today. Thanks for letting me know about the discussion and inviting me to participate!

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