Strafe als Vergeltung: Plädoyer für einen hermeneutischen Retributivismus

Retributivism is usually taken to be a theory of the justification of punishment. In this contribution, I develop an alternative understanding of retributivism. Rather than as a theory of the justification of punishment, I propose to regard it as a hermeneutic theory, i.e.a theory about how we understand (some) punishments. I start with an explanation of what "hermeneutical retributivism" is (1). In what follows, I examine the ramifications of this view (2). It leads to a different assessment of the relation between retributive theories and prevention theories (2.1) and of the relation between punishments and non-punitive mea- sures such as preventive custody (2.2). It also leads to a reconceptualisation of the problem of the justification of punishments (2.3). Some concluding remarks summarize the arguments in favor of hermeneutical retributivism (3).

Bentham: Punishment and the Utilitarian Use of Persons as Means

One of the main barriers against a Utilitarian justification of punishment is a widespread criticism that if punishment is evil justified by the good it can achieve, then the state could use persons as a means to an end in pursuing this good. This opens the door, at a theoretical level, for the potential punishment of innocents, disproportionate punishment and failure to respect persons as rational and responsible agents. Further, critics argue that any considerations of security or utility guard against the perceived risks contingently, without intrinsic commitment to respecting persons as ends in themselves. This article addresses the criticism fundamentally by returning to Bentham’s original writings and demonstrating that a principle of equality is embedded in the greatest happiness as an end of government. The principle of equality can theoretically be developed using the tools of Bentham’s political theory, including his commitments to democracy, to the elimination of pain and to the differentiation between real and fictitious entities, to ensure that a Utilitarian theory of punishment, as part of its premise, would be constrained from using persons as mere means. Further, building on the equality of happiness, the article proposes an individualistic justification of punishment that responds to the traditional accusations of innocents’ punishment and excessive punishment, and ensures the respect of persons as rational and responsible agents.

Blame, Punishment, and Predominant Retributivism

Blame is a directed attitude that involves a core aversive reaction based on a belief that the target is blameworthy but gives rise to a syndrome of familiar expressive and communicative functions. Punishment involves blame and sanctions. Retributivist essentials are explained and defended, and it is argued that retributivism must be part of the truth about the justification of punishment. Predominant retributivism should be preferred to pure retributivism.

Responsibility – an Anthropological Outline

In the article, I try to present an outline of the theory of responsibility. Its double root – based on the logical distinction between criterion and testimony – is derived from Abelard’s anthropology of action and the theory of personhood developed by Timothy Chappell. Initially, I discuss the metaphysical difficulties related to the problem of freedom (especially linked with determinism). Afterwards, following Abelard, I try to indicate an anthropological justification of punishment based on guilt. The last part of the paper is devoted to the attempt to enter the free will into a broader view of Chappell’s theory. The aim of the work is to prepare the ground for future studies on the proleptic notion of personhood and its further application within the philosophy of law.

Philosophies of Punishment

Numerous philosophical theories purport to justify a system of legal punishment. It is doubtful, however, that any of them successfully answer these three questions: Why punish? Whom to punish? How much to punish? Straightforward retributive theories, which justify punishment by looking back at the wrongful harm done by an offender, don’t adequately answer the question of why the offender should be harmed in return for harm done. More sophisticated retributive theories construe punishment as equalizing an unfair advantage taken by an offender. Such theories have difficulty with the question of how much to punish. Consent theories view offenders as willing punishment onto themselves by their voluntary acts. The various versions of this theory all fail to answer one or more of the three questions: why, whom, and how much. Rights forfeiture theories give a question-begging answer to the “why” question and don’t answer the question of how much. Consequentialist theories, which justify punishment by looking forward to results such as deterrence and incapacitation, have difficulties with whom to punish and how much. Arguably, punishing an innocent person who is believed to be guilty could deter potential offenders, and a serious offense might be deterred by a less severe punishment than a minor offense. Some philosophers see insurmountable problems for strictly backward-looking theories that appeal to guilt of the offender and for strictly forward-looking theories that appeal to future consequences. The solution, then, could be a theory that appeals to future results to provide a reason for punishing, but looks back at harm done by the offender to answer the question of whom to punish and how much. However, without a unifying rationale for taking these different approaches to these particular issues, such a mixed theory would be ad hoc if not incoherent. In recent decades, philosophers have offered several approaches that might avoid the pitfalls described above by providing a unified rationale for punishment that is both backward and forward looking. Self-defense theories hold that it is rational and justifiable for the state to threaten punishment in order to defend citizens against offenses. They then move by various strategies from the justifiability of the threat to the justifiability of punishment. Forced choice theories justify punishment as a way of distributing necessary harm to the guilty rather than the innocent. Censure theories attempt to justify punishment as the state’s means of expressing disapproval of offenses against the law. Each of these theories faces difficulties, but proponents might judge that even though they haven’t yet been able to adequately state the justification of punishment, their theory is on the right track. Others view the difficulties faced by all theories and boldly conclude that punishment is not justifiable. There is little support for rehabilitation as an alternative to punishment. The practices associated with restorative justice, although not directly aimed at punishment, typically involve punishment, so they still require a justification for punishment. Whether a system of restitution could take the place of a system of punishment is problematic. The situation is made even more troublesome by the fact that the theories that have been surveyed aim to justify punishment in a society with a just political structure and laws. Even if such a theory succeeds, it is far from clear that it would justify punishment in a society where many of those who are harmed by punishment have also been victims of injustice.

