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Reciprocity as a justification for retributivism.

Retributivism is regarded by many as an attractive theory of punishment.(1) Its primary assumption is that persons are morally responsible agents, and it demands that the social practices of punishment acknowledge that agency. But others have criticized retributivism as being barbaric, claiming that the theory is nothing more than a rationalization for revenge that fails to offer a compelling non-consequentialist justification for the infliction of harm. Much of the contemporary philosophical literature on retributivism has attempted to meet this criticism.(2) One common move has been to recast retributivism within the social contractarian tradition. The argument is that the justification for retributive punishment flows naturally from social contractarian political theories. Thus, not only is it reasonable to claim that wrongdoers merit punishment independent of any consequentialist concerns, but that fairness requires retributive punishment. While allying retributivism with social contractarianism provides retributivism with a nonconsequentialist justification for punishment (one fuller and less problematic than the conception of "desert" that worries the critics of retributivism), I will argue that far from strengthening the justification of retributivism, social contractarianism weakens it. For this version of the theory invites the Marxist charge that our society is ordered by profoundly unfair political and social institutions, and that to justify punishing the criminals disadvantaged by such institutions with the claim that fairness requires their punishment approaches a cruel joke. Some have defended the contractarian-based theory of retributivism against the Marxist criticism by claiming that it does not require the punishment of such individuals precisely because social relations are unfair. I will conclude in this paper that although such a move is appealing, it is untenable. And if such a move is not open to the retributivist, she is now in the uncomfortable position of either turning a blind eye to the injustices by which many criminals are victimized or abandoning her retributivist intuitions (the very intuitions that drove her to social contractarianism to bolster her theory of retributivism in the first place). I will conclude that attempts to bolster retributivism by appeal to social contractarianism should be abandoned and retributivists ought instead to seek to develop their theory of punishment within an alternative type of political theory.

I The Basic Assumptions of Retributivism

There is no definitive version of retributivism. Theories differ in how they justify punishment and in how they explain which acts can be appropriate forms of punishment. They even disagree about the purpose of the practice of punishment. Despite these great differences, there are some very basic similarities that underlie the various theories, all of which are evident in what Hart refers to as the "crude model" of retributivism.(3) This model of retributivism makes three basic claims.

The Principle of Willful Wrongdoing (WW)

The first claim is that the justification for punishing the wrongdoer rests solely on the blameworthiness of the offender and the wrongness of the offender's will. Thus a person may be punished if, and only if, he has willfully done something wrong.(4) Unintentional harms are not willful wrongs, and, thus, animals, very young children, and the mentally incapacitated cannot commit crimes though they can, of course, present a danger to the society. Measures taken to prevent such individuals from harming others (or measures taken to ensure they are no longer threats) are not, properly speaking, acts of punishment.

The Proportionality Principle (PP)

The second claim is that the appropriateness of the form and degree of punishment comes directly out of the criminal will: the criminal, in willing the crime, has willed her own punishment. Thus the punishment must in some way match, or be the equivalent of, the wrongness of the criminal act.(5) One way to distinguish among various versions of retributivism is how they attempt to explain the idea of matching the punishment to the crime. Kant, for example, claims that the "principle of equality" determines the just measure of punishment. Kant writes:

But what kind and what amount of punishment is it that public justice makes its principle and measure? None other than the principle of equality (in the position of the needle on the scale of justice), to incline no more to one side than to the other. Accordingly, whatever undeserved evil you inflict upon another within the people, that you inflict upon yourself. If you insult him, you insult yourself; if you steal from him, you steal from yourself; if you strike him, you strike yourself; if you kill him, you kill yourself.(6)

Kant's main point seems to be that punishment ought to equal the crime in its severity; you deserve a punishment as severe as the crime you dealt. And thus we need look no further than to what the criminal has done to determine what degree of punitive response would be appropriate.

The Inherent Justice Principle (IJ)

The third claim is that punishing those who have willfully done wrong is in itself just. Unlike consequentialist theories of punishment, retributivists do not look to the benefits of punishment to justify punishing the criminal. Kant writes:

Punishment by a court ... can never be inflicted merely as a means to promote some other good for the criminal himself or for civil society. It must always be inflicted upon him only because he has committed a crime. For a man can never be treated merely as a means to the purposes of another ... The principle of punishment is a categorical imperative, and woe unto him who crawls through the windings of eudaimonism in order to discover something that releases the criminal from punishment or even reduces its amount by the advantage it promises.(8)

Hegel makes a similar point. He writes:

The injury [the penalty] which falls on the criminal is not merely implicitly just -- as just, it is eo ipso his implicit will, an embodiment of his freedom, his right; on the contrary, it is also a right established within the criminal himself; i.e. in his objectively embodied will, in his action. The reason for this is that his action is the action of a rational being and this implies that it is something universal and that by doing it the criminal has laid down a law which he has explicitly recognized in his action and under which in consequence he should be brought as under his right.(8)

Not only are we not acting impermissibly when we punish a criminal, we are fulfilling her right. When she acts, she lays down a "law" that she recognizes. In being punished, the criminal is being "honored as a rational being," not treated as a means to social order or as a dangerous animal.(9) Thus the purpose of punishment is not to cure the criminal, deter future crime (committed by the criminal or others), send a message, or mollify those harmed by the crime. The fact that the criminal has willfully done wrong is in itself a justification for inflicting him with harm.

The Necessity of Punishment Principle (NP)

Both Kant's and Hegel's theories of retributivism add one further claim to the crude model. The addition of this claim yields what Hart called the "severe model" of retribution.(10) This principle claims that punishment is not only permissible, it is obligatory. To fail to punish a crime is to permit an injustice to exist. Kant writes:

Even if a civil society were to dissolve itself by common agreement of all its members (for example, if the people inhabiting an island decided to separate and disperse themselves around the world), the last murderer remaining in prison must be executed, so that everyone will duly receive what his actions are worth and so that the bloodguilt thereof will not be fixed on the people because they failed to insist on carrying out the punishment; for if they fail to do so, they may be regarded as accomplices in this public violation of legal justice.(11)

Hegel agrees that punishment is obligatory. He claims that although the criminal will has existence, it is a "nullity" and that it does not have positive existence because it is self-contradictory-contradictory.(12) However, the criminal will cannot simply be ignored as nonsensical or incoherent, for it alters" something in some way." That is to say, the will establishes the criminal assertion of power as valid and the rights of the victim as invalid. Punishment is therefore a necessary response to a criminal will. It is the "second half" of that will, the proper and complete manifestation of that will that makes vivid the incoherence and wrongness of the first half and thereby establishes wrong as invalid and right as valid. Thus, right requires that the criminal will be negated through punishment.

