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5 J. Value Inquiry 1 (1970-1971)

handle is hein.journals/jrnlvi5 and id is 1 raw text is: 1 A PLAUSIBLE THEORY OF RETRIBUTION SIDNEY GENDIN In recent years, especially since the advent of penology as a science, retributivism has been much maligned as a barbarous and immoral theory. In addition, retributivists have been accused of logical howlers in developing their views and in attacking the views of utilitarians. In this paper I shall attempt to do two things. First, I shall discuss some misconceptions about retributivism. Second, I shall attempt to develop a retributive thesis which has more intuitive plausibility than previous ones have had. I. MISCONCEPTIONS ABOUT RETRIBUTIVISM (1) Retribution is revenge. This is the most common misconception. Thirsting after revenge is a primitive emotion which is as vigorously at- tacked by retributivists as it is by others. Thus, Hegel, for example, wrote: 1 Revenge remains defective inasmuch as it is the act of a subjective will . .. No act of revenge is justified. Revenge is subjective because it is a personal response - a wild striking back by the one who has been hurt. Or, in the case of death, when the injured party cannot strike back, the family may set itself up as the one who is hurt; it strikes back. In fact, revenge may be taken by anyone who feels that he has been aggravated personally by the original injury. Normally, one who is behaving vengefully is behaving vindictively and angrily, and consequently such a person is not likely to be concerned with rules, telling him now much he ought to strike back. On the other hand, one who demands retribution in a given case is ordinarily concerned with rules as to what is appropriate. Perhaps that is why we speak of getting revenge and exacting retribution but not of getting retribution or exacting revenge. Retribution presupposes the surrendering of primitive freedoms for the benefit of civilized society. Thus retributive justice must be lawful justice. That is why, for example, it can be argued that lynching is not exacting retribution. Revenge is private and personal but retribution is administered by disinterested parties. One who takes revenge on another takes pleasure in the suffering of his victim but one who seeks retributive justice is not motivated in that way. Of course we may sometimes approve in extraordinary circumstances of someone's going outside the law to get revenge. We may think that his 1 G. Hegel, Philosophy of Right, (Oxford: Clarendon Press, 1942), p. 247.