Philosophy of Law: A Defense of Retributivism
With the field of philosophy, the concept of "desert" suggests the status of deserving a particular response based upon prior action. The term is often invoked within conversations dealing with blame and justice. However, philosophers disagree on whether desert justifies responsive behaviors such as punishment or revenge. This debate is particularly significantly within the context of a legal system that purports to punish criminals in a manner that is consistent with their crimes.
This paper considers the desert arguments raised to support retributivism, or retribution. Retributivism is "the application of the Principle of Desert to the special case of criminal punishment." Russ Shafer-Landau and James Rachels offer very different perspectives on moral desert which ground their differing views on the appropriate response to wrongdoing. In "The Failure of Retributivism," Shafer-Landau contends that retributivism fails to function as a comprehensive theoretical foundation for the legal use of punishment. In contrast, in his article "Punishment and Desert," Rachels uses the four principles of guilt, equal treatment, proportionality and excuses to illustrate the superiority of retribution as the basis for the justice system over two alternatives: deterrence and rehabilitation. Their philosophical treatment of the term leads to divergence on the justification of legal punishment. Ultimately, Rachels offers a more compelling view of desert than Shafer-Landau and, subsequently, better justifies his endorsement of a retributive justice system.
Shafer-Landau, Moral Desert and Retributivism
Shafer-Landau begins his article by arguing that three considerations lay the foundation for the d...
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...ributivism. Until human beings have the capacity to ensure that an innocent person can never be executed for a crime committed by someone else, a ban on executions may be the most morally justified response.
Conclusion
Ultimately, Rachels offers a more comprehensive consideration of the different potential interpretations of moral desert. His comparison of three legal responses using four distinction values make it very clear to the reader that, despite concerns over the value of moral desert, retribution is the most desirable option currently available to the criminal justice system. His evaluation of retributivism, deterrence and rehabilitation answers Shafer-Landau's central assertion that a comparative evaluation of retributivism could not be made within a short article. Furthermore, Rachels's argument is more pragmatic, making intuitive sense to those who may
Consequentialism is a punishment theory that provides moral justification for punishment by taking into account future consequences and by weighing the intrinsic value of a punishment against other available alternatives. The primary rationale for punishment is to bring the most good over harm, to deter or prevent crimes from occurring in the first place and to prevent future crimes from being committed. Utilitarianism would even consider punishing the innocent or pass a more severe sentence for a lesser crime if it could be determined that benefits to society outweighed the consequences of such punishment (Howard). For example, if it were believed that better crime deterrence or prevention could be achieved, a consequentialist would consider executing a murderer versus handing down a life sentence. Retributivism is a punishment theory that looks back at the specific nature of a crime and determines how much the victim suffered, in order to morally justify the severity of punishment. The moral emphasis is on righting a wrong and seeking justice by ensuring that criminals get what the...
The court handles all cases with extreme seriousness; however, different cases are handled differently. For instance, murder cases have different pre-trial procedures to be followed as compared to a case like violation of traffic rules. This paper outlines philosophers’ view of punishment and how the County District Court Division handles capital punishment.
However, the second premise focuses on aspects of the problem of strict criminal liability and the degree of the punishment that is executed by a legal act of an official. Feinberg’s view of strict liability in terms of criminal offenses in which there is no fault such as hefty fines (or civil penalties) for not obeying traffic laws is that the legal system should hold the same strict liability for imprisonment as well (Feinberg 417). As for the degree of punishment he argues that hard treatment and symbolic condemnation are truly necessary to complete a sufficient definition of
Igor Primoratz defends the retributivist idea that a punishment is justified only if it gives a criminal his just deserts. But what do criminals deserve? Primoratz argues for the following principle: criminals deserve to be deprived of the same value that they deprived their victims of. Primoratz regards all human beings as possessed of lives of equal moral worth, and believes that the human life is the most valuable thing. He thinks that murders deserve to die. Since justice is a matter of giving people what they deserve, it follows that justice demands for murderers to be executed.
There is some theoretical ambiguity in the meaning of Restorative Justice in spite of the many definitions and studies done on the subject. Restorative Justice has been defined as “an ethos with practical goals, among which to restore harm by including affected parties in a (direct or indirect) encounter and a process of understanding through voluntary and honest dialogue.” It is primarily concerned with the reinstatement of victims to life before the crime, restoration of the Offender to a well behaved and lawful life, restoration of the injury caused to the community and the creation of a better society in the present and the future.