Any theory of retributivism holds WW, PP and IJ even if it is intended to address other concerns, and the most famous versions hold NP as well. I shall be referring to all four principles.(13)

II The Basic Assumptions of Social Contractarianism

Just as there are many versions of retributivism, there are many versions of social contractarianism. And as with retributivism, a few basic principles underlie all social contractarian theories.

The Principle of Natural Equality (NE)

All social contractarians claim that the individuals in a society are in some sense equals. Exactly in what way we are equals depends on the particular theory. Hobbes famously argued that we are so sufficiently similar that each of us is equally vulnerable to the threats of others. He writes:

[W]hen all is reckoned together, the difference between man, and man, is not so considerable, as that one man can thereupon claim to himselfe any benefit to which another may not pretend, as well as he. For as the strength of body, the weakest has strength enough to kill the strongest, either by secret machination, or by confederacy with others ... And as to the faculties of the mind ... I find yet a greater equality among men, than that of strength. For Prudence, is but Experience; which equal time, equally bestowes on all men, in those things they equally apply themselves unto.(14)

Locke emphasizes the normative equality of persons. He writes:

To understand Political Power right, and derive it from its Original, we must consider what State all Men are naturally in, and that is, a State of perfect Freedom to order their Actions, and dispose of their Possessions, and Persons as they think fit, within the bounds of the Law of Nature, without asking leave, or depending upon the Will of any other Man. A State also of Equality, wherein all the Power and Jurisdiction is reciprocal, no one having more than another ....(15)

We have equal rights and are equally free from the authority of others. Thus, no one can legitimately control anyone else or exercise freedom that others cannot.(16)

The Principle of Mutual Benefit (MB)

Social contractarian theories further claim that the political system is a system that is best understood as a collection of rules that mutually benefit the members of that society. The specifications of what those rules are and the reasons given for why we have an obligation to obey them will vary from theory to theory. Hobbes, for example, claims that it is because the rules are mutually beneficial that they are binding.(17) Locke, on the other hand, claims that the rules are both binding and mutually beneficial, but their bindingness is not merely a function of their being mutually beneficial. Instead, the rules are binding because we have actually consented (at the age of reason) to a legitimate government.(18) For present purposes, the details of the particular theories are irrelevant.

In order to enjoy the continued existence of such a system, each person must follow the rules of social cooperation, usually articulated in laws, by refraining from exploiting the burdens others undertake in following the rules while she benefits from unilaterally exempting herself. Such a system is fair, it is claimed, because each person benefits and each person is burdened. Of course the sorts of "benefits" being discussed here are those that one gets simply from being a member of a society regulated by rules, such as security of one's person and property.(19) If these rules are the sort that make it possible for one to realize (for the most part) one's interests, then one receives the benefits from that system of rules. And the "burdens" are those one bears simply in virtue of not being free to do whatever one desires. Each person bears this burden since each person must constrain the pursuit of her interests in light of these rules.

It is important to notice that only when assumptions NE and MB are taken together can the social contractarian claim that these rules are reciprocal and thus that individuals in a political community have an obligation to obey those rules. For it is only in virtue of being equals that we are equitably advantaged and equitably burdened by such a system. Were we not equals (had some individuals natural rights to goods others do not have, or a select few the right to authority over others that others do not have), we would not be equitably constrained. For those who naturally have greater freedom or power (those who have the natural right to rule others, for example) would bear a far greater burden in restraining themselves from violating these rules. Likewise, those who naturally have fewer rights enjoy benefits others do not receive.(20)

III Reciprocity Retributivism

Now that we have looked at the basic principles of the two theories on their own, let us look at this peculiar marriage of social contractarianism and retributivism. If we think of society as an aggregate of individuals who each freely choose to act (or refrain from acting) on their interests, we may properly characterize a crime as a willful choice to not resist one's temptation to break a rule.(21) In committing the crime, the criminal is freeriding; he has received the benefits of the cooperation of others without bearing the burden of cooperating himself. The criminal has "broken the contract" he is obligated to obey. Thus fairness requires that the criminal be punished. Because the justification for punishment is founded on the notion of reciprocity, I will refer to this version of retributivism as Reciprocity Retributivism.(22)

Herbert Morris is the best known contemporary proponent of Reciprocity Retributivism. He writes:

[I]t is just to punish those who have violated the rules and caused the unfair distribution of benefits and burdens. A person who violates the rules has something others have -- the benefits of the system -- but by renouncing what others have assumed, the burdens of self-restraint, he has acquired an unfair advantage. Matters are not even until this advantage is in some way erased. Another way of putting it is that he owes something to others, for he has something that does not rightfully belong to him. Justice -- that is, punishing such individuals -- restores the equilibrium of benefits and burdens by taking from the individual what he owes, that is, exacting the debt.(23)

According to Morris, rules establish "spheres of interest immune from interference by others."(24) In breaking a law, the criminal has taken advantage of the sphere of non-interference that results from the general obedience to that law. The criminal has "something that does not rightfully belong to him," but what is this "something"? It is not, for example, the ill-gotten goods acquired from committing the crime. It is instead the benefits of having a sphere of non-interference that results from the general obedience to the rules by others in his society, rules that he has chosen to violate. Because these are benefits the criminal received before committing the crime, his crime creates a debt he owes to others.

Morris's theory straightforwardly establishes the proper proportion of punishment, thus ensuring the retributivist's commitment to PP, the principle requiring that the punishment "fit" the crime. Each law creates a sphere of non-interference, and those spheres can be ranked in terms of how valuable the benefits secured by those spheres are (or, what amounts to the same thing in this model, how painful violations of those spheres are).(25) Thus assault must be punished more severely than petty theft since the benefit of a sphere of non-interference securing physical integrity is more highly valued than one securing property rights. Since crime creates a debt the criminal owes, punishment is justified because it "exacts the debt" the criminal owes and restores the fair equilibrium of benefits and burdens. Since failing to punish would be unfair, Morris has shown that retributive punishment is not only permissible (IJ), but it is also necessary (NP).

