Analysis Of Forfeiture-Based Retributivism By David Boonin

Forfeiture-based retributivism is a solution to justifying punishment. Forfeiture-based retributivism claims that it is morally permissible to punish an individual who has committed an offence because they have violated another individual’s right to something and there for forfeit the same right or one similar (Boonin p.105). This essay will cover some of the objections that David Boonin presents for forfeiture-based retributivism and why I think his objections do not work

The First objection I will cover is the rights without duties objection. Within forfeiture-based retributivism there is an argument called the rights-duties argument, this says that in order to have rights there are duties that we have to perform (Boonin p.107). The rights-duties

argument is a major part of forfeiture-based retributivism because it establishes that if an individual fail to perform their duties they lose the associated right; it also helps to block against punishing the innocent in the sense that only those that have committed a crime lose their rights because they have failed to fulfill their duties there for it is morally impermissible to punish an innocent person because they have not failed to perform their duties (Boonin p.107). Boonin’s rights without duties objection is exactly what it sounds like, essentially what this mean is that there are those that we perceive as having rights but do not have duties, for example pets, and babies. Boonin argues that because small children and animals cannot be held accountable for their action then they have no duties to fulfill there for have no rights, but he says most people would assert otherwise putting forfeiture-based retributivism in an awkward position of giving rights to those who should not have them thus invalidating it (Boonin p.107). The response given for Boonin’s objection is that for someone to have a certain right it is their duty to respect that same right in others so long have the have the ability to do so, this means that pets and babies can still have rights because they even though they do not have the able to perform their duties (Boonin p.108). There are two further objections that Boonin make to this response, the first one being that the claim is impromptu and only exist to solve a problem pointed out by his objection, the other objection is that “…this stipulation would render vacuous the claim that everyone who has rights has duties.” The problem I have with Boonin’s first claim is that I don’t find it relevant that the response is ad hoc if it helps to explain why someone would have rights without being obligated to fulfill their duties. As for his second objection my problem with that is he is just jumping to an extreme with his example saying that a grain of sand has rights because if it had the ability to fulfill its duties it would, which I think make Boonin himself sound vacuous because he fails to make the distinction that unlike a grain of sand a human child can over time gain the ability to make good on his or her duties (Boonin p.108). As for animals and their rights I feel like it’s simple enough to say that in some limited capacity that animals may have their own version of morality so who are we to say that they are not fulfilling some form of duty.
The next objection from Boonin I will be covering is the unforfeited right objection.

This objection says there are certain rights which one cannot be morally forfeited even if a person has violated another individual’s right to the same thing (Boonin p.110). One of Boonin’s examples is that if a judged presiding over a case accepted a bribe there for violating the offender’s rights to a fair trial does the judge lose his right to a fair trial (Boonin p.110). Boonin claim that in the case of the judge that it is morally impermissible revoke her right to a fair trial even if she has done the same to another. Now the obvious reply to Boonin’s objection is that forfeiture-based retributivism does allow for another equal right to be forfeited instead of the original right. Boonin’s response to the reply is if the right an offender has violated is one which he himself cannot forfeit then how can an equal right also be forfeited (Boonin p.111). If we go back to Boonin’s judge example, we see that the judge has violated an offender’s right to a fair trial but that she herself is unable to forfeit that same right. Following the logic of Boonin’s objection any right that could be equal to the right to a fair trial would also be have to be an unforfeited right; the problem is not that it morally impermissible to revoke her right to a fair trial, but that forfeiting that right would cause her other rights to be violated. The point of a trial is to determine if a person is guilty of

violating another’s rights, but if you revoke the judge’s right to a fair trial then you are assuming that she is guilty causing situation were for all anyone know an innocent person could be punished which mean that the judges rights could be violated. If the judge’s rights to a fair trial is replaced by some other equal right then it can be forfeited so long as there isn’t the possibility of violating one of her intact rights. Another example would be if someone was guilty of torturing another person, so why is the torturer unable to forfeit their right to no being tortured, the answer to that being his right to not be punished by cruel and unusual means will be violated. The question now becomes what right could the torturer forfeit that is both non-cruel and is equal to that of torture, the answer to that would be to find an appropriate punishment that is not as intense as being tortured but just as harmful, for instance locking someone up for twenty-five years could to some be just as harmful as torture but nowhere near as intense.
The last objection to be covered will be the private retaliation objection, this objection come from the concern that that forfeiture-based retributivism makes it morally permissible for private citizens commit offences against offender because they no long have a particular right (Boonin p.114) Boonin believes that it is not moral for people to simply go running around committing heinous act against another individual simply because their rights are forfeit, for this reason he believes that forfeiture-based retributivism should be rejected as a solution (Boonin p.114).

Boonin also mentions that those trying to defend forfeiture-based retributivism are not only defending “… claim that it is permissible for the state to punish, but the claim that it is permissible to for the state to have a monopoly on punishment.” And insinuates that if you believe those claim you should reject forfeiture-based retributivism (Boonin p.115) To be honest I do agree that even if for instance someone forfeited their right not to be stabbed that private citizens should be going around trying to stab that person, but even then I don’t think Boonin is right to just reject forfeiture-based retributivism. I think it work because of the monopoly that the state has on punishment even if Boonin wants to claim that just further invalidation; the reason I think it works is because not only do I believe that the state has been given the right to carry out a punishment, but that also people have a right

to have their punishment be enacted in proper and controlled manner that is not possible from a singular private citizen.
I find Forfeiture-based retributivism to be an acceptable solution to problem of justifying punishment; it seems to do a better job at giving a moral justification for punishment. I will however accept that forfeiture-based retributivism does on some levels have flaw, but trying to find a perfect justification for something with such an unclear definition as punishment is unrealistic. The definition of punishment is fluid changing as those who utilize its power contort it to meet their needs (Nietzsche p.53). So for now forfeiture-based retributivism seems to be descent justification for punishment as we know it now, and that Boonin’s objection come across as trying to be perfectionist as well as trying to depict a concept of deep complexity as just a black and white matter.