The Intrinsic Good of Justice

• Date: 01 June 2019
• DOI: http://doi.org/10.1111/raju.12238
• Published date: 01 June 2019

© 2019 The Author. Ratio Juris © 2019 John Wi ley & Sons Ltd.

Ratio Juris. Vol. 32 No. 2 June 2019 (193–209)

The Intrinsic Good of Justice

BRIAN ROSEBURY

Abstract. Some retribut ivists claim that when we punis h wrongdoers we achieve a good: jus-

tice. The paper argues t hat the idea of justice, though rhetor ically freighted wit h positive

value, contains only a sma ll core of universally agreed mea ning; and its development in a va-

riety of competi ng conceptions simply recapitu lates, without resolving, debates w ithin the

theory of puni shment. If, to break this deadlock, we stipulate an ex pressly retributivist con-

ception of justice, then we should co ncede that punish ment which is just (in the st ipulated

sense) may be morally wrong.

1. The Good of Justice as an Aim of P unishment

Advocates of a retributive theory of punish ment sometimes appeal to the intrinsic

good of justice. This good provides a reason why serious wrongdoers should be pun-

ished, irrespect ive of whether such aims as an incr eased sum of human happiness

are well served by the decision to pun ish. As Michael S. Moore puts it,

Retributivism pu rports to be a theory of justice, and a s such claims that punis hing the guilty

achieves something good—namely justice— and that therefore reference to any ot her good conse-

quences is beside the poi nt. (Moore 1997, 11; italics added)

In this paper I wil l ask whether the idea of the intri nsic good of justice makes any

distinctive contribut ion to the case for “pure” retributivism: the v iew that the of-

fender’s guilt is not only a necessary but a suff icient condition for punishment to

be pro tanto justified, assum ing that a legitimate authority to punish exists a nd that

fair procedure is mai ntained. (When I refer later to “retribut ivism” without further

qualification, I am refer ring to this view.)

An important reason for foc using on the idea of the good of justice as a justif ying

aim of punishme nt is that it is invoked every day in real-life situations, less often by

philosophers than by a wider expres sive community: judges, politicians, religious

leaders, crime victims, a nd the general public. A common formula is to advocate

“justice (but) not revenge.” The distinction has great rhetorical power, since the attri-

bution of justice tends to disable moral critici sm: “Just, yet morally wrong” strikes

most people as puzzling if not contradictor y. But what, in the context of punishment

and as contrasted with revenge, is justice? Is it simply revenge, made orderly and

proportionate by a system of law? While a few writers would accept that

Brian Rosebury194

Ratio Juris, Vol. 32, No. 2© 2019 The Author. Ratio Juris © 2019 John Wi ley & Sons Ltd.

description,1 I believe most people would reject it in both its aspect s. They would

claim that justice is q uite different from revenge, and that there i s more that marks

out justice than the sovereignty of law: Rather, law is the mean s whereby this im-

portant good, justice, is achieved. Following the 9/11 attacks, Amnesty International

issued a position statement, Pursuing Justice, Not Revenge (2001). The statement makes

no attempt to explain the dist inction between just ice and revenge. It characterises

justice, by implication, largely in terms of inter nationally recogni sed standards of

procedural fair deali ng. Yet it also speaks, as is usual in such case s, of “bringing to

justice” those who committed t he 9/11 attacks; and this can not simply mean “bring-

ing within the fa ir procedures,” since everyone, including the in nocent, is brought

within those. (Or at best, Amnest y is equivocating betwee n this procedural sen se

and a retributive sense whereby “justice” would mean t he desirable state of affairs

in which the proven attackers receive judicial pu nishment.)

The idea of the good of justice is not reducible to assert ions that actually us e

the word “justice”: Arguments supporting or paraphrasing it may use other expres -

sions. For example, a retributivist saying (as Moore does) that “punishment achieves

the good of justice” may also argue t hat “the good that punishme nt achieves is that

someone who deserves it gets it” (Moore 1997, 87). But these claims are not logica lly

identical, or interdependent. If someone produces a compelling a rgument to show

that desert does not exist, that no one deser ves anything, t hat argument would not

automatically invalidate any claim that pun ishment achieves the good of justice. The

good of justice might be character ised without reference to desert—for example, as

a state of harmony that must be restored whenever a crime has d isturbed the social

order. Conversely, the fact that the idea we are examin ing is sometimes supported

or paraphrased without using the word justice does not render it unintel ligible, any

more than the fact that revenge is somet imes expressed without usi ng the word

revenge renders incoherent t he idea of revenge. The crucial condition is that i n both

cases the canonica l term denoting the idea must be evidently appropriate once the

argument has been f ully stated, even when it has not, or rarely, been employed in the

course of the exposition. The upshot of the arg ument must be capable of being stated

as: “Here, then, we have the good of justice” (or “the evil of revenge”).

One more prelimina ry distinct ion needs to be made. In this field of t heory, it is

conventional to distingu ish “backward-looking” (retributivist) justifications of pu n-

ishment from “forward-looking” (consequentiali st) ones. Moore gives us a third

possibility, however: a “present-looking” justif ication, in which the aim i s the good

state of affairs (GSA1) caused to exist when just punishment is enacted, prior to a ny

consequent states of affairs (GSA2, 3, and so on) that may be aimed at. A justif ication

on the basis of these fu rther states of affairs would not be a retributivi st justification:

It would justify punish ment instrumentally. I take GSA1 to be the locus of the good-

of-justice justification of retr ibutivism. The GSA1 theory is not, of course, the only

retributivist, nonin strumentali st theory of punish ment. It is possible to conceive

retributive justice not as a state of affai rs brought into existence by punishment, but

as an attribute of the act of pun ishment. We can call this the stric tly deontological, or

non-state-of-affairs concept ion. On this view, it is right that we act to punish the

1 An example is Barton 1999.