Jeffrie Murphy also develops a theory of Reciprocity Retributivism. He writes:

If the law is to remain just, it is important to guarantee that those who disobey it will not gain an unfair advantage over those who do obey voluntarily. It is important that no man profit from his own criminal wrongdoing, and a certain kind of "profit" (i.e. not bearing the burden of self-restraint) is intrinsic to wrongdoing ... And, since [the criminal] derives and voluntarily accepts benefits from [the rules'] operation, he owes his own obedience as a debt to his fellow-citizens for their sacrifices in maintaining them. If he chooses not to sacrifice by exercising self-restraint and obedience, this is tantamount to his choosing to sacrifice in another way -- namely, by paying the prescribed penalty.(26)

According to Murphy, the benefit the criminal receives from violating a rule is the freedom he enjoys from willfully refusing to bear the burdens of self-restraint (WW). Like Morris, Murphy claims that the crime creates a debt the criminal owes to others. in renouncing the burden of obedience, the criminal has acted unfairly, and it is this unfairness that gives us a reason to punish (IJ). Punishment is the means to restore the "proper balance between benefit and burden.(27) Furthermore, the criminal cannot justly complain about being punished: he has already accepted the benefits of crime; now he must shoulder the burdens (NP).

Murphy is committed to the Proportionality Principle (PP), but it is less obviously secured with his version than it is with Morris's.18 Murphy writes:

There is no reason in principle (though there are practical difficulties) against trying to specify in a general way what the costs in life and labour of certain kinds of crime might be, and how the costs of punishments might be calculated, so that retribution could be understood as preventing criminal profit. And it is certainly possible retributively to rank punishments so that the most serious punishments are matched with the most serious offenses.(29)

A common complaint against a theory of Reciprocity Retributivism like Murphy's is that such rankings cannot be determined. What is needed, critics claim, is an explanation of why murder is a more serious crime (and thus deserves a greater punishment) than tax evasion. Murphy has claimed that all crimes advantage the criminal since he is free from the burdens of restraint that others are bearing. So it may be that the more the criminal is advantaged by committing the crime (or the greater the effort required to keep from committing that crime), the greater his punishment should be. A problem with this suggestion is that it is not at all obvious that (for most people at least) more serious rule violations are any more difficult to refrain from committing than less serious ones. (Refraining from committing tax evasion and parking violations requires far more restraint, I suspect, than the restraint required to keep the average person from engaging in child molestation or murder.) If reciprocity justifies retributive punishment but does not secure the Proportionality Principle, then Murphy needs a separate principle to explain that feature of his Reciprocity Retributivism.(30)

Reciprocity Retributivism characteristically blends the basic assumptions of retributivism and the basic assumptions of social contractarianism as follows: criminal laws are characterized as rules that regulate mutually beneficial, reciprocal behavior (NE and MB); violations of those rules create an unfair imbalance of benefits and burdens (WW, NE and MB); punishment restores an equilibrium of benefits and burdens (PP and IJ); and, consequently, fairness requires the punishment of the criminal (NP). By blending the assumptions of retributivism and social contractarianism, Reciprocity Retributivism seems to have successfully addressed the criticism dogging retributivists, namely, that retributivism cannot provide a compelling nonconsequentialist justification for punishment. If we accept the social contractarian claim that we are equal, cooperating members of a society obeying a mutually-beneficial system of rules, then it seems reasonable to claim that fairness requires that transgressors be punished. Thus, retributive punishment presents itself not only as a permissible response to crimes, but also as a necessary response to crimes.

IV A Marxist Challenge

Much of the philosophical literature on Reciprocity Retributivism focuses on internal mechanics of the theory.(31) But there has been one serious (and interesting) criticism made that is aimed at the fundamental assumptions of the theory.(32) The criticism is this: although retributivism was allied with social contractarianism (to meet the criticism that retributivism cannot provide an adequate non-consequentialist justification for punishment), doing so has made retributivism susceptible to an even more virulent version of the criticism that retribution is unjustified because appeals to the obligations created by the fair distribution of benefits and burdens to justify the punishment of willful wrongs are unsatisfactory as long as we live in a profoundly unfair society. According to those making this criticism, the problem is that the reciprocal nature of social relations characterized by Reciprocity Retributivism (which is the result of the NE and MB principles) is an abstraction. And it is this abstract characterization of reciprocity that is the foundation for the justification of punishment. But as long as concrete social relations are unfair, this abstract characterization of reciprocal social relations provide an inadequate foundation for a theory of punishment that is intended to justify actual punitive practices. It is this criticism that I will now address.

To appreciate this criticism, consider that under Reciprocity Retributivism one is a beneficiary of a system of rules simply in virtue of being a participant in a system that provides the security necessary to pursue one's interests and engage in cooperative activities. Likewise, in such a theory one is said to be burdened by those rules even if one's interests are such that the pursuit of those interests is not hampered by those rules in any way. It is consistent with all citizens sharing in the benefits of the system of rules that there be nonetheless some individuals not equally advantaged with respect to the other members of society.(33) For example, those individuals who own more property, or who are members of a dominant religion, sex, or race will have greater advantages than those individuals who do not. A society with disadvantaging social policies or political institutions will have (at least) two separate communities. These communities, although they lie side by side and are formally integrated, are not actively integrated. The advantaged members are members of one community while the disadvantaged individuals belong to the other community. Members of both communities are equals in the sense that all individuals are regarded as citizens and are held accountable to the laws of that society. At the same time they are not equals (they are not on a fair and level playing ground) because political institutions and policies are advantageous to one community and disadvantageous to the other.(34)

What this discussion shows is that there are two senses of "fairness" at work which we must keep distinct. The fair distribution of benefits and burdens that arises from general obedience to a mutually advantageous system of rules is what I will call, for lack of a better word, "abstract." However, social policies or institutions that ensure that all are equally advantaged benefit individuals in a significantly different way, and the sort of fairness secured by such policies is "concrete."