Not only has there been debates about what approach should be used when punishing juvenile offenders, but there has also been debates about the need for two separate justice systems. Some individuals believe that juveniles need to be punished for their delinquency by being sentenced to jail just as an adult offender would be. According to Urban, Cyr, and Decker (2003), The Violent Crime Control Act of 1995 allows juveniles who are 13 years old and up to be sentenced as an adult if they have committed a violent crime with a fire arm on federal property. Advocates of such acts believe the juvenile justice system has failed at “rehabilitating” offenders by placing more focus on rehabilitation and treatment practices. Because of this these advocates
The symbol of the Canadian judicial system is the balanced scales of justice. When a wrongful act is committed, the scales of justice are greatly misplaced and require a solution to counterbalance the crime and restore balance. Additionally, the scales represent the idea that law should be viewed objectively and the determination of innocence should be made without bias. The Canadian criminal justice system encapsulates the idea of the scale of justice, to control crime and impose penalties on those who violate the law. One of the most important aspects of this system is that an individual charged with a criminal offence is presumed innocent until proven guilty beyond a reasonable doubt. The current system has two prevailing methods involved in the process of dealing with crime: Retributive and restorative justice. This paper will analyze aspects of retributive justice and restorative justice, with reference to their respective philosophies, for the purpose of finding which is more effective at achieving justice and maintaining balance.
Retribution is the philosophy best explained by the famous saying, “an eye for an eye”. Those that believe in this form of justice hold a strict and harsh view on punishments for crime. The proponents of retribution believe that severe penalties act as deterrence to future crime, however, studies
indeed act as a deterrent on criminal homicide. Is the theory of “Just Deserts” (Bedau,
Herbert Morris and Jean Hampton both view punishment as important to a healthy society. However, their views on what kind of role does punishment plays in a healthy society are vastly different. Morris believes that when one commits a crime they “owe a debt to the society and the person they wronged” and, therefore the punishment of that person is retributive, and a right for those who committed this wrong (270). Hampton, on the other hand, believes that punishment is a good for those who have strayed in the path of being morally right. Out of the two views presented, I believe that Hampton view is more plausible, and rightly places punishment as a constructive good that is better suited for society than Morris’s view.
ABSTRACT: Both utilitarians and the deontologists are of the opinion that punishment is justifiable, but according to the utilitarian moral thinkers, punishment can be justified solely by its consequences, while the deontologists believe that punishment is justifiable purely on retributive ground. D. D. Raphael is found to reconcile both views. According to him, a punishment is justified when it is both useful and deserved. Maclagan, on the other hand, denies it to be justifiable in the sense that it is not right to punish an offender. I claim that punishment is not justifiable but not in the sense in which it is claimed by Maclagan. The aim of this paper is to prove the absurdity of the enquiry as to whether punishment can be justified. Difference results from differing interpretations of the term 'justification.' In its traditional meaning, justification can hardly be distinguished from evaluation. In this sense, to justify an act is to say that it is good or right. I differ from the traditional use and insist that no act or conduct can be justified. Infliction of punishment is a human conduct and as such it is absurd to ask for its justification. I hold the view that to justify is to give reason, and it is only a statement or an assertion behind which we can put forth reason. Infliction of pain is an act behind which the agent may have purpose or intention but not reason. So, it is not punishment, but rather statements concerning punishment that we can justify.
A problem since time immemorial has worried men is determined to what extent and to what point is legitimate to punish who has committed an offence. The punishment is a form of physical, moral suffering arising as natural and spontaneous response to an offence who, in turn, of
When someone is legally convicted of a capital crime, it is possible for their punishment to be execution. The Death Penalty has been a controversial topic for many years. Some believe the act of punishing a criminal by execution is completely inhumane, while others believe it is a necessary practice needed to keep our society safe. In this annotated bibliography, there are six articles that each argue on whether or not the death penalty should be illegalized. Some authors argue that the death penalty should be illegal because it does not act as a deterrent, and it negatively effects the victim’s families. Other scholar’s state that the death penalty should stay legalized because there is an overcrowding in prisons and it saves innocent’s lives. Whether or not the death penalty should be
Punishing the unlawful, undesirable and deviant members of society is an aspect of criminal justice that has experienced a variety of transformations throughout history. Although the concept of retribution has remained a constant (the idea that the law breaker must somehow pay his/her debt to society), the methods used to enforce and achieve that retribution has changed a great deal. The growth and development of society, along with an underlying, perpetual fear of crime, are heavily linked to the use of vastly different forms of punishment that have ranged from public executions, forced labor, penal welfare and popular punitivism over the course of only a few hundred years. Crime constructs us as a society whilst society, simultaneously determines what is criminal. Since society is always changing, how we see crime and criminal behavior is changing, thus the way in which we punish those criminal behaviors changes.
Punishment has been in existence since the early colonial period and has continued throughout history as a method used to deter criminals from committing criminal acts. Philosophers believe that punishment is a necessity in today’s modern society as it is a worldwide response to crime and violence. Friedrich Nietzche’s book “Punishment and Rehabilitation” reiterates that “punishment makes us into who we are; it creates in us a sense of responsibility and the ability to take and release our social obligations” (Blue, Naden, 2001). Immanuel Kant believes that if an individual commits a crime then punishment should be inflicted upon that individual for the crime committed. Cesare Beccaria, also believes that if there is a breach of the law by individuals then that individual should be punished accordingly.