The Retributive Theory of Punishment - Essay Example

?The Retributive Theory of Punishment This paper will discuss the Marshall’s conception of Retribution and the employment of his specific meaning correlating with the theory of Retributive Theory of Punishment. Marshall’s conception will build a case, within his interpretation of Kantian Ethics, for the abandonment of the Death Penalty. The paper, however, also brings forward the contrary point of view of Leiser who thinks that the Death Penalty is not against the intrinsic human value as discussed by Kant. The paper will develop its own understanding by placing both point of views historically and concludes that Kantian conception can not be taken a-historically, i.e., as an abstract ideal. The difference must be made between the case of Osma Bin Laden, and a murder case occasioned by an instant passion. Death Penalty should be abandoned. However, the time for the idea to get realized would be decided by healthy social conditions. Theories of Punishment In its Hammurabi’s sense the retribution stands for letting punishment fit the crime as eye for an eye, or hand for a hand, or life for a life. There is no place in this conception for replacing the consequence of crime with any thing other than the nature of committed crime. For Utilitarians, however, punishment should look for consequences resulting through the incurring of punishment. The Utilitarians put forward Deterrent and Reformative punishment theories. Deterrent means to punish others in order to deter from committing crime. It may be expressed in a dictum of a judge, “you are not punished for stealing sheep, but in order that sheep may not be stolen (Mackenzie 374).” This theory is oppressive in nature and considers human being as a thing. The Reformative theory of punishment emphasizes on changing the structure and thought of human being, compulsory volunteer service and social services are the examples of this theory. Retribution as connection between Punishment and Guilt Retributive theory of punishment aims to make a return of a man’s deed upon his own head. For Mackenzie, the aim of Retribution is to make it apparent that the evil consequences of his acts are not merely evils to others, but evils in which he is himself involved. Retributive theory therefore emphasizes upon facing the similar consequences as that of the committed crime. Being different from the other two theories, and often interpreted in its literal meaning, the important meanings of this theory remain hidden. The aim of retribution is to make connection between punishment and guilt, that is, to develop a sense of guilt regarding the crime. Retribution as expression of Moral outrage There is an aspect and meaning of retribution that becomes operative in certain situation in order to try to answer the question whether some social phenomenon should be punished because it is violating the moral order of the society? Morality works upon the defined and prevailed conception of human being and the owned world-view, this may include religious position. The retributive theory, understood in its literal sense, may operate to curb the increase of a social phenomenon endangering the social moral order, and thus may operate as a utilitarian principle. For example, the increase of the crime rate in juvenile may trigger an operation against such groups to keep control of social moral order. Popular Instinct Retribution may be seen through the upsurge of popular instinct. In this situation, the need to go deep into the reality, and placing event within discursive world, does not play a role. The popular instincts decide retributively the punishment for the crime. For example, a rape of a female in a village may invoke a popular reaction that results into a strict punishment. In this situation, no other shade of retribution will be looked upon. Purely retributive justification It is difficult to understand the concept pure, as it may mean going back directly to Hammurabi’s literal intention and may mean understanding retribution only in the sense of an eye for an eye and life for a life. In other sense, “pure” may mean to bring forward the spirit of retributive justification. It is accepted that the justice must be placed upon retributive concept. However, the spirit of retribution must be understood always essentially in a specific time, within certain context. For example, William Brennen denounces capital punishment on the ground that it defies the human-ness of a human being. Retribution should invoke the conception of human being understood in a specific time in order to develop a pure conception of justice, as the honorable judge maintains. Marshall’s conception of Retribution Marshall’s conception of Retribution is placed upon the idea of finding the spirit of retribution, instead of following Hammurabi’s conception blindly. Marshall insists that the punishment must not be cruel and unusual. For him, the retribution principle may allow the death penalty, however it is cruel and unusual because it violates the spirit of Eighth Amendment that prohibits the infliction of cruel and unusual punishment. For Marshall, the death penalty must comport with the basic concept of human dignity as it is defined through the amendment. For Marshall, the popular retribution theory entails that a wrongdoer deserves certain punishment because of his committing of certain crime, is not a valid position. This position negates the human dignity of the wrong-doer. For Marshall, death penalty is an unnecessary promotion of the goal of deterrence and it is not a legitimate notion of retribution. Marshall’s Concept of Desert For Marshall, the deserving must entail the conception of human dignity. The wrong-doing does not mean that the wrong-doer is now not a human being and therefore must be treated like an animal or any other nonliving beings. The human dignity must remain entailed even by the wrongdoer and the retribution must be interpreted within the context of the already developed constitution. Kant’s conception of a person Kant’s philosophical exposition provided special status to human being in the universe of living world. For Kant, the human being is special because of his/her capacity to have and generate rationality, and place his/her all actions upon rational will. Kant’s epistemology provides a synthetic conception of facticity and the ingrained structure of reason in human being, in a universal fashion. The ability to form a conception of reality is not a specialized ability for the selected human beings, rather a universal ability, i.e., whenever there is a human being, it has the gift of internally structured categories of reason. Rationality however without senses remains blind, and senses without reason remain meaningless. Rationality therefore has the potential to move in contrary form, antinomy. Yet, a moral action requires from a self-responsible rational being to develop a law-like moral maxim and then act accordingly, instead of moving upon passions. It is through moving upon categorical imperative, as Kant termed the law-like moral maxim, a person finds his/her true autonomy. Incompatibility of Death Penalty with the Kant’s Ethics For Marshall, the capital punishment of the Death Penalty is against the Kantian ethics that remains the basis of the Western civilization. The Kantian Ethics gives human being special status and worth within the living or non-living world. The special worth of human being comes through its ability to be autonomous, and place all its activity through law-like rational and moral principles. To waste this special being is a crime for Kant. Marshal interprets Kantian Ethics through its idealism. However, there is another way of seeing Kantian Ethics, that is, through the historical position. Leiser’s Argument for the Permissibility of the Death Penalty Leiser moves against Marshall’s position while invoking inverted Kantian Ethics to describe that it is not against the respect of the wrong-doers if they are given capital punishment. His position maintains that a wrong-doer, if he/she is a rational human being, has to bear the burden of the responsibility of his own action. If it happens then there is no violation against the dignity of the wrong-doer while giving him capital punishment. If, as Leiser thinks, it is not the case, that is, that the wrong-doer has not made a crime rationally, then there is no need to understand him/her as a rational autonomous human being and therefore there is no denial of human dignity while giving capital punishment. Conclusion Both Marshall and Leiser invoke Kantian theory of retribution in order to justify capital punishment. Both show an in-depth understanding of Kantian Retributive theory. However, both neglect that Kantian Retributive Theory, as Kantian Ethics is placed upon the formal position. The ideal of Kantian Ethics place human being at a highest level, but only if a human being becomes enlightened. However, he himself claims in his essay, that the process of enlightenment, though starts, yet the time has not come when we can term every one living as enlightened. Until it happens, the individual is wrapped in superstition, egoistic passions, and self-interested goals. Till that time, Kantian Retributive theory may allow the capital punishment for anyone found engaged in anti-civilizing practice or close to it. Work Cited Mackenzie, John S. A Manual of Ethics. London: University Tutorial Press, 1964. Read More