One can be in an abstractly fair, reciprocal relationship with all other members of one's society even if one is in a concretely unfair relationship. Security is commonly used by social contractarians as an example of a benefit of a system of rules, a benefit one enjoys and is obligated to bear the burden of securing for others in one's society. All are required to refrain from harming others, and all, as a result, enjoy freedom from harm by others. The fairness of this reciprocal relationship is abstract, though, because one is advantaged in such a system even if one is the victim of crime -- even if one is frequently the victim of crime. Despite the overt evidence that one is worse off than others in one's society (those who have never been victimized, say), one is still, according to the social contractarian (and, therefore, the Reciprocity Retributivist), in a fair relationship vis-a-vis others, and therefore one is obligated to maintain that fair system. Being a victim of a crime does not free the victim from the burdens of compliance -- and this is the case even if a person is frequently unfortunate enough to be the victim of crime.(35) its such a person is not, in a very real sense, in a fair, reciprocal relationship with others. The person who is frequently -- perhaps daily -- the victim of crime, in the way that individuals who live in a ghetto are, lives a life of violence that those who live outside ghettos find difficult even to comprehend. Such individuals are not fairly situated vis-a-vis others in their community because they do not experience the same advantages as others. The disadvantages such individuals face are concretely unfair.

Can Reciprocity Retributivism convincingly justify the punishment of one who breaks a rule if that person is disadvantaged by concrete unfairness (racist social and political institutions, say) through claiming that punishment is necessary to rectify an "imbalance" created by his crime? Consider the following case. Smith, a black man, enters a bar in which several white men are sitting. One white man calls the black man a racial slur and Smith assaults him. Because of the sort of society we live in, it would be naive to regard this case merely as a hothead overreacting to hurtful words. Racial slurs are painful reminders to members of racial minorities that they are political and social inferiors. Such words validate the already existing disadvantaging social and political relations that profoundly limit the opportunities of those victimized by racism. In assaulting the bigot, Smith demonstratively rejects the bigot's message and asserts his own message -- that he qua black man is not a person to be ridiculed or belittled.

According to Reciprocity Retributivism, Smith's crime, in virtue of its being criminal, creates an (abstractly) unfair balance of benefits and burdens, and for that reason his punishment is justified. He is, as all of us are, obligated to refrain from harming others -- even bigots. Since it is not the fair distribution of concrete advantages and disadvantages that grounds reciprocity retributivism and since experiencing concrete unfairness does not free one from the obligations of abstract fairness, Reciprocity Retributivism claims that the punishment of Smith is justified.

But to those who worry about the concrete injustices in our society, Reciprocity Retributivism's treatment of the Smith case will cause unease because, they insist, this is not merely a case of a person failing to restrain from harming others, but the case of a person who has long suffered indignities and stunted opportunities for wholly unfair reasons. What seems deeply disturbing about the Reciprocity Retributivist justification for punishment is not the answer that the theory provides (that Smith's action is a crime that merits punishment) but the inability of this theory to take into account the profoundly unfair relations that hold between communities in this society. This theory is unsatisfactory because it cannot acknowledge that, in some significant way, being long-suffering of concrete unfairness is suffering a greater wrong than the wrong created when committing a crime.

Marx famously voiced his suspicions about theories of retributive punishment founded on abstractions that fail to consider concrete social relations when he wrote:

From the point of view of abstract right, there is only one theory of punishment which recognizes human dignity in the abstract, and that is the theory of Kant, especially in the more rigid formula given it by Hegel. Hegel says: "Punishment is the right of the criminal. It is an act of his own will. The violation of right has been proclaimed by the criminal as his own right. His crime is the negation of right. Punishment is the negation of this negation, and consequently an affirmation of right, solicited and forced upon the criminal by himself."

There is no doubt something specious in this formula, inasmuch as Hegel, instead of looking upon the criminal as the mere object, the slave of justice, elevates him to the position of a free and self-determined being. Looking, however, more closely into the matter, we discover that German Idealism here, as in most other instances, has but given transcendental sanction to the rules of existing society. Is it not a delusion to substitute for the individual with his real motives, with multifarious social circumstances pressing upon him, the abstraction of "free will" -- one among the many qualities of man for man himself? ... Is there not a necessity for deeply reflecting upon an alteration of the system that breeds these crimes, instead of glorifying the hangman who executes a lot of criminals to make room only for the supply of new ones?(36)

Here Marx is not denying any of the basic principles of retributivism. Instead he is drawing our attention to the "specious" claim that retributive punishment can be justified despite the fact that existing societies "breed" crimes. Although space does not permit a thorough treatment of Marx's criticisms of abstract political theories, this passage is insightful. The "multifarious social circumstances" pressing upon Smith are those burdens he is expected to bear when he experiences concretely disadvantaging social relations: inferior housing, health care, educational and employment opportunities, decreased security, a thorough rejection of his worth as a person, and the inner rage, frustration, and despair that he feels from the hopelessness of his situation.

Having heard the Marxist's suggestion that Reciprocity Retributivism rests on a problematic description of social relations, we can see how seriously this criticism affects Reciprocity Retributivism. Reciprocity Retributivism justifies punishing wrongs committed by those who suffer grave injustices (concretely unfair relations) by appealing to the obligations they have to maintain the balance of benefits and burdens that arise from cooperation (abstractly fair relations). But the Marxist challenge makes clear that we have reason to feel uneasy about a theory that bases punishment on abstract fair relations and ignores concrete social relations.

V Strategies Open To Reciprocity Retributivists

There are two strategies open to the Reciprocity Retributivist who wishes to accommodate the Marxist's challenge: she can either claim (S1) that crimes committed while subjected to the conditions of concretely unfair social practices are not freely committed actions. They are not, in other words, crimes. And therefore retributive punishment is unwarranted. Or she can claim (S2) that the concretely unfair conditions to which the disadvantaged person is subjected prevent him from fairly benefiting from social rules and, therefore, punishment is unfair. I will argue that both of these responses are inadequate.

Let us look at the first strategy (S1) that claims that the social conditions of poverty prevent persons from freely willing their actions, and, consequently, that their wrongs are not crimes. Their wrongs are committed because they are placed in circumstances such that they ought not be held responsible for their actions. Although it is certainly true that freely willed actions warrant retributive punishment, adherents of this strategy argue that the actions of the poverty stricken are not freely willed and thus do not warrant punishment.

