What are some justifications for the punishment

Justification of the Punishment: A Mixed Theory

II. Retributivist Theories

Retributivist approaches are deontological theories of justifying punishment. As such, they investigate the act of punishment. As we have seen, there are two ethical issues that challenge permission to punish. First, punishment is the deliberate infliction of suffering. Secondly, depending on the punishment, various rights of the person are violated (including rights of freedom, the right to physical and mental integrity). Assuming that this is basically possible to justify, the question arises under which circumstances the act of punishment is permitted or required. However, the consequences are not referred to, but the action itself and its intrinsic character are examined.

Retribution (from lat. retribuere) means "to give back something that is due". Retribution is therefore a return that is justified by the fact that something is due to a person - that they deserve something. The term is on the one hand past-oriented in that it refers to an earnings, on the other hand it is person-specific, as it describes the reimbursement of earnings to a certain person. In the case of the penalty as retribution, on the one hand the Assigned to punishment. The justified punishment concerns a person who deserves it. On the other hand, that will Punishment determined. The punishment is determined by the past act.

As we shall see, there is no such thing as retributivism. It is a collection of different approaches, but they all have a common core. Three claims can be identified that are shared by all retributivist theories:

R1: A person may be punished only if she deserves it (if she is guilty of a crime).

R1 ‘: A person should be punished if she deserves it (if she is guilty of a crime).

R2: The appropriate punishment is measured by the merit (guilt) of a person.

The first condition R1 is a limiting condition. Through them, a person's merit becomes a necessary condition for punishment. However, it does not yet follow that punishment may always be applied when a person is guilty. The second condition R1 ‘ denotes the normative duty to punish a guilty person. Guilt is therefore sufficient for punishment. The justification of the punishment is through R1 ' implies.[1] The third thesis establishes the connection between guilt and the degree of punishment.

Evidently the fact is that by the first thesis R1 the assignment of the penalty to the guilty person is made. Because of the necessary condition of guilt, it is not possible for a retributivist theory to justify the punishment of innocent people. Through the two thesis R1 and R2 a reference to the past is established, as it were. First, there must be a crime that can be punished. Second, the moral value of the past act (guilt) flows into the design of the punishment. This also excludes the justification of excessive punishment of a person, since the punishment should be based on the fault of a person.

The first question that arises here is how a person's fault can be measured. Second, it is unclear whether the value of the fault can be compared to the penalty. Unfortunately, the first question cannot be answered more specifically within this investigation. Reference must be made to the respective intuitions in a given situation (in the case of an existing crime). However, it will be taken up again briefly below. The second question is superfluous due to the implicit assumption which in the thesis R2 is included. Its correctness depends on the fact that it is possible to compare the value of the punishment with that of fault.

There are basically two strategies how the three theses can be supported. On the one hand, the punishment of the guilty may be on consistency with one superordinate theory to be tested for righteousness. The correctness of the retributivist theses thus depends on a theory on which they are based. This approach will prior principle Approach called.

On the other hand, there is the possibility of applying the retributivist theses in individual cases to investigate. The correctness of the theses is checked by comparing them with the general moral ideas in the respective situations. If such an analysis method is preferred, it is the so-called case-implication -Approach.

Three retributivist theories are described below. At the same time, each individual theory is checked for compatibility with the conditions of adequacy set out here. The two theories that will be considered first pursue one thing prior principle Approach to the derivation of the retributivist theses. They are each considered individually. Then I come to the method of prior principle Approach and will explain a possible difficulty in applying it to the problem of punishment. Finally, an approach is explained which uses the method of case-implication Derivation follows.

Balancing retributivism

A very common understanding of punishment is that Refunding an Unjustified Benefit. By failing to obey the law, a person has an unfair advantage over the law-abiding members of society. The function of punishment is to take away this advantage from the person. Punishment is nothing more than an enforcement of compensatory justice.


Accordingly, the most common retributivist theory consists of the view that punishment can remove an unjust situation. Compensatory retributivism justifies punishment through its function of compensating for an unjustified advantage.

