It is particularly prevalent among libertarians and practitioners of Restorative Justice to favor restitution and reject punishment, or to at least reject retribution (private punishment “owed” to the victim / “just deserts” / “getting even”). I find this brief argument, from Getting Even: Revenge as a Form of Justice by Charles K. B. Barton, p. 93, to be persuasive:
1. Humans are innately social beings who can flourish and achieve their full humanity and potential in terms of moral and spiritual maturity, only in society.
2. A human society is a moral community.
3. A moral community is such that its members are mature, morally responsible individuals who hold one another accountable for wrongs to fellow members and to the common good.
4. To hold persons responsible and accountable for wrongs to fellow members and to the common good is to consider them liable for blame and punishment for such wrongs, independently of functionalist and instrumental considerations, such as expressing disapproval or deterrence—though obviously such considerations are not irrelevant to impositions of punishment.
5. To consider persons liable for blame and punishment for wrongs independently of functionalist and instrumental considerations is morally to accept retribution.
Using this explanation as part of an argument, there are two conclusions which follow:
6. Human individuals can flourish and achieve their full humanity, including moral maturity, only if they morally accept retribution and retributive liability for their wrongful actions.
7. Since individual flourishing and the achievement of one’s full humanity, including moral maturity, are good things worthy of being pursued, retributive punishment within the limits set by the principles of justice is also a morally good thing which may be pursued and, unless contra-indicated by countervailing instrumental and functionalist considerations, or by the appropriateness of mercy and forgiveness, ought to be pursued.
I highly recommend Barton’s book Getting Even. And his book Restorative Justice: The Empowerment Model is likewise excellent.
For a more comprehensive discussion about the key role that mediation must play in any legal system that aims to achieve justice, see my working paper A Call for Mediation Casebooks.
With a BS and MS in chemical engineering, Gil has worked in the engineering and construction business since 1994 as a process engineer, project engineer, and project manager. He is Head of Engineering at a clean fuels company. He ran for US Congress in 2000 and 2002 on the Libertarian Party ticket. He has studied and published on subscription patrol and restitution and has intentions to start such a company. He has written for lewrockwell.com, mises.org, strike-the-root.com, and anti-state.com.
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I see at least three major problems with Barton’s quoted argument:
1) It seems rather lacking of an actual argument. It looks like he makes a big unsupported leap somewhere in (4) and (5). He seems to just define his way to his conclusion that retributive punishment is legitimate.
2) There’s also, arguably, an excessive mixing of law and morality here. The talk of blame and forgiveness evoke morality more than law, and the impulse to punish out of revenge, over and above ending and rectifying threats/rights-violations (as far as possible), stems from that. This may be part of the leap I pointed out above: how does one get to the legal “it is right/legitimate to punish” from the moral “this person is blameworthy for committing a wrongful act”?
3) Restitution, ostracism, and the like can serve as “punishment” even while that is not their primary purpose. One can accept that oneself and others are liable for these things if we or they commit rights violations, particularly serious ones, without seeing some non-functionalist, non-instrumental (particularly vengeful) retributive punishment as necessary for mature, moral, flourishing human beings and communities.
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A Short Defense of Punishment http://ff.im/-ssBET
October 22, 2010