S1 should be rejected by retributivists because it requires the rejection of WW. Retributivists committed to taking moral agency seriously should be unwilling to give up that agency in all but the most extreme situations. Although it is certainly true that drunkenness or hypnosis may render one incapable of freely willed action and thus cause us to consider excusing the crimes committed while a person is so affected, it is not clear that persistent poverty, for example, affects one's moral agency that way. Poverty-stricken people are still capable of moral actions, both praiseworthy and blameworthy. If we are to claim that they cannot commit crimes, then we must, if we are consistent, claim that they cannot be responsible for their heroic or good actions either. Such a move is highly suspect. The price is too high to pay. And it seems right to say that this is disrespectful of the poor person himself.

Another version of S1 (I will call it S1*) redescribes the wrongdoer's psychological states or redescribes the action committed so as to excuse. Feminist-Marxists point out that our unease in punishing women who assault or kill abusive men in the manner we ordinarily punish individuals who commit assault or murder is evidenced by the invention of syndromes ("Battered Wife Syndrome," "Premenstrual Syndrome," and "Learned Helplessness"). If the woman is psychologically debilitated (as the advocates of the syndromes suggest), then retributive punishment is not justified since she did not willfully commit a crime. Other syndromes are "Post Traumatic Stress Disorder" and "Rotten Social Background" used to redescribe crimes committed by blacks or other members of racially oppressed or poverty stricken ghettoized communities. Likewise, if those oppressed by racism or poverty commit wrongs because of their environment, then they are not acting willfully. Or, if it is the case that the wrongdoer acted in self-defense (as those defending women who kill abusive men claim), she ought not be punished because her action is justified and does not merit punishment.(37) Both defenses allow the Reciprocity Retributivist to conclude that punishment is unwarranted because both defenses show that the principle of willful wrongdoing (WW) is not satisfied.

But both sorts of defenses are problematic. Justifying the wrongful act by appealing to self-defense will be possible only in a very few cases, and hardly the sorts of cases with which the Marxist is most concerned. It seems conceivable (though not unproblematic) to claim that a battered wife kills her husband in self-defense when he sleeps. It seems absurd, though, to claim that the man oppressed by racism and poverty abuses his wife in self-defense. The problem with this defense is that the sorts of concrete injustices that the Marxist claims unfairly disadvantage some are not caused by a particular individual against whom the disadvantaged strikes out. Instead they strike out against those nearby, and it would be inappropriate to think of most such acts as self-defense.(38) S1* is, then, no more compelling than S1.

S2 requires us to claim that because the criminal is disadvantaged, she is not a beneficiary of the ostensibly mutually beneficial rules regulating society. Although the disadvantaged person's crime is a violation of those rules, her violation is not an unfair violation of those rules. Her crime does not advantage her with respect to the other members of her society, and, consequently, punishment is unwarranted because no balance of benefits and burdens needs to be restored. Thus, to go back to Smith, S2 would say that although it is certainly a violation of a rule to assault another, it is not an unfair violation of that rule for Smith to assault the bigot. Because Smith has been bearing the unfair burdens of a racist society, the wrongful act does not advantage him with respect to anyone, and thus it does not create an imbalance that needs redressing.

Murphy uses this strategy to defend Reciprocity Retributivism against the Marxist's challenge.(39) He claims that when properly understood, the Marxist's objection is not in fact an objection against this theory of punishment. He writes:

Decent men surely want to object to the wanton handing out of punishments to those who, in a socially uneven community, always get the short end of the stick. But does not Kant's theory explain (or at least give good reason) why we do want to object? Just punishment rests upon reciprocity; and is not one of the most serious moral problems confronting most existing communities the absence of such reciprocity, the absence of balance between benefit and burden? Punishment is unjust in such a setting because it involves pretending (contrary to fact) that the conditions of justified punishment are met. Thus could not Kant, given this theory, easily share the Marxist skepticism about punishing in certain actual states? I believe that he could.(40)

Murphy concludes that since such crimes create no imbalance of benefits and burdens, such crimes require no punitive response.(41) Thus, rather than "wantonly" dealing out punishment in response to any rule violation, we ought instead to acknowledge that many crimes are committed by those whose acts do not create imbalances and that punishing those acts is therefore unjust. In this way, according to Murphy, Reciprocity Retributivism can accommodate the Marxist's criticism.

Murphy's response, though initially appealing, is problematic for two reasons. The first is that it rests on a fundamental misunderstanding of social contractarianism by failing to distinguish between the abstract and concrete levels of fairness discussed earlier. Murphy claims that such crimes fail to create imbalances that warrant redressing. But the assumption underlying Murphy's claim seems to be that the crime fails to create an unjust imbalance because relations between the criminal and the victim are so uneven to begin with. When the poor man steals the hubcaps of the wealthy, has he really advantaged himself relative to his victim? The criminal is, in fact, still worse off relative to the wealthy man, despite his crime. What could punishment possibly achieve except to make the criminal even more badly off? I think this is the appeal of the Robin Hood legend. Who does not want Robin Hood to get the gold from the wealthy and hand it out to the poor? Of course he is committing a crime, but we also know that the wealthy are so comfortable relative to the suffering who receive the ill-gotten booty that it is impossible to take seriously their claim that they are disadvantaged by the crime. Therefore it seems reasonable to accept the claim that Robin Hood's punishment is unjustified. The problem with Murphy's move (of concluding that the socially disadvantaged person's crimes fail to warrant punishment) is that this Robin Hood intuition is not compatible with the fundamental principles of contractarianism, and attempts to adjust a contractarian theory (and, thus, a theory of punishment based on contractarianism) to accommodate this intuition simply cannot work. To claim that being disadvantaged by racism or poverty means that the conditions of just punishment are not met is to conflate abstract fairness with concrete fairness. Because all members of society, including those disadvantaged by poverty or racism, enjoy the minimal benefits secured by the social contract, the punishment of the concretely disadvantaged is not "wanton" -- it is, given the social contractarian analysis of social relations, purposeful. The criminal, even in a "(concretely) socially uneven society," benefits from the abstract fairness secured by these rules -- even if those benefits are minimal -- and thus as long as our theory of punishment is founded on contractarian principles (MB and NE), we are not justified in excusing his crimes by appealing to unfairness.(42) Therefore, either Murphy's intuition that Robin Hood's crimes fail to warrant punishment is an ad hoc proviso, or he has abandoned the social contractarian principles founding his theory of punishment and, in doing so, abandoned Reciprocity Retributivism.

