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Retributive justice is roughly the view that people should be rewarded or punished for each of their actions. In other words, some intrinsically significant moral good is said to come about when an evil person receives a punishment proportional to their evil actions—as with reward and people who perform good actions. Retributive justice, it seems, is widely embraced—both by people on the basis of their basic moral intuitions, and by institutions and governments.

Obviously, retributive justice isn't embraced by everyone. Consequentialists, for example, have to reject it, since it conflicts with the "bring about the best consequences" principle. Of course, this isn't really an argument against retributive justice directly; rather, it merely shows that retribution is incompatible with consequentialism—so if one accepts the latter, one ought to reject the former.

But have any consequentialists directly argued against retributive justice? Have any claimed that, as a matter of fact, retribution is actually morally indefensible?

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  • Why would consequentialists have to reject it? Any consequentialists who considered that it brought about the best consequences would have to accept it.
    – Mary
    Jan 10 at 20:21
  • Perhaps I should have used utilitarianism to make my question clearer. So, to answer your question (with this clarification), even if adopting retributive justice as a general rule were to promote utility, the utilitarian clearly does not accept the view and they are only using instrumentally.
    – natojato
    Jan 10 at 20:40
  • Retributive justice does not require reward or punishment for each action, that is simply impractical to a point of silly. And reasonable versions of retributivism (e.g. for serious crimes) are perfectly compatible with consequentialism, maybe even essential given human psychology of deterrence. But the linked SEP article discusses many challenges even to the reasonble forms of retributivism.
    – Conifold
    Jan 11 at 7:56
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While justice as retribution seems to come quite naturally to most people, I would say it is actually uncommon in philosophical and social theories, where Justice and punishment is more frequently viewed as rehabilitative and an institutional prevention against spirals of clan revenge.

For example, the American "penitentiary" system reported on by Tocqueville was a Protestant and Enlightenment institution aiming presumably at inward "repentance," in the spirit of the Gospels. Similarly, Bentham's panopticon system sought practical reform for a better social outcome. Most modern liberal and socialist states would describe the aims their criminal justice systems as behavioral and redemptive rather than vengeful.

The concept of punishment as being to the ultimate benefit of the offender can be found in Plato's Gorgias, and the idea of Justice as the termination of retributive spirals is implied in the ending of the Aeschylus's Oresteia. Most thinkers in the Christian tradition, which is to say nearly all Western philosophers from Augustine to Hegel, would not regard Justice as a matter of retribution, a reciprocal eye for an eye.

Apart from Bentham, I'm afraid I'm not really answering your question about citing direct arguments, because I don't think of any off the top of my head. I'm sure others will. But I would say philosophy is far more often opposed to retributive justice, which reveals a sizable and perhaps psychologically blinkered separation between theory and practice.

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    Interesting stuff. Thanks for the answer. One issue: I don't see how you can possibly claim that the Christian tradition does not "regard justice as a matter of retribution" given that the entire idea of afterlife punishment and reward seems to rest on it. Right?
    – natojato
    Jan 11 at 1:41
  • @natojato. That would be true if you want to include the afterlife, which may indicate how deeply the reciprocity instinct is embedded. Yet I believe we are talking about civil justice here. And the extension of identity beyond civil society and into the afterlife is one reason civil law can seek repentance and leave "punishment" to an omniscient God. Some of the worst bodily punishments were intended precisely to guide the soul in the hopes of everlasting salvation. Jan 11 at 14:42
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Spinoza rejected flat out the concept of good and evil, and the idea of free will. I don't think he directly addressed the question of the justice system, but clearly retribution is pointless in his philosophy. Any philosopher who does not believe in free will or good and evil (Nietzsche comes to mind) would probably hold similar conclusions.

Although not a philosopher, but definitely a thinker, Cesare Beccaria was one of the first to argue against the punitive justice of the pre-enlightenment era and its replacement with a preventive and rehabilitative approach. He is still very influential on the western justice system.

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Yes, Protagoras, Plato, Becccaria, Bentham, and Sidgwick.

Fixing ideas

It might be handy to fix ideas about just what we're talking about - to make sure we are talking about the same thing. On H.L.A. Hart's account, a retributive theory of punishment - which in context you means by 'justice' as your text box makes clear - has at least three components:

R1: A person may be punished if and only if he has voluntarily done something wrong.

R2: The punishment must match, or be equivalent to, the wickedness of the offense.

R3: The justification for punishing persons is that the return of suffering for moral evil voluntarily done is itself just or morally good (Hart: 231).

Beccaria and Bentham

The first intellectual assaults on the retributive theory of punishment in modern times are those of Cesare Beccaria and Jeremy Bentham:

Beccaria, much like Bentham after him, seeks to eliminate the vengeful, retributive element in public punishment and to replace it with a milder, non-vindictive deterrent justification (Vick: 39).

