Punishment and Personal Responsibility

35
tion is in effect also to provide reasons for why the state should design its
practice of punishment in accordance with retributivism, i.e. according to
principles of desert. It is to answer why a penal practice which gives rule
breakers what they deserve indeed is justified. This admittedly depends
on that we accept that if it turns out that some variant of the retributive
theory is the best answer to (Q), then the rival answers are ultimately
wrong. But this seems to follow from the fact that the rival answers are
rival. 43
I shall argue that there are two significant reasons in favour of the
retributive answer to (Q), i.e. in favour of a retributive penal regime. 44
1. The institutional reason. A retributive penal regime ensures that
certain principles of fairness and justice are respected. These
principles are: that no one should be punished without deserving
it; that like cases should be treated like; and that there should be
a proportionality between crime and punishment which is bound
both upwards and downwards. These principles serve to exclude
unfair inconsistency in punishment, excessive punishment, punishment
of the innocent, etc. The rival theories of deterrence or
rehabilitation do not seem able to respect this set of principles to
the same extent.
2. The symbolic reason. A retributive penal regime engages in retributive
punishment, or retribution. Retribution, unlike punishmentas-deterrence
or rehabilitation, necessarily involves moral censure
– it necessarily involves moral emotions of blame and re-
43 That is, I will throughout maintain that retributivism, deterrentism and rehabilitationalism
present theories that are incompatible with one another: Retributivism
differs from its rivals in its emphasis on desert, and rehabilitationalists
and deterrentists are in disagreement about the proper way to arrange penal
policy. When we say that (Q) should be answered along retributive lines we say
that a retributive penal regime is justified. As a consequence of the incompatibility
between the rival theories, this either means that the other theories do not
represent justified penal regimes, or that they fail to provide as justified regimes
as retributivism. My argument should be read these latter lines.
44 My debt to Morris 1968 is here undeniable. In fact, chapters 4-6 of this book are
intended as elaborations of the views set out in this article.