The second reason Murphy's response is problematic is that Robin Hood is not the standard case. Suppose our poor man is not out stealing Rolls-Royce hubcaps, but is instead brutally assaulting his wife. In such a case the victim of the crime knows what it is for the man to receive the short end of the stick, for she receives it regularly herself. And now she is suffering what most poor people consistently suffer: crimes inflicted on them by people who live in their own communities or even their own homes. Although it is true that the criminal is the victim of concretely unfair or unjust social and political policies, this fact is, in a very fundamental way, beside the point. Tolerating or excusing crime by referring to the plight of the criminal is simply to fail to take seriously the wrong he has willfully committed against his victim. Thus, despite our well-meaning intentions, we do not eliminate social injustice by refusing to punish one who has willfully committed a wrong.(43)

Both strategies are unsatisfactory, and thus the only conclusion available to us is that Reciprocity Retributivism cannot sustain commitment to the principles of retributivism and at the same time satisfactorily meet the Marxist's criticism.(44) What I hope to have shown is that Reciprocity Retributivists have not satisfactorily quieted our concerns about retributivism because those concerns cannot be addressed by a theory of punishment grounded on a social contractarian analysis of social relations. Our dissatisfaction with Reciprocity Retributivism in the face of the Marxist's challenge is not evidence that retributivism is unjustifiable, but instead is evidence that the social contractarian political theories out of which Reciprocity Retributivism is developed bring irresolvable problems to retributivism. (Some have misunderstood the implications of this problem. Although we are warranted in rejecting this version of retributivism, we are not warranted in rejecting any of the four basic principles of retributivism.) Retributivists committed to meeting the criticism that retributivism is a cruel theory in an unjust world must look elsewhere for a suitable political foundation for the theory.(45) They must recast retributivism within a non-contractarian political theory, for as long as retributivism is nestled inside social contractarianism, it will not have the machinery to address adequately the phenomena of true social relations in an unjust society.

Concluding Remarks

In closing I want briefly to address Murphy's conclusion that Reciprocity Retributivism is an ideal and, because such criminals are unfairly advantaged, cannot be used to justify punishing criminals as long as our society is less than ideal. I agree with Murphy that Reciprocity Retributivism is an inappropriate theory of punishment for our society, but not for the reasons he gives. I hope to have shown that he is wrong to conclude that Reciprocity Retributivism cannot justify the punishment of concretely disadvantaged criminals; in fact, as long as they are abstractly advantaged (as I think most, if not all, criminals are), according to Reciprocity Retributivism's analysis of fairness, their punishment is not only legitimate but it is also justified. Nevertheless, Murphy is right to conclude that we should be wary of punishing such individuals, and this gives us reason for being wary of Reciprocity Retributivism. We should be wary of any theory that bases its justification of punishment on a reciprocal distribution of abstract fairness when the issue that really concerns us when we consider how to respond to criminals (if we take the Marxist's challenge seriously) is the reciprocal distribution of concrete fairness.

An adequate theory of retributive punishment must do two things. First, it must provide a compelling justification for the punishment of actual crimes, regardless of the social context of the criminal, thereby keeping retributivist convictions intact (WW, PP, IJ, and NP). But at the same time it also must remain sensitive to the force of the Marxist's challenge that society is "uneven" and that social injustices can be magnified by punitive practices. Accordingly, punishment cannot be a mechanism that perpetuates the status quo (and thus be a mechanism that perpetuates injustice); therefore, retributivists should try to design a theory of punishment that offers us a means of identifying criminal wrongs and giving direction to the prospect of ending social and political injustice. Reciprocity retributivism cannot do so.

NOTES

(1) I would like to thank Sharon Lloyd, John Dreher, Kadri Vivhelin, Greg Jarrett, and Jeffrie Murphy for helping me think about these issues.

(2) Jeffrie Murphy takes this criticism head on and gives a qualified defense of what he calls "retributive hatred" in Forgiveness (1988), especially pp. 88-110.

(3) H. L. A. Hart, Punishment And Responsibility, 231-237 (1963).

(4) Acts of negligence raise special problems for this characterization of retribution. Although many (if not most) retributivists would want to punish acts of negligence, the WW principle seems to preclude the punishment of such acts. This issue opens an interesting discussion that is beyond the scope of this paper.

(5) Critics of retributivism question the retributivist's claim that the punishment must "fit the crime" because the criminal herself willed that crime. Contemporary retributivists explain this claim by appealing to notions of reciprocity which will be explained below. A classical retributivist like Hegel, on the other hand, did not appeal to such a notion. Instead, he argued that each crime had a certain qualitative and quantitative feature that could be punished only by a qualitatively and quantitatively similar punishment. Although his argument is interesting, it deserves a separate discussion.

(6) I. Kant, Metaphysical First Principles of the Doctrine of Right, Ak. 332 (M. Gregor trans. 1991).

(7) Id. at Ak. 331.

(8) Although many are uncomfortable with the metaphysical assumptions on which Hegel's theory of punishment relies, I refer to his claims about punishment in this introductory section since he holds a paradigmatic view of retributivism, one which differs importantly from Kant's. G. Hegel, Hegel's Philosophy of Right, [sections] 100 (T. Knox. trans. 1952).

(9) For Hegel, a right is "any existence that is the existence of the free will," so when he says that a criminal has a right to be punished, he is saying that in punishing the criminal we are acting in "the right," her right, that she has established when giving volition to her criminal will, id.

(10) See Hart's essay Postscript: Responsibility and Retribution in Punishment and Responsibility, supra note 3, ch. 11.

(11) I. Kant, Metaphysical Elements of Justice, Ak. 333 (J. Ladd trans. 1965), emphasis mine.

(12) Hegel writes, "Retribution is inflicted on the criminal and so it has the look of an alien destiny, not intrinsically his own. Nevertheless punishment, as we have seen, is only crime made manifest, i.e. is the second half which is necessarily presupposed by the first." G. Hegel, supra note 7, at [sections] 101A.