The Place of Proportionality in Penal Theory

The idea that the severity of punishments ought to be proportionate to the seriousness of crimes is an established and central feature of much of the literature on the justification of punishment of the last several decades. Yet in practice, sentencing is an inexact science, and the project of developing metrics of both penal severity and crime seriousness is burdened by substantial theoretical difficulties. The focus on an individualistic, moralized account of criminal law exacerbates these issues both by making proportionality more central than it needs to be in penal theory and by making the metrics harder to determine. An alternative account can be premised on a view of criminal law and punishment as an institution of public policy addressed to the need to sustain the fragile achievement of the modern liberal democratic state. The questions of metrics and of proportionality appear somewhat differently in such a political theory and in ways that allow us to overcome some of the difficulties that afflict current theorizing about punishment.

3. Crime and punishment

This chapter focuses on crime and punishment. Punishment involves the imposition of hardship or suffering on a supposed offender for a supposed crime, by a person or body who claims the authority to do so. Criminal punishment is problematic in at least three respects: it harms those who are punished; it also harms, indirectly, their families and friends; and it imposes significant costs on the rest of the political community. There are two strategies for the justification of punishment: instrumental and non-instrumental justifications. The instrumental strategy has been traditionally pursued by endorsing some version of consequentialism, the moral theory according to which the rightness or wrongness of a given conduct, practice, or rule depends only on its consequences. Non-instrumental justifications, on the other hand, have been traditionally defended by retributivist theories, according to which, wrongdoers deserve to suffer in proportion to the gravity of the wrong they have committed.

PRIMA FACIE RETRIBUTIVISM: ON THE OBLIGATION TO ADMINISTER JUSTICE

The justification of punishment is a difficult problem. The paper attempts to examine retributivism in the normative perspective and to penetrate the structure of the fundamental premises and theses of retributivism. Retributivism assumes that punishment is just, in the broad understanding of the term, while in reality punishment is not just; the model of retributive punishment is contrafactual, which is evident above all in the problem of punishing the innocent. A proper modification of retributivism's normative premises (i.e. how and why people ought to be punished, etc.) consists in seeing these premises not as unconditionally binding directives but as optimization rules, a kind of prima facie duty. These are mainly the ethical duties of the state considered from the point of view of criminal policy. In effect, it is possible to formulate a non-fundamentalist (non-idealistic) variant of retributivism - better corresponding to social reality. The core of the paper consists in outlining such a concept. The paper has been primarily inspired by the ideas of W.D. Ross and R. Alexy.

Justice

The idea of justice lies at the heart of moral and political philosophy. It is a necessary virtue of individuals in their interactions with others, and the principal virtue of social institutions, although not the only one. Just as an individual can display qualities such as integrity, charity and loyalty, so a society can also be more or less economically prosperous, artistically cultivated, and so on. Traditionally defined by the Latin tag ‘suum cuique tribuere’ – to allocate to each his own – justice has always been closely connected to the ideas of desert and equality. Rewards and punishments are justly distributed if they go to those who deserve them. But in the absence of different desert claims, justice demands equal treatment. A common division of the topic distinguishes between corrective and distributive justice. Corrective justice covers that which is due to a person as punishment, distributive that which is due by way of benefits and burdens other than punishments. Within the sphere of corrective justice there is disagreement about the justification of punishment itself. But there has been – and is – widespread agreement on the criteria for just punishment: just punishments must be properly imposed and the quantum of punishment must reflect the seriousness of the offence. There has been no such agreement about the content of just principles for the distribution of benefits and (non-punitive) burdens. Conventionalists claim that what is due to each person is given by the laws, customs and shared understandings of the community of which the person is a member. Teleologists believe that an account can be given of the good for human beings and that justice is the ordering principle through which a society (or humanity) pursues that good. Justice as mutual advantage proposes that the rules of justice can be derived from the rational agreement of each agent to cooperate with others to further their own self-interest. Theorists of what may be called justice as fairness believe that justice is a thin concept which provides a fair framework within which each person is enabled to pursue their own good.