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NCJ Number: 66462 Find in a Library
Title: RETRIBUTION AND THE THEORY OF PUNISHMENT
Journal: JOURNAL OF PHILOSOPHY  Volume:75  Issue:11  Dated:(NOVEMBER 1978)  Pages:601-620
Author(s): H A BEDAU
Corporate Author: Journal of Philosophy, Inc
Columbia University
United States of America
Date Published: 1978
Page Count: 20
Sponsoring Agency: Journal of Philosophy, Inc
New York, NY 10027
Format: Article
Language: English
Country: United States of America
Annotation: RETRIBUTION AS A RATIONALE FOR PUNISHING OFFENDERS IS EVALUATED, USING THE RETRIBUTIVE MODEL OF H.L.A. HART AS THE FOUNDATION FOR THE RETRIBUTIVE THEORY.
Abstract: HART'S RETRIBUTIVE THEORY INVOLVES A MINIMUM OF THREE TENETS: (1) A PERSON MAY BE PUNISHED ONLY IF HE HAS VOLUNTARILY DONE SOMETHING WRONG; (2) THE PUNISHMENT MUST MATCH, OR BE EQUIVALENT TO, THE WICKEDNESS OF THE OFFENSE; AND (3) THE JUSTIFICATION FOR PUNISHMENT IS THE MORAL JUSTNESS OF RETURNING SUFFERING FOR MORAL EVIL VOLUNTARILY DONE. ALL THE VARIANTS OF RETRIBUTIVE THEORY CAN BE FORMULATED THROUGH REVISIONS AND AMENDMENTS TO THESE TENETS. THE RETRIBUTIVIST BASES THE THEORY OF PUNISHMENT ON THE BELIEF THAT AN OFFENDER DESERVES TO RECEIVE SUFFERING THAT MATCHES THE SEVERITY OF THE CRIME COMMITTED. ASSUMING THE ACCEPTANCE OF THIS PRINCIPLE (AN ACCEPTANCE THAT IS BASED MORE FROM BELIEF THAN LOGIC), THE RETRIBUTIVIST HAS THE DIFFICULT TASK OF MATCHING VARIOUS PUNISHMENTS TO PARTICULAR OFFENSES. FOR EXAMPLE, IN THE CRIME OF RAPE LITERAL RETRIBUTION MIGHT DEMAND THAT THE OFFENDER BE RAPED, OR HIS WIFE OR DAUGHTER. ALTHOUGH MATCHING PUNISHMENT TO CRIME IS IMPRACTICAL AND INHUMANE, THE ARBITRARY SCALING OF PUNISHMENTS ACCORDING TO PERCEIVED SEVERITY OF OFFENSES, USING A SOCIALLY ACCEPTABLE FRAMEWORK FOR PUNISHMENT (FINES, IMPRISONMENT, ETC.), UNDERMINES RETRIBUTION AS A COHERENT THEORY FOR PUNISHMENT. HOWEVER, THE RETRIBUTIVIST'S ARGUMENT THAT JUSTICE DEMANDS PUNISHMENT WHEN LAWS ARE VIOLATED IS NOT SUPPORTED BY LOGIC PERSUASIVE ENOUGH TO CONVINCE THE DOUBTER THAT THE ONLY THEORETICALLY JUST SOCIETY IS ONE WITH PUNISHMENTS ATTACHED TO BEHAVIORAL LAWS. MORE STUDIES ARE NEEDED. FOOTNOTES ARE PROVIDED. (RCB)
Index Term(s): Critiques; Punishment; Theory
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http://www.ncjrs.gov/App/publications/abstract.aspx?ID=66462

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