A theory of justifying punishment by compensation does not presuppose a material advantage (financial or otherwise) for the delinquent. So the question arises, what exactly is the advantage? Herbert Morris advocates a theory of punishment as compensation. He writes the following:

“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. [...] Justice - that is punishing such individuals - restores the equilibrium of benefits and burdens by taking from the individual what he owes ... "[2]

His theory goes that through a crime, a person gains a certain relative freedom towards the other individuals in a society. While everyone else in a society is one Waiver of liberty accept in order to uphold the law, the person who commits a crime evades it. This has two advantages for this person. On the one hand, it already benefits from the law-abiding behavior of the others and does not pay the price for it. On the other hand, it has relatively more freedom compared to law-abiding citizens.[3]

The fact that the other people renounce a certain activity does not yet imply that one is not allowed to do it oneself, or that one can justifiably be prosecuted for an act. The question arises as to what extent is the advantage unjustified is.

In order to derive the moral force of demanding the compensation of an advantage through punishment, Murphy refers to one contractualistic Theory.[4] In a hypothetical original state, the members of a society would agree that all persons should equally renounce certain freedoms. Thus, the advantage is unjustified, since the individuals would give their (hypothetical) consent to the norm that no one may gain an advantage at the expense of the other. The person should therefore forego other advantages by way of compensation by being punished.


A modern theory of punishment as compensation for an unjustified advantage consists of two elements.[5] First, it assumes that a crime implies gaining an advantage. Second, by referring to an overarching principle (in Morris's theory, the original, hypothetical consent of the punished person), the justification for the equalization of this benefit is derived. This theory has some advantages as well as weaknesses.

A common accusation of retributivist theories is equating retributive action with personal vengeance. The justification of the punishment as retribution also implies permission to take revenge. An important distinction that must be made in order to avoid this equation is that between state and personal action. In this case it must be shown why a state authority to compensate for the benefit.

However, the theory of compensatory retributivism can show why it must be the state that punishes. The advantage that accrues from a crime is over all other individuals who have behaved in accordance with the law. The relationship of relative advantage thus arises between the delinquent person and the community as a whole. Compensating for this advantage is therefore a matter for the state as the representative of the community.

The theory can also normatively justify an important property of the punishment. It must be a suffering act that is inflicted on the punished person. There is no other way to offset the benefit. For compensation in the form of a benefit to all other individuals would be tantamount to repealing the law that has been broken.

Let us now turn to the real problem of justification (0). As we have seen, the challenge for deonological approaches is, among other things, that the rights of the punished individual are violated. A retributivist theory can only avoid this objection if it shows that the rights of the punished person are not violated (eliminating reasons). It has to be shown to what extent a person is certain through a crime Forfeited rights.[6]

Morris ‘contractualist theory does this in an impressive way. The renunciation of freedom by individuals in society is a prerequisite for the fact that individuals can have rights at all. If a person does not comply with this waiver, they thereby implicitly negate the possibility of having themselves the right to be spared from the respective offense. That is why she no longer has the right that she violates through the offense (the waiver of freedom that she evades), since she negates the conditions of the possibility of the same. So it cannot be hurt either. The theory can thus show that punishment is justified by establishing the cancellation of a right of the punished person by the crime.

In a theory of compensatory retributivism, permission to punish can thus be derived from a contractualist approach. The benefit that a person can gain from a crime is in the face of an original contract unjustified. It is a precept of compensatory justice that this advantage must be compensated again. This qualification of the advantage as unjustified already conceals a moral judgment about the content of the law that is being broken. The derivation of an obligation or permission to punish from such a theory depends essentially on whether a law itself can be morally (contractually) justified. The question that arises below is to what extent such a reference to a theory of justice is promising in terms of justifying the punishment.

However, a theory that justifies punishment by a principle of compensatory justice has another serious problem. On the one hand, the theory contains the thesis R2that the amount of the penalty must be based on the guilt of a person. On the other hand, there is a substantial theory of what this guilt consists of. Combining these two factors creates a problem for the theory. If guilt is seen as an advantage, it leads to a completely inadequate level of punishment. So the theory cannot satisfy condition (5). This will be explained briefly below.

The theory of compensatory retributivism as we have come to know it makes two assumptions. Firstly, it is assumed that people who keep a law always renounce a certain freedom and, secondly, that the guilt of a person who breaks a law corresponds to the freedom that law-abiding individuals renounce.

