Punishment and Personal Responsibility

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sentment. Why should this matter? Because of the tacit understanding
of people inherent in moral censure. We do not blame or
resent dogs, natural disasters, machines or infants when they
cause harm or distress. We do resent reasonably mature human
beings, however. Seen this way, to be blamed or resented actually
affirms that you belong to the latter category. It affirms your
status as a responsible moral agent; an equal who is held to expectations.
If an elephant steps on my foot I shall regret my pain,
but I will not hold it against the animal. The elephant could not
properly be blamed, since it cannot be held to normative standards
of behaviour (such as the norm that one should not step on
others’ feet). It consequently does not matter if the elephant
stepped on my foot accidentally or not. 45 If you step on my foot,
however, it matters a great deal if it was accidental or intentional.
If it was intentional, I will resent you for it, and will perhaps believe
that you deserve moral criticism for what you did. It is important
to note that you should take this criticism of mine as an
unequivocal compliment, even though it might be unpleasant.
Quite frankly, it means that I do not consider you an elephant.
Retributivists have referred to this second reason as the respect
for persons argument. Following the restrictiveness of moral
emotions of blame and resentment (or praise and gratitude, for
that matter), they have concluded that retribution is the only penal
response that respects the criminal as a person. In morally
censuring him or her, the criminal’s choices are respected as
choices of an autonomous moral agent – an agent that could have
and should have acted differently.
Why should we care about (1) and (2)? Why should we take them to justify
retributivism as a guiding theory of penal practice? Well, the first
reason stands and falls with the importance of aspects of the Rule of Law.
If you find such principles as consistency and fairness between individu-
45 We could discuss whether or not an animal such as the elephant is capable of
intentional action. It does seem obvious however that an elephant may step on
your foot without knowing it, but also that it may do it in the process of attacking
you. By saying that it does not matter whether the elephant steps on your
foot accidentally or not, I intend that it makes no moral difference.