Philosophy and Law Just Justification: Essay

H.J. McCloskey gives a different account, however. He makes his argument for the Retributive Theory of Justice in opposition to the utilitarian notion of justice, but maintains that the criminal has a right to punishment. He says that the utilitarian approach to justice takes crime to be bad and punishment a necessary ill to stop the bad (crime). In utilitarianism, punishment does not even require a person to be guilty of any crime so long as the punishment deters other crimes to ensure the greatest good in society (thereby sacrificing one for the good of many). McCloskey says that this is not just and that the person being punished must be deserving of that punishment. He says "evils should be distributed according to desert and…the vicious deserve to suffer" (120). His version of the retributive theory, therefore, says that individuals who commit crimes deserve (have a right) to be punished because they deserve to suffer for committing the crime. Further, the criminal made myself unequal by committing the crime, so he deserves to be treated unequally (i.e., unlike other members of society who are, e.g., receiving various freedoms).

Throughout all of the takes of the retributive theory of justice from these philosophers, though, one major theme has remained the same: the offender's right to punishment. Whether the offender is punished because she has punished herself, has a right to be honored for her rationality, has a right to repay her debt to society, or has a right to suffer for her wrongdoings, she is still the focus of the theory. The individual victim of the crime is mostly absent from the theory. Further, society at large is often the object of the victimization and repayment in this theory. A criminal has hurt society; she has, e.g., made the balance of power unequal or has made the social contract less binding by her actions. The victim's rights are not overtly honored by punishment in this theory (indeed, it is not even clear what the victim's actual rights are). However, it does make some sense if it is understood that the victim's rights are bound up in that of society's. For example, if society has a right to equilibrium, the victim is compensated in that restoration of that equilibrium (and the restoration of equilibrium every time anyone is victimized before or after her). Society has an obligation to help the wrongdoer because it helps everyone (be it, e.g., by reinforcing the social contract or by redistributing the balance of benefits or burdens). This is the society that the victim knowingly chose to live in, so in that sense, her rights are being honored as well.

Works Cited

Ezorsky, Gertrude, ed. Philosophical Perspectives on Punishment. Albany: State University of New York Press, 1972.