The difficulty arises when one looks at individual crimes and realizes the advantage (freedom) that can be gained from the crime. In the case of small crimes with a low probability of being caught, the waiver of freedom is greater than in the case of serious crimes. In fact, it is only a small burden for ordinary citizens not to commit murder, while there is a greater incentive for shoplifting. If the punishment is to correspond to the advantage that arises from the freedom not to obey the law, then small crimes should be punished more severely than serious ones.[7]

This level of punishment is inadequate and an important advantage of retributivist theories is lost. The adequacy condition (5) cannot be fulfilled. So it must either go against the thesis R2 be argued, or a person's fault is not a waiver of liberty. Both options are undesirable. The thesis R2 is part of the core of a retributivist theory. The decoupling of guilt from the renunciation of freedom would be tantamount to giving up the second assumption of the theory (and thus actually of the theory as a whole).

Furthermore, the first assumption (that law-abiding persons forego freedoms) is also questionable. For example, for many citizens the restriction of freedom not to kill a person is void because they would not do it anyway. Therefore, a person who commits a murder has no more freedom than most citizens and therefore no advantage.[8]

Restoring retributivism

Another intuition we have about punishment is that punishment has a function of restoration. A crime, so the idea is, on the one hand violates the rights of the victim and on the other hand calls the rule of law into question. Punishment can in a certain way remedy this maladministration. The punishment makes it possible for the status quo ante restore.


According to this intuition, there are philosophical approaches to justify the punishment through its restoration effect. The origin of these approaches is generally attributed to Hegel.

“The lifting of the crime is to that extent RetaliationWhen it is, in terms of the concept, violation of injury and, in terms of existence, crime has a certain, qualitative and quantitative scope, herewith its negation as existence has just such. "

"The demand that this contradiction [...] which is present here in the way in which the injustice is undone is resolved is the demand of a [...] punitive justice.“[9]

The crime, according to his thesis, consists in the negation of law. On the other hand, punishment denies the behavior of the delinquent person. Thus, through a kind of double negation, an unjust contradiction that arises from a crime is eliminated and the state before the crime is restored. On the one hand, it is obvious that punishment cannot actually undo the crime. Therefore, the question arises of how exactly one should understand such a theory. On the other hand, it is unclear why there is an obligation to maintain the pre-crime state.

One possible interpretation of the restoration of the status quo ante delivers Hempton. She sees the evil of a crime not in the fact that a person gains an unjustified advantage, but rather that the victim (individual or state) is disregarded as a result of the crime. The person who commits a crime puts himself on a higher level than the victim by this disdain. Such an expression of the superiority of the criminal over the victim is unjustified. Therefore, the person deserves to be punished for it.

The restoration of the original state requires that the criminal is downgraded again through punishment. This restoration, according to Hempton's approach, can only be accomplished through punishment.

“By victimizing me, the wrongdoer has declared himself elevated with respect to me, acting as a superior who is permitted to use me for his purposes. A false moral claim has been made.The retributive demands that the false claim be corrected. [...] If I cause the wrongdoer to suffer in proportion to my suffering at his hands, his elevation over me is denied, and moral reality is reaffirmed. "[10]

A theory of punishment as restoration therefore consists of two theses. First, that by punishment the status quo can recover from a crime. Second, that a crime necessarily leads to an unjust state. From these two theses it follows that punishment is justified, because it removes an unjust condition.


We used Hempton's theory to look at an approach according to which a crime creates an unjustified inequality between perpetrator and victim. The person who commits a crime places himself on a higher level than society and those affected. Punishment could restore equality and thus undo the crime (to some extent).[11] The justification of the punishment is thus on the one hand through the normative power of a state of the Equality of status given to the members of a society. On the other hand, it depends on the effectiveness of the punishment as a means of restoring this state of affairs. In addition to the fact that the theory has an intuitive plausibility, other advantages can also be ascribed to it.

In contrast to compensatory retributivism, the approach can capture the moral difference between serious crimes and minor violations of the law. Depending on the gravity of the crime, the perpetrator sets herself apart more or less from the law-abiding members of a society by upgrading. Thus, the problem of the unreasonable level of punishment does not affect this theory. Depending on the inequality that results from the act, an appropriate penalty is imposed to demote the person who committed it. And this inequality is intuitively greater in serious crimes than in minor ones. Thus it can fulfill the postulated adequacy condition (5).

