The Role of Punishment

Professor Leo Zaibert, Andreas von Hirsch Professor of Penal Theory and Ethics at the Institute of Criminology at the University of Cambridge.

During the last fifty years or so, there has been immense scholarly interest in the notion of justice. Probably no other contribution deserves more credit for this than John Rawls’s epoch-making A Theory of Justice, though that work is itself greatly indebted to H.L.A. Hart’s The Concept of Law. Amongst the many issues that Rawls discusses, I want to focus on what he calls the circumstances of justice (themselves linked to what Hart had discussed under the heading “the minimum content of natural law”). Rather than aspects of this or that theory of justice itself, these circumstances are but the preconditions that render the very talk of justice “both possible and necessary”. Amongst the preconditions most frequently mentioned we find a certain moderate scarcity of goods and services, and a certain equality in physical and mental powers (and thus a concomitant equality in vulnerability). If goods to be distributed were over-abundant, there would be no need for schemes of cooperation; similarly, if one person were immensely superior to others (and thus practically invulnerable), she would have no incentive for cooperating. 

These points about the circumstances of justice are as straightforward as they are interesting – and it is perfectly understandable why they have generated an abundant and fruitful secondary literature. But, for current purposes, they seem rather odd: where does punishment fit in? The answer is that these points are exclusively concerned with one type of justice, known as distributive justice: the justice in the distribution of goods and services within the context of the basic structure of the state. There is, however, another type of justice (arguably a more fundamental type of justice – but I leave that aside), known as retributive justice. In contradistinction to distributive justice, retributive justice is not (or at least not essentially) connected to the state or to political matters; rather, it is connected to our responses to wrongdoing. If a person has done something wrong (whether within the political context or outside of if), then punishing her realizes retributive justice. The main question I wish to explore today is whether there is something resembling the circumstances of (distributive) justice that may apply to retributive justice. What (if anything) could be said to make the very talk of retributive justice “both possible and necessary”? How we answer this question will have repercussions regarding how we think about punishment – both in general, and in the specific context of the criminal justice system.

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