[13] Jean Hampton's Moral Education Theory of Punishment is, to my mind, just such a version of retributivism; it is an attempt to accommodate the intuition that something good for the criminal (not for society generally, as utilitarians have claimed) ought to come of an act of punishment while holding firm to the standardly retributive ideas that (1) the criminal acted wrongfully voluntarily, (2) the punishment must match the crime, and (3) punishment is in itself just. Although Hampton demands that punishment be intended not merely to inflict injury, but also to educate or morally improve the wrongdoer in some way, her theory of punishment is nonetheless not consequentialist. She claims, for example, that the form of punishment ought not to be lessened if the criminal repents immediately or, on the other hand, to be increased if, after receiving her full sentence she refuses to repent. Her theory makes all the claims made in the crude model of retributivism, and the only additional claim made, that justified punishment ought to be intended to educate or reform the criminal (while important to her theory), is not a foundational claim. It cannot trump any of the more basic retributivistic claims. Thus, though she does not regard her theory as retributive, its basic claims show it to be a version of retributivism. See Hampton, The Moral Education Theory of Punishment, 13 Phil. & Pub. Aff., at 208-38 (1984).

(14) T. Hobbes, Leviathan, ch. 21 (1985).

(15) Locke, Second Treatise, ch. II [sections] 4 in Two Treatises of Government (1988).

(16) Rawls, like Locke, has a normative concept of equality. We are to suppose that the parties in the original position are equals "to represent equality between human beings as moral persons, as creatures having a conception of their good and capable of a sense of justice." See J. Pawls, A Theory of Justice, 19 (1971).

(17) See T. Hobbes, supra note 13.

(18) See J. Lock, supra note 15, at ch. VIII [sections] 97.

(19) Hobbes claims that the benefits of the commonwealth are peace and security, protection of one's person and property, and freedom from the interference of others. He writes: "The finall Cause, End, or Designe of men, (who naturally love Liberty, and Dominion over others,) in the introduction of that restraint upon themselves, (in which we see them live in Common-wealths,) is the forsight of their own preservation, and of a more contented life thereby; that is to say, of getting themselves out from that miserable condition of Warre . . ." See T. Hobbes, supra note 13, at ch. 17. Locke, too, claims that one of the benefits of the civil state is security. He writes: "But though Men when they enter into Society, give up the Equality, Liberty, and Executive Power they had in the State of nature, into the hands of the Society, to be so far disposed of by the Legislative, as the good of the Society shall require; yet it being only with an intention in every one the better to preserve himself his Liberty and Property." See J. Locke, supra note 15 at chs. II & (especially) IX.

(20) This point can be made using Hobbes's non-normative sense of equality. Were some essentially smarter or stronger than others (and were it not the case that "when all was reckoned together" all are equals), then Hobbes could not argue that all are constrained by reason to form and abide by a social compact, for those who are essentially superior would have little to gain in obedience and much to lose. It is only by virtue of our being equals that forming and maintaining a social contract is rational. He writes: "The question who is the better man, has no place in the condition of meer Nature; where, (as has been shewn before,) all men are equall .... If Nature therefore have made men equall, that equalitie is to be acknowledged: or if Nature have made men unequall; yet because men that think themselves equall, will not enter into conditions of Peace, but upon Equall termes, such equalitie must be admitted. And therefore for the ninth law of Nature, I put this, That every man acknowledge other for his Equall by Nature. The breach of this Precept is Pride." See T. Hobbes, supra note 14, at ch. 15.

(21) This theory maintains commitment to WW; thus unintentional harms are not crimes.

(22) It is widely claimed that a prominent example of a retributivist theory making use of the social contract tradition is Kant's theory of punishment. However, Kant does not develop his discussions of punishment in great detail. A fuller account of a Kantian version of retributivism relying on a notion of reciprocity to justify punishment is developed by J. Murphy. See Retribution, Justice and Therapy (1979). Murphy has since concluded that Kant does not have what we would want to call a theory of punishment, and, in fact, he claims that there is enough textual evidence to cast serious doubt on the claim that Kant's comments on punishment are consistently retributivistic. Kant is nonetheless regarded by many contemporary thinkers as holding that retributivism is founded in a notion of reciprocity. Whatever Kant's real views on punishment were, this theory of Reciprocity Retributivism now has a life of its own independent of his political writings. See Murphy's Does Kant Have a Theory of Punishment?, 87 Colum. L. Rev. 509-32 (1987).

(23) Morris, Persons and Punishment, Guilt and Innocence 34 (1976).

(24) Id. at 36.

(25) One objection to Morris's theory is that his claim that all are equally burdened (and benefited) by the legal system is problematic. If a law does not create a sphere of non-interference for all, then those without that sphere cannot be said to have unfairly benefited from that sphere of protection if they violate it. Thus it seems to follow that punishing them for breaking that law is unjust. Richard Burgh develops this point in his Do the Guilty Deserve Punishment?, 79 J. Phil., at 193-210 (1982). I think that Morris can answer this objection. Rather than claim that each particular law protects each particular person equally, Morris need only claim that the system as a whole protects each person equally. Richard Dagger develops this line of response in Playing Fair with Punishment 103 Ethics, , at 473-88 (1993).

(26) J. Murphy, supra note 22, at 100.

(27) Id.

(28) Murphy claims that fairness is only a "formal principle" and is not intended to explain the proportionality of punishments. See Burgh's Do the Guilty Deserve Punishment? supra note 25, for a more detailed critical analysis of the details of both Murphy's and Morris's theories of Reciprocity Retributivism.

(29) See J. Murphy supra note 22 at 79.

(30) Dagger offers another version of Reciprocity Retributivism. He argues that individuals in a society are "equal and alike as subjects of the law.... It [the crime] must be condemned in order to maintain equality in the eyes of the law. The balance to be restored, then, is the balance between people qua equal subjects of the law. Punishing those who upset this equality is the closest we can come to restoring the balance in this sense." In this version, too, punishment is both necessary and justified as it is only retributive punishment that ensures we remain equals before the law. See Dagger, supra note 25.

(31) Murphy addresses internal criticisms in his Three Mistakes about Retributivism, supra note 22, at 77-81. John Finnis attempts to clarify the Proportionality Principle in his The Restoration of Retributivism, 32 Analysis, at 131-35 (1972). Richard Dagger also defends Reciprocity Retributivism against internal criticisms in his Playing Fair with Punishment, supra note 25.

(32) R. A. Duff offers serious criticism of the notion of treating punishment as a balancing of benefits and burdens. See Trials & Punishment, ch. 8 (1986).

