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.
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.