On Beccaria, see Crimes and Punishents (1764) and on Bentham, The Rationale of Punishment (written 1774-6). Details about Bentham are already given in another answer.

Sidgwick

Closer to the twentieth century, in the Anglo-American tradition of theorising about punishment, the earliest firm rejection by a major philosopher of the retributive theory, so far as I know, is Henry Sidwick's in The Methods of Ethics (1874/ 1907). From the 1907 edition:

History shows us a time in which it was thought not only as natural but as clearly right and incumbent on a man to requite injuries [Hart's 'suffering': GT] as to repay benefits; but as moral reflection developed in Europe, this notion was repudiated, so that Plato taught that it could never be right really to harm anyone, however he may have harmed us. But in its universal form the old conviction still lingers in the popular view of Criminal Justice. It is still widely held that justice requires pain to be inflicted on a man who has done wrong, even if no benefit result either to himself or to others from the pain. Personally, I am so far from holding this view that I have a strqng instinctive aversion from it: and I hesitate to attribute it to Common Sense, since I think it is gradually passing away from the moral consciousness of educated persons in most advanced communities' (Sidgwick: III.5.5: 281).

Plato

Prima facie it would appear from Sidgwick's statement that Plato rejected a retributive theory of punishment insofar as he forbears from inflicting harm and it is a reasonable reading of the retributive theory of punishment that it does involve the intentional infliction of harm.

Let's delve a little deeper. In Plato's Protagoras, Protagoras states the view:

In punishing wrongdoers, no one concentrates on the fact that a man has done wrong in the past, or punishes him on that account, unless taking blind vengeance like a beast. No, punishment is not inflicted by a rational man for the sake of the crime that has been committed (after all one cannot undo what is past), but for the sake of the future, to prevent either the same man or, by the spectacle of his punishment, someone else from doing wrong again. But to hold such a view amounts to holding that virtue can be instilled by education; at all events the punishment is inflicted as a deterrent.

If 'blind vengeance' is retribution, here the retributive theory of punishment is clearly rejected. But is the view Protagoras'? Scholars disagree (Stalley: 2-3).

What is reasonably clear is that Plato really did hold the view attributed to him by Sidgwick, namely that punishment must never harm but should only be employed for the good of the person punished:

There are ... scattered remarks about punishment in the Republic [380a-b, 409e-410a, 445a, 591a-b] as well as a comprehensive and complex account in the Laws [731b-d, 735e, 843d, 854a, 862b-863a 933e, 941d, 957e]. Common to all these accounts is an insistence that punishment should aim primarily at the good of those on whom it is inflicted, though it may also serve as a deterrent to others (Stalley: 14).

There is no thought here that the return of suffering for moral evil voluntarily done is itself just or morally good. There is by the strongest implication a rejection of the very idea, with which the quote from the 'Protagoras' makes clear that he was acquainted. Among the Greeks I am unable to recall any prefiguring of this view of Plato's, so Plato can perhaps stand as a philosopher, and in the Western tradition possibly the first, to challenge the theory of retributive punishment - or retributive justice as you also call it.

References

H.L.A. Hart, Punishment and Responsibility, New York: Oxford University Press, 1968.

H. Sidgwick, The Methods of Ethics, Indianapolis: Hackett, 1981.

R. F. Stalley, 'Punishment in Plato's "Protagoras", Phronesis , 1995, Vol. 40, No. 1 1995, pp. 1-19.

J. Vick, '"Putting Cruelty First": Liberal Penal Reform and the Rise of the Carceral State', Social Justice , 2015, Vol. 42, No. 1 (139) (2015), pp. 35-52.

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Some material here perhaps : Truth v. Justice: The Morality of Truth Commissions

The authors weigh the virtues and failings of truth commissions, especially the South African Truth and Reconciliation Commission, in their attempt to provide restorative rather than retributive justice. ...

Ultimately ..., they find the truth commission to be a worthy if imperfect instrument for societies seeking to say “never again” with confidence. At a time when truth commissions have been proposed for Bosnia, Kosovo, Cyprus, East Timor, Cambodia, Nigeria, Palestine, and elsewhere, the authors’ conclusion that restorative justice provides positive gains could not be more important.

Afterthought

There is also a form of justice, which I heard about once, which is just concerned with the discovery of the truth, and not concerned with remedies -- perhaps because the remedies are immaterial in certain cases. Just the establishment of the truth with skill and intelligence is the doing of justice to the matter.

A form of justice required for the avoidance of repetition of events, (not for remedies).

However, I was unable to find any more about this. Perhaps some reader might know.

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