Unless a theory of restorative retributivism refers to a principle of equality, the restoration norm would not necessarily require inflicting suffering. An example that explains the difference between the existing criminal law and the methods of punishment possible in this theory is provided by Dolinko. An author publishes a book with racist allegations. The best way to restore the original state is to publish a book that contains this refutation of the claims made. The state would therefore have to commission the production of such a book.[12]

Hempton's approach now explains the fact that punishment can consist in inflicting suffering. A person can only be demoted if they are harmed. The demotion of the criminal is an act of suffering inflicted on her. The question arises, however, to what extent the infliction of suffering must actually be necessary. Firstly, however, it is not clear whether this damage actually has to be the measures common in our criminal law, such as imprisonment or fines. For example, inequality could be remedied through social stigmatization of the people who have committed a crime. Equality of status can be realized in many different ways. Depending on the interpretation of the theory, it results in a significant revision of criminal law.

Second, it is also possible to use such a theory to argue for the abolition of the penalty. The law abiding citizens, to move the line of thought further, could all also be upgraded through rewards. This would restore equality. Here, too, it turns out that the moral problem that theory ascribes to a crime is not enough to justify punishment in itself. There are other ways to correct inequalities than punishment. Thus, the implications of defining crime as unjustified upgrading go too far.

The punishment is thus either not the appropriate means of restoring one status quo ante to achieve or the penalty need not necessarily follow. However, the two problems mentioned are internal theory problems. A duty of punishment like her in R1 ' cannot be derived from such a theory. The question, however, is to what extent the punishment can be justified. Here too, as we shall see, considerable problems arise for the theory.

Criticism is justified that the upgrading a person obtains through a crime is sufficient to violate their rights. The two moral principles, that of equality and that of individual rights, it seems, must be able to be weighed against one another. There is no obvious reason, in my opinion, for classifying principles of equality as more morally relevant than the rights of individuals. In order for the theory to be useful in justifying punishment at all (0), it must provide further information about how the various moral principles should be weighted.[13]

So the theory either cannot explain to what extent a person forfeits his rights through a crime, or it already presupposes it. The latter is suggested in the wording of the theory by always from more unjustified Upgrading is the issue. With this, however, the theory already assumes the moral correctness of the law enforced with the punishment.

Prior Principle Approach

This short section is for the purpose of that prior principle - To question the method as a suitable means of deriving the justification of punishment. The two approaches we have considered, compensatory and restorative retributivism, both refer to an overarching moral principle. It is a principle that does not apply specifically to punishment, but functions as an element of a theory of justice.

In the aforementioned theory of compensatory retributivism, it must be a unjustified Act relative freedom towards the law-abiding persons. This freedom is unjustified because the law itself is moral.[14] The question now is how the justification of punishment in the case of violations of amoral laws can be justified.

Suppose there is a law that is not moral in nature. This includes laws that apply for purely pragmatic reasons, such as right-hand traffic on the streets. Such laws exist to coordinate individuals. If the law is broken, it is not a moral offense. So the freedom that the person who breaks the law takes is not unjustified in a moral sense.

In this case there would be two ways in which a proponent of such a theory of compensatory retributivism could react. First, it can dispense with the premise that it is unjustified Freedoms that warrant punishment. In this case, however, there are two ways in which the relative freedoms can be balanced. Either the person who evades the renunciation of liberty is punished by being deprived of his liberty. Or all other individuals are, as it were, redeemed from the call to renounce their liberty - the law is repealed. However, there is no theoretical reason to choose the first option. Therefore, the theory, so worded, cannot justify the punishment for violating amoral laws and thus cannot meet condition (0).

A second variant to justify the punishment for violating amoral laws would be to characterize any violation of the law as unjustified. The result would be moral (not just methodological) legal positivism. In addition to the fundamental problems of legal positivism, one can object to this option that punishment is necessarily justified because there is a law. Thus, punishment in and of itself does not need to be justified and the moral problem of punishment is not covered by the theory. Condition (1) could not be met.

There is a similar problem with the presented theory of restoration by retribution. In order for the compensation to be justified by punishment, a unjustified Inequality exist. Again, there are two ways in which this thesis can be understood.

