Sunday, August 1, 2010

Justice part one

I have been interested in the subject of justice for quite a while now. While justice encompasses a broad range of subjects from fair distribution to ethics - it is theories of punishment that are most interesting to me.

I suppose the popular idea of penal substitutionary theory in Christianity is a big reason for my interest in the nature of punishment, but I have been interested in the idea since I was a teenager.

Penal Substitutionary Theory (PST) states that Jesus was killed to pay the price for humanity's violations of God's law. This requires a view of punishment that is retributive in nature. This means that a person should be punished for wrongdoing to achieve a sort of "evening out" of events. An eye for an eye and a tooth for a tooth. I think this idea sees justice as an end in itself, not a method to another end. Achieving this "evening out" of events, this balance, is seen as the way things should be. I do not see justice as an end in itself, but rather see justice as a means to achieving better lives for individuals and society as a whole. I believe that the letter of the law serves the spirit of the law.

So I do not agree with the retributive theory of punishment. While I am not sure I agree completely with broader utilitarian views, I think the utilitarian view of punishment is correct. This idea is that punishment should accomplish a purpose, and that the retributive idea of "evening out" is not coherent when it is not accompanied by one of the following reasons for the punishment. Good reasons are:

1. Rehabilitation - attempting to educate, heal, create empathy and understanding of the wrongdoing in the criminal.
2. Deterrence - creating disincentives for potential criminals to violate the law
3. Security - keeping dangerous people locked up for the safety of society
4. Paying back something when it is actually possible to do so - suing someone for some reason - lost wages, pain and suffering, to get back stolen money, etc.

The last category above is different than the idea of "evening out" in retributive justice. The reason is that if I have lost wages because of a car accident, and I sue the person that hit me, I can actually get back some of what I have lost. Money. If a person steals from me, loses all the money, and goes to prison, then this punishment does not actually pay me back anything at all. I am personally no better off.

I am going to leave #4 above for now, but actually, I don't think it qualifies as punishment at all.

Of course if someone murdered someone close to me, I might really feel that I want them dead. But regardless of this, the idea of retributive justice here is an absolute insult. It suggests that by the murderer being killed, it could somehow make up for the absence of my deceased loved one. No way. The death of the murdered pays me back in no way whatsoever. If they die, justice has not been served in my book, because the death of my loved one is a violation that can never be repaid. My loved one's death would be unjust and would remain unjust. The only thing close to justice would be for the killer to really, REALLY realize what he/she had done. And this is rehabilitation. And the person must be locked away for the security of society, both to keep the killer off the streets and to show create deterrence for others who may be tempted to kill.

Retributive justice is punishment inflicted without the purpose of rehabilitation, security, deterrence or making material amends when it's actually possible to do so; and this type of punishment, even when done carefully and dispassionately by the state, is still synonymous with another term. Revenge.


  1. Steven,

    Interesting post. I would make a couple of additional points. 1) you mention that if someone killed a loved one of yours that executing that person would not "pay you back." The point in retributive justice is that the criminal be recompensed in proportion to the crime that he/she committed. The victim in this scenario is primarily the one slain. It is perceived in retributive justice theory that the victim needs to be vindicated or justified and that is done by killing the murderer. 2) retributive justice seems to be a primal instinct in man. If someone wrongs us, the first instinct is to "make that person pay." It is seen even in little children. A kid hits a child and the other child hits him back. It is done instinctively without contemplation. Once we mature and begin to contemplate on justice, many of use move away from the concept of retributive justice.

  2. Hi Ken!

    Thanks for the additional points!

    That is interesting to think of the murdered one being the one who needs to be paid back. I would argue that the point still stands. If I lose my life, it will not be returned to me by the death of another.

    And I totally agree that there is a primal need for revenge. But I think it probably arose as a means of creating deterrence in early hunter/gatherer cultures.

    And yes, I think you are right - when we mature, we question the point of revenge (even though it is fun to watch in movies!). At the same time, it is important to be sensitive to the rights of victims and their families. What a terrible situation to be in.

  3. putting a murderer on death row and then putting him to death is, to me, a hate crime. I don't see it being done truly from a purpose of deterring future criminals for the same fate. We kill killers because we despise them and belief life would be better for us if they were dead. Whether the hate is justifiable or not, killing a man on death row comes across to me as primarily being a hate crime. I still remember the OKC news interviews on what should be done to Timothy McVeigh. every answer was full of what the interviwed person believed to be justifiable hate. Either way, it was a hate crime. i can't go for that unless I am pulling the trigger myself. And, I wouldn't have been able to kill a man who at that time was already incarcerated and not a threat to the public anymore. I am a definitely promoter of keeping killers separate from the public for safety reasons. But killers can change and grow and become better people. Their lives still have value, if we can get over the hate we have for them. McVeigh hated so many people based on the atrocities he felt they had committed (Waco, etc.). So, their were some eerie similarities between his hate for those he killed and the hate people had who wanted him killed.

  4. That's a great point, John. What does retributive punishment, or revenge, do to the punishers? Whether it is us pulling the trigger or someone we have hired to do the job?

    Does two wrongs make a right? Retributive punishment seems to think so.