Monday, November 21, 2011

Retributivism and the Similarity Requirement

Is there anything in Feinberg's definition of retributivism that requires, or even recommends any kind of similarity between the crime and the punishment? No.


Discipline: Philosophy
Theory of punishment whereby all or part of the purpose of punishment is the infliction of pain or disadvantage on an offender which is in some sense commensurate with his offence and which is inflicted independently of reform or deterrence.

For a weak theory the commensurate amount need not be inflicted but may be, and a limit is placed up to which reformative or deterrent punishment may go but beyond which it may not.
A strong theory insists that the punishment must be inflicted, but again places a limit beyond which it may not go.

Retributivism opposes excessive harshness as much as excessive leniency, and opposes the violation of the offender's rights in the interests of social expediency or personal spite and so on.
Mitigating circumstances, diminished responsibility, and so on are taken into account before determining the commensurate amount, but there are still problems in determining this, and the strong retributivist, especially, must justify violating the presumed moral ban on inflicting unnecessary pain.

J Feinberg, 'The Expressive Function of Punishment', Doing and Deserving (1970)

1 comment:

Steve Lovell said...

I'd be interested in hearing people's thoughts on my long held view that the institution of punishment is justified in a forwards looking fashion by it's reformative and deterrant effects, but that the individual punishments are justified in a backwards looking fashion based on desert along retributivist lines.

I've never seen anyone say this ... not that I've ever done a great deal of reading in the area.