For one thing, inequalities in this theory can categorically be viewed as unjustified. Then the theory goes too far for two reasons. On the one hand, it implies a multitude of other egalitarian norms in addition to punishment. If the principle of restorative retributivism were accepted, one would also be obliged to carry out extensive redistributions, provided that this would lead to an equalization of social status. On the other hand, punishment is not necessarily an adequate response to a crime, as inequalities can be addressed in various ways. As we have seen in the example of the racist book, the theory not only justifies punishment, but also other means, as long as they serve the purpose of establishing equality between the criminal and the victim. On the other hand, the theory can equate “unjustified” with a violation of applicable law. This option would also have the undesirable consequences of a right-wing positivist position.

A fundamental difficulty for Prior Principle Approaches can thus be summarized in the fact that they do not give the justification of punishment the status of an isolated philosophical problem. The justification of the punishment depends on the fact that the law that is to be enforced is itself just. Therefore, the fact that a law is just is enough to say that the punishment is justified. Thus the punishment is not treated as a moral problem in its own right. Condition (2) is not met.

This problem arises when a law is not of a moral nature, but exists purely through positing as an element of positive law. In this case, either theories are inadequate to justify punishment, because compensation and restoration cannot be accomplished by just inflicting suffering. Or the theories justify the punishment with the fact that the law has been broken.

I therefore turn to a theory that pursues the other possible strategy for justifying punishment. It is the intuitionist Approach that does not argue with reference to the justice of the law, but sees the punishment as an act itself and thus responds directly to the question of whether punishment is justified.

Intuitionist approach

In the two theories of retributivism discussed above, we have one type top-down -Argumentation followed. The justification of the punishment, or its moral value, derives from one of these theories superior (justice) principle from. However, this is not the only way in which commandments, prohibitions or permissions can be derived from a moral-philosophical perspective. Another possibility is the bottom-up Analysis. The idea here is to reflect our common moral judgments and beliefs - ours Intuitions - to investigate a matter of fact. This is on individual situations Reference is made and the respective moral intuition is taken as a date in order to derive a concrete norm from it (or to check the norms of a theory for their correctness).


Especially since there are sometimes conflicting intuitions, the philosophical challenge is to check their logical connection. In fact, there is the problem that if two intuitions contradict each other, it is not obvious how they should be weighted, or which of the two is recognized as decisive in order to derive a norm from them. To address this problem, it is possible to convert a given set of intuitions into a coherentist ethical theory derive. If you choose this strategy, you look for the largest possible number of logically connected (non-contradicting) moral convictions (intuitions). This set is compared to other belief sets for explanatory power.

Michael Moore uses this form of analysis.[15] He examines various individual cases in which the punishment is intuitively justified (should). He concludes that retributivist intuitions, in most of these cases, justify our moral judgments (as opposed to consequentialist intuitions). He paints a coherent picture of it, consisting of retributivistic moral judgments. This is firstly not fundamentalist in the sense that it does not refer to certain fundamental beliefs that are not questioned further. Second is it radically holistic. This means that all moral beliefs contained in the set of beliefs must be consistent with one another. Third, his coherent theory is measured against the Explanatory power compared to other theories and not exclusively to the amount of related beliefs.[16]

By inferring the best explanation for the origin of the intuitions, he guides you intrinsic value which is inherent in retributive (punitive) acts.[17] In his view, this is the best way to explain our moral intuitions.

"If the best explanation for why we have such responses is that we are caused to have them by the truth of retributivism - that is, by the existence of entities and qualities to which the retributive principle refers - then we have good reason to believe the retributive principle. "[18]

The moral correctness of the punishment of the guilty is derived from reference to our intuitions in the individual cases.


An intuitionist approach looks at our intuitions in individual situations in which punishment is to be applied. Thus it relates directly to the act of punishing, regardless of an overriding principle (justice). This shows how punishment can be justified without the underlying law itself having to be just.

As the theory suggests, the best explanation for our moral intuitions about punishment is that there is an intrinsic value in punishing the guilty.[19] But the fact is that an intrinsic value can never be sufficient for a permission or a command for an action (all things considered). The problem of individual rights that can be violated by punishment still exists. However, it cannot be inferred from the intuitive correctness of an action that a person can lose their rights through a crime. Again, retributivist theory finds itself at a stalemate between the intuitive correctness of an action and respect for a person's rights. This can only be resolved by weighing the moral relevance.

