Abstract

Most of the standard arguments against the retributive theory of punishment are hardly new. That the retributive view of punishment is but a rationalization of a primitive urge for revenge; that the retributivists, instead of providing an answer to the question about the source of our moral right to add a new evil to an already perpetrated one , simply assert dogmatically that punishment is an intrinsic good, i.e. something that needs no further moral justification; that it is impossible to apply the lex talionis in practice; that the retributivist thesis that the criminal has a right to punishment is absurd, because the criminal himself would be the first to deny that he has any such right; that the retributive theory is incompatible with the claims of forgiveness and mercy; that the practical consequences of the theory are conservative, the theory itself being in fact an apology for the existing laws and the existing social order; that the Hegelian idea of punishment as a ‘negation’ or ‘annulment’ of crime is either unintelligible or essentially utilitarian in character–most of this had been said already in the last century, or even earlier. All these arguments are still in use. 1 But in recent literature–in a number of papers published in the last twenty years or so–we find a new argument against the retributive theory. It is only natural that this particular argument should not have been used earlier: methodologically it is typical of a philosophical orientation which emerged only in our century–analytical philosophy