NCJ Number
67959
Journal
Center Magazine Volume: 13 Issue: 1 Dated: (1980) Pages: 42-51
Date Published
1980
Length
10 pages
Annotation
RETRIBUTIVE PUNISHMENT IS A NECESSITY INTERNAL TO LAW, IS INDEPENDENT OF MORAL JUSTIFICATION, AND HAS NOTHING TO DO WITH MORAL JUSTIFICATION OF LAW ITSELF.
Abstract
CHARACTERISTICALLY, ATTEMPTS TO ACCOUNT FOR RETRIBUTIVIST PUNISHMENT OF LAWBREAKERS EITHER TURN OUT TO BE AT LEAST COVERTLY UTILITARIAN--I.E., AIMING AT DETERRENCE OF FUTURE CRIME OR REFORM--OR FAIL TO JUSTIFY RETRIBUTIVE PUNISHMENT AT ALL. THE UTILITARIAN ARGUMENTS DO NOT APPROPRIATELY JUSTIFY THE AIM OF MAKING LAWBREAKERS SUFFER; AT MOST THEY JUSTIFY TOLERATING SUFFERING IF IT IS A MEANS TO A DESIRED END, OR A SIDE EFFECT OF SUCH A MEANS. BASIC TO A TRUE RETRIBUTIVIST PERCEPTION OF PUNISHMENT IS THE VIEW OF LAW AS AN INSTITUTION OF GOVERNMENT, RATHER THAN MERELY A SET OF ABSTRACT CONCEPTIONS, OR A SYSTEM OF RULES OR PRINCIPLES. WITHIN THIS CONTEXT, LAW HAS THE POWER TO REQUIRE PEOPLE TO DO THINGS, THE LAW DEFINES WHAT MUST BE DONE IF THE POWER OF THE LAW IS TO BE INVOCABLE; AND THE LAW HAS POWER TO LAY DOWN CATEGORICAL REQUIREMENTS THAT MUST BE INVOKED TO ENFORCE RIGHTS AND PRIVILEGES. NEVERTHELESS, THE LAW DOES NOT RESPECT THE CHOICE TO COMPLY OR NOT; ITS POWER IS EXERCISED TO FORBID PERSONS FROM FREELY MAKING THIS CHOICE. NONCOMPLIANCE MEANS PUNISHMENT. BY THIS TOKEN, THE PUNISHMENT SHOULD FIT THE CRIME EXACTLY. THE GRAVITY OF THE OFFENSE, THEN, DERIVES NOT FROM THE PUTATIVE MORAL WRONG BUT FROM THE GRAVITY OF THE REQUIREMENT IT VIOLATES.