(33) Philosophers have argued that social contractarian systems can exploit, oppress, and/or alienate whole classes of individuals. Because oppression, exploitation, and alienation are philosophically "loaded" words that require commitment to assumptions that are not necessary for this paper, I will use a neutral term and refer to such systems as "disadvantaging."

(34) It may seem that this objection against Reciprocity Retributivism can be made profitably only against a Hobbesian or Lockean social contract theory, but not against a Rawlsian one. However, I think that even the Difference Principle may allow for disparities of wealth that permit severe economic disadvantages (though, admittedly, the two principles of justice ought to rule out disadvantages resulting from racist or sexist practices). The Difference Principle requires that "social and economic inequalities are to be arranged so that they are both (a) to the greatest benefit of the least advantaged and (b) attached to offices and positions to all under conditions of fair equality and opportunity." The Difference Principle requires that the distribution of resources chosen be to the greatest advantage of the least well off given possible distribution options available. As long as there is a scarcity of goods, the least well off may still be poor relative to others in society. As long as his share in the goods is greater than that of the least well off in any other distribution possible, the least well off receives his fair share of the resources and his fair share of the benefits of social cooperation. See J. Rawls, supra note 15, at 83.

(35) Even if the crime remains unpunished, and the balance of benefits and burdens remains "out of balance," we are still obligated to continue to bear the burdens of compliance. Though both Hobbes and Locke claim that the contract can be nullified, these conditions are extreme, and they are not, I believe, the conditions faced by the person who is frequently victimized.

(36) Marx, Capital Punishment, New York Daily Tribune (Feb. 18, 1853). Murphy refers to this criticism of Reciprocity Retributivism as "the gap between theory and practice." See supra note 22, at 77-81.

(37) Stephen Schulhofer explores the plausibility of such a defense in The Gender Question in Criminal Law, 7 Soc. Phil. & Pol'y, at 105-37 (1990). He argues that it is ad hoc to claim that a wrongdoer acted because she has Battered Wife Syndrome, say, when the only evidence of her suffering from this syndrome is that she committed this wrongful act. Given the lack of non-criminal indicators for these syndromes, he concludes that it seems prudent to be wary of them. In contrast, some Feminist-Marxists claim that the "syndrome" defense is a feeble (and uncompelling) attempt to address the symptoms while wholly ignoring the real problem, the unjust and sexist distributions of power in society. See Feminist Legal Theory Foundation (D. Kelly Weisberg ed. 1993), in particular, MacKinnon Feminism, Marxism, Method and the State: An Agenda for Theory, at 437-53.

(38) Richard Delgado remarks on this problem with using self-defense to justify crimes committed by those who suffer from poverty and racism. See his `Rotten Social Background': Should the Criminal Law recognize a Defense of Severe Environmental Deprivation? from 2 Law & Inequality, at 9-90 (1985).

(39) Murphy quotes Marx's criticism of retributive punishment and addresses it directly. (In fact, he claims that one could view his entire article as an elaborate commentary on Marx's passage.) See Marxism and Retribution in Retribution, Justice and Therapy, supra note 22.

(40) See his Three Mistakes about Retributivism, supra note 22, at 80.

(41) Id. at 77-81.

(42) It is easy to see why a Hobbesian or Lockean social contract would generate this problem for retributivism, and one may think that Rawls's Theory of Justice social contract avoids these difficulties. (I suspect Murphy thinks it does.) But Rawls's theory is criticized by feminists who worry that his refusal to have the two principles of justice regulate the private sphere, the division of labor within a family, for example, is evidence that his theory will perpetuate sexism since women who are raised in severely sexist homes will be disadvantaged in the public sphere. Therefore, though a Rawlsian well-ordered society will ensure that all citizens receive the benefits and burdens of fair public political institutions, it will nonetheless tolerate the alienation or oppression of women within the home, and consequently the justification of their punishment by reference to fairness is problematic. See S. Okin, Justice, Gender, and the Family (1989). But, defending Rawls, see Lloyd, Family Justice and Social Justice, 75 Pacific Phil. Q., at 353-372 (1994).

(43) Finally, I think the social contractarian would have a response to this example. Although it is true that our poor man is not gaining relative to any rich person when he assaults his wife, he is gaining relative to his victim -- and thus he is benefiting from his crime. He enjoys the minimal benefits of security, and she does not; thus his punishment is warranted -- though he experiences concrete disadvantages relative to others in his society.

(44) Of course, the Reciprocity Retributivist could bite the bullet and reject the Marxist's suggestion that retributivism is insensitive to "real" social relations, but that move would hardly endear the theory to those whose worries that retributivism failed to offer sufficient justification for the infliction of harm spurred the retributivists to seek theoretical support from social contractarianism in the first place.

(45) Finally, I feel I should mention that the classic social contractarian political theories do not have retributive theories of punishment. (By itself, this fact is hardly decisive, but it does serve to increase my suspicion that the social contractarian and retributivism alliance is ill-fated.) The Reciprocity Retributivist is borrowing ideas that are within the social contractarian tradition, but those ideas do not commit the social contractarian to retributivism. Although Locke insists that we have a natural right (and, it seems, obligation) to punish those who harm us, he claims that the purpose of punishment is to deter persons from committing harms. He writes, "Each Transgression may be punished to that degree, and with so much Severity as will suffice to make it an ill bargain to the Offender, give him cause to repent, and terrifie others from doing the like." Supra note 15, at ch. 2 [sections] 12. Thus, Locke does not claim, as the retributivist does, that a crime warrants a proportionate act of punishment. Rather, according to Locke, the appropriate act of punishment is that one which will bring about certain specified ends: ensuring that the criminal does not profit from his act, giving the criminal cause to repent, and terrifying others. Likewise, Hobbes, who clearly has a social contractarian theory, defines punishment as a consequentialist (not retributivist) act. He writes, "A Punishment is an Evill inflicted by publique Authority, on him that hath done, or omitted that which is Judged by the same Authority to be a Transgression of the Law; to the end that the will of men may thereby the better be disposed to obedience." Supra note 14, at ch. 28.
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Title Annotation:punishment and social contract theory
Author:Anderson, Jami L.
Publication:Criminal Justice Ethics
Date:Jan 1, 1997
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