The Enduring Pertinence of the Basic Principle of Retribution☆

• Published date: 01 December 2021
• Author: Vincent Geeraets
• Date: 01 December 2021
• DOI: http://doi.org/10.1111/raju.12330

© 2021 The Authors. Ratio Juris, published by University of Bologna and John Wiley & Sons Ltd.

Ratio Juris. Vol. 34 No. 4 December 2021 (293–314)

The Enduring Pertinence

of the Basic Principle of Retribution

VINCENT GEERAETS*

Abstract. Many philosophers and legal scholars believe that the principle of retribution can be

employed as a basis for respecting the offender as a person and for imposing relatively soft

sentences. This belief is inspired, at least to a certain extent, by the penal philosophy of Kant

and Hegel. My aim in this article is to question this widely held belief, with my contention

being that retributivists locate the basis of these normative considerations in the wrong place. It

is not the application of the principle of retribution that makes systems of criminal law fair and

restrained, but rather the other way around: Only by restricting the application of the principle

of retribution in various ways can we arrive at a system of penal law that is reasonable and just.

These restrictions themselves are not retributive in nature, but are intended to keep the princi-

ple of retribution in check. To substantiate these claims, I discuss the views of an older genera-

tion of philosophers and scientists, specifically those of Sidgwick, Durkheim, Malinowski, and

Piaget, and hold that these provide a fruitful basis for a better understanding of the principle

of retribution. In the second part of the article, I investigate how this alternative understand-

ing relates to the principles of proportionality and mens rea, while also making some clarifying

remarks about the issue of moral luck.

1. Introduction

The twentieth century saw a remarkable resurgence of retributivism, at least in phil-

osophical debates on criminal law and punishment in the Anglophone world.

Retributivism gradually gained momentum in the latter part of that century, and

present debates show it is now probably the dominant philosophical theory. What is

it about retributivism that makes it attractive as a justification for punishment? To my

mind, there are two reasons for its popularity. Firstly, retributive punishment is

widely seen as showing respect to the person of the offender. The individual in ques-

tion is not manipulated into conformity, as may be the case with utilitarianism.

Secondly, many scholars think that retributivism can be used as a basis for moderation

and restraint, i.e., it is said to favour a system of criminal law in which considerable

numbers of safeguards come into play to defend individuals against abuse, and in

which relatively soft sentences are imposed in the event of conviction. The purport of

retributivism is thus to establish a reasonable and humane system of penal law, in-

tended to respect the offender as a person.1

1 For references, see Section 2.

This is an open access article under the terms of the Creat ive Commo ns Attri bution License, which permits use, distribution

and reproduction in any medium, provided the original work is properly cited.

* I should like to thank Adriaan Bedner, Britta van Beers, Anne Marie Bos, R. A. Duff, Frances

Gilligan, Anne Ruth Mackor, Agnes Schreiner, Bas van Stokkom, Wouter Veraart, and Pauline

Westerman for very helpful comments.

Vincent Geeraets

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Ratio Juris, Vol. 34, No. 4

I have some doubts, however, as to whether the principle of retribution provides

a fruitful basis for respecting agency and restraint. This article aims to make these

doubts explicit by presenting and defending an alternative analysis of this principle.

In developing this alternative, I will borrow ideas from an older generation of philos-

ophers and scientists, including those of Henry Sidgwick, Émile Durkheim, Bronislaw

Malinowski, and Jean Piaget.2 What does this alternative entail? Retribution, I ad-

vance, is a very basic principle, i.e., the principle that an evil calls for a response equal

in force (“like- for- like”). While this principle may inform punishment, it can also be

at the basis of acts of retaliation and revenge.3 It also has a universal status as it satu-

rates thinking about justice issues in both traditional and modern societies. Forming

an understanding of the principle does not require years of practice, as children

quickly grasp its import and expect strict application in response to a transgression.

Typically, a retributive response does not presuppose any of the procedural safe-

guards we normally associate with a just system of criminal law. The only restriction

in play is that the extent of punishment should not exceed the gravity of the offence.

However, application of this principle can, in practice, be harsh, as it can involve in-

flicting very serious harm.

My alternative analysis suggests a different link between retribution and respect/

moderation. While present- day philosophers often regard retribution as a basis for

fairness and restraint, the relationship can, to my mind, be better understood the

other way around: It is only by restricting the application of the principle of retribution

in various ways that we can arrive at a system of penal law that is reasonable and

just. These restrictions themselves are not retributive in nature, but are instead in-

tended to keep the principle of retribution in check. My contention is that we restrict

the application of this principle for a variety of nonretributive reasons. One of the

reasons, for example, for moderating ius talionis is that the law ought to represent a

symbol against cruelty, while mens rea is attractive as a restriction because it enables

individuals to control their lives. In this article, I will say more about proportional-

ity and mens rea, arguing in each case that they are better understood as restrictions

on retribution rather than reflecting the desire to inflict retributive punishment. My

analysis also provides a better basis for understanding the issue of moral luck.

2 While these ideas and the alternative I defend connect well with one another, this is not to say

that these thinkers had a notion of retribution in mind similar to the one I develop in this

article.

3 This article proceeds from the view that there is no principled contrast between retribution

and revenge. Many scholars disagree. See, for example, Nozick 1981, 366– 8. In my view, how-

ever, making such a contrast serves an ideological purpose: Depicting retribution as good/en-

lightened and revenge as bad/primitive reinforces Kant’s view of retributive punishment re-

specting the offender as a person. Since this article is devoted to exposing that view as a mistake,

I would suggest that it would also be inappropriate to contrast retribution and revenge. Miller,

too, questions the scientific underpinning of such a contrast. He states that “the talion is the bête

noire of much legal theoretical punishment literature. This literature— for whatever virtues it

may have theoretically— is apocalyptically underinformed as an historical and philological

matter. It is rare to find a writer in the tradition who has more than a cartoon view of revenge,

largely abstracted from Elizabethan and Jacobean tragedy or the story of Michael Kohlhaus.

Indeed, the whole distinction this literature mobilizes between retribution and revenge is un-

tenable given any serious account of revenge as actually instituted in revenge cultures.

Invariably, revenge is caricatured as a crazy, imbalanced response to injury. No real revenge

culture would put up with this kind of revenge for a second” (Miller 2006, 206).