A DEFENSE OF RETRIBUTIVISM IN JURISPRUDENCE THEORY

Eric Rukamp
PHI 317: Philosophy of Law
May 17, 2017
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Over the course of the final weeks of the semester, we have thoroughly researched the

topic of punishment of crime. As is the norm with anything in the spectrum of philosophy, there

are varying approaches to the usefulness and purpose of punishment. All three theories approach

this by looking under three lenses, constructed by theorist H.L.A Hart: what is the purpose, who

may do the punishing, and how severely should the punishment be? When it comes to answering

these three questions, Immanuel Kant’s theory of retributivism stands above the theories of

consequentialism and therapeutic-based punishment. This essay will outline this opinion by

putting the theory through Hart’s questions, in addition to comparing the responses of

consequentialist and therapeutic models to those same questions.

To begin, let’s delve into how Kant’s theory answers H.L.A. Hart’s first question – what

is the purpose of punishment? Under Kant, punishment is handed down out of sake of duty. That

is, Kant believed in an ethical system based on duty. We do good out of duty, not out of other

motivation. Just as it is our duty to do good, it is equally our duty to accept punishment for evils

we do. Thus, punishment fulfills the duty we have to accept society’s response to our evils. In

essence, it is a very Christian approach. This is the heart of the argument that consequentialism

and therapeutic models miss. Under these models, punishment’s purpose isn’t dutiful acceptance

of responsibility, but rather about treating criminal activity as a curable disease. Punishment,

rather than fulfilling a duty, is meant to be used as a tool to possibly achieve a good outcome – it

has nothing to do with genuinely punishing the crime, only what can possibly be achieved. It

incorrectly denotes crime a mere happening that can be rehabilitated, rather than understanding
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the free choice that goes into committing a crime. Because we hold free will, and are able to

freely choose our actions, we are bound by reason to accept responsibility for criminal choices .

Treating crime as a disease undermines not only free choice, but our very responsibility to accept

the consequences of our actions. Isn’t that a bit of an ironic twist, that consequentialism

undermines our responsibility to accept the consequences of our actions?

Hart’s next question of punishment goes as follows: who may be punished? Kant

approaches the question while living under Frederick the Great of Prussia. Given that Prussian

society was strictly totalitarian under the enlightened despotism of the king, it makes sense that

Kant would answer thusly: all may be punished except the head of state. Why does he say this?

He argues that the role of the head of state is to administer, adjudicate, and punish. If their role is

to punish, they themselves cannot be punished. That doesn’t mean that they are totally immune,

however. Given that the state gives its head supremacy to rule, it can remove that supremacy in

turn. Rather than be subject to penal punishment [like the French monarchy during Kant’s life],

the head of state is effectively impeached. While this seems moot, it effectively enforces an idea

of equal treatment – the head isn’t immune, just as the people are not immune. In researching the

consequentialist approach to this question, they seem to take a fairly similar approach. Given that

punishment is a consequence of the illness of crime, anyone may have this disease and can be

cured of it through rehabilitation. Therein, we see a same degree of equality in treatment which

can apply to anyone, head of state or not.

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This brings us to Hart’s final question: how severely should crime be punished? This is

the defining element for my support of retributivism. Kant continues his previous discussion of

equal treatment through to now. He outlines a term he calls lex talionis – the Law of Equality.

He argues that severity of punishment must be proportional – that is, equal – to the crime

committed. Thusly, Kant does not punish a pickpocket the same as a murderer, but he carries out

proportional punishment on both [out of duty]. Consequentialist approaches differ greatly in that

they approach it from a different thought. Rather than look at proportionality, consequentialism

looks at it from a utilitarian point. That is, what punishment can yield the best results, rather than

what actually fits the crime. While good in intention, this puts the focus only on possibly good

outcomes, rather than putting greater focus on meeting evil with proportional punishment.

This highlights some of the major consequentialist criticism we have discussed.

Primarily, it bets all its chips on hoping the future outcome of the punishment, even though men

cannot so surely predict the future. This also puts far too much faith in men to follow through on

their actions. Part of rehabilitation in other fields requires a form of agreement for the person

going through the process. That is, they agree to follow a plan of action when they no longer

answer to an authority. However, as we have proved throughout history, the word of men isn’t as

credible as consequentialists want to believe. Whether you approach the reason for this as

religious or not, the point remains that our word isn’t always trustworthy. Now, you may argue

that while our word isn’t always trustworthy, it is trustworthy often enough to warrant attempts

at rehabilitation. However, I would contend that putting the punishment in the hands of the
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criminal undermines not only the authority of the state [to punish], but gives the criminal the

greater chance to commit the crime again.

This is why retributivism has made far more sense to me. We are human beings with the

gift of free will and reason. When we become a community, we use reason to dictate what we as

a community believe is good and evil. Through freely reasoning, we then present ourselves with

the option to follow the good, or follow the evil. Nowhere does that sound like a “curable

disease.” That is a free choice. In making our choice, we inherently agree to accept the

consequences of those actions. If we do evil, it is our duty to not only acknowledge the crime,

but to accept the punishment when it is proportionate to the crime. When it isn’t proportionate,

we have rule of law that illustrates the process to argue it in court. Nowhere herein do I discuss

the “greatest good” because I feel that the utilitarian argument is completely beside the point.

When it comes to punishment, there is no reason to look beyond the “now” and try to guess what

punishment will yield the best results. We have law that outlines what we as a society agree is a

crime, and what punishment fits that crime. You break the law, you take the punishment.

At the end of it all, punishment in jurisprudence isn’t clearly won by any side. It remains

a debate even today, all the way up to the Supreme Court. Justices don’t come to unanimous

decisions as often as people believe they should. We have researched several court cases in

learning about all these different jurisprudential theories, and most often we see clearly divided

camps in these cases. Retributivism and consequentialism are only two answers to the question
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of punishment. In terms of personal believe, I feel that Kant has made the stronger argument: one

based on reason, basic understanding of choice, duty, and proportion. “Here and now” is what

matters in punishment.