One possible answer to the problem could be the thesis that the intrinsic value is sufficient to justify the duty to (at least justify the) punishment of the guilty.[20] However, if it is assumed that an intrinsic value itself is sufficient to justify the punishment, and if we intuitively agree that such value is inherent in the punishment, why should the punishment be justifiable at all? The claim that the intrinsic value of punishment is sufficient to justify it cannot do justice to intuition about punishment as a fundamental evil. This describes the problem too trivially.

Either an intuitionist approach cannot (sufficiently) fulfill the actual task of justifying the punishment (0), or it cannot show why the punishment is a morally problematic act (1).


As we have seen, retributivist theories try to qualify punishment as a separate category of actions that is sufficiently different from other inflicting suffering. As we have seen, the retributivist theories each have problems with correctly grasping the philosophical problematic of punishment. Either from the point of view of such a theory, the problem is marginalized by not attaching any weight to it. Or they fail to fulfill their actual task of justifying the punishment. So we turn to a different approach. We no longer regard the action as such, but instead direct our focus on the effect of the action on the individuals concerned and on society.

The following chapter aims to present the consequentialist approach to justifying punishment. It is intended to provide an overview of the possible positive consequences of the punishment and to critically evaluate the approach.Then the approach is confronted with the two most prominent objections and it is shown how it can react to them.


[1] The difference between R1 and R1 ‘corresponds, in my opinion, to the distinction between the modest and the bold Retributivism. Dolinko, 1991, p. 542. But it can also be between negative and positive Retributivism can be distinguished. See Duff, A .: Legal punishment in: The Stanford Encyclopedia of Philosophy, Zalta, E. N. ed., 2008.

[2] Morris, pp. 33/34.

[3] See Burgh, R. W .: Do the Guilty Deserve Punishment? In: The Journal of Philosophy, Vol. 79, 1982, p. 200.

[4] See Murphy, J.G .: Marxism and Retribution in: Philosophy and Public Affairs, Vol. 2, No. 3, 1973, pp. 225-228.

[5] By modern I understand the theories of Morris and Murphy mentioned above. See also Sher, G .: Desert, Princeton University Press, Princeton, 1987, pp. 69-90. and Dagger, R .: Playing fair with punishment in: Ethics Vol. 103, pp. 473-488.

[6] Goldman, A. H .: The Paradox of Punishment in: Philosophy & Public Affairs, Vol. 9, 1979, p. 43.

[7] Dolinko, D .: Some Thoughts about Retributivism in Ethics Vol. 101, 1991, pp. 545/546.

[8] See Duff, A .: Trials and punishments, Cambridge University Press, 1986, p. 203.

[9] Hegel, G. W. F .: Coercion and crime in: Basics of the Philosophy of Law, Collected Works, Gotsch, K. / Weisser-Lohmann, E. (ed.), Vol. 14, Vol. 1, Felix Meiner Verlag Hamburg, 2009, § 101/102, p. 87.

[10] Hempton, J .: The Retributive Idea in: Murphy, J. G./Hampton, J .: Forgiveness and Mercy, Cambridge University Press, 1988, pp. 125/126.

[11] In order to represent the theory as strongly as possible, we assume that there is always (necessarily) an unjustified inequality between perpetrator and victim in a crime.

[12] Dolinko, 1991, p. 551.

[13] Suppose you can even compare them in terms of their moral relevance.

[14] In the case of Morris ‘theory based on a contractualist theory.

[15] Moore, M. S .: The Moral Worth of Retribution in: Placing Blame: A General Theory of Criminal Law, Oxford University Press, Oxford, 1997, pp. 104-152.

[16] After ibid. Pp. 108-109.

[17] For the intrinsic value of punishing the guilty, see: Davis, L. H .: They Deserve to Suffer in: Analysis, Vol. 32, 1972, pp. 136-140.

[18] Moore, 1987, p. 109.

[19] The conclusion to an intrinsic value is assumed to be valid here.

[20] One advantage of the coherent theory of our moral beliefs about punishment is that it (like the two theories discussed earlier) can avoid circularity. It is not the already normatively charged concept of punishment that reduces its justification to a tautological truth. Moore’s approach examines a value-neutral concept and comes to the conclusion that it is morally correct.

End of the reading sample from 58 pages - top