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Even More Varieties of Retribution
Twenty years ago Professor Cottingham published his deservedly
well-known article ‘Varieties of Retribution’
. Some water has
flowed under some bridges since then, and versions of retributivism
have multiplied. There is even talk of a ‘third way’ of justifying
punishment that is neither retributive nor consequentialist
. It is
because I benefited from his article, however, that I am venturing to
supplement and comment on it.
One author who thinks he has found a third way is Richard Burgh
... one can derive the concept of penal desert from a wider ethical
principle which steers a course between retributivism and utili-
tarianism. I derive this concept from the principle of compensa-
tion—the person who is responsible for wrongfully harming a
party ought to compensate the party for that harm—which in part
underlies the law of torts. In order to appeal to this principle, I
argue for a a version of the traditional legal thesis that crimes,
unlike torts, are social harms. Punishment will then be justified
on the grounds that it compensates society for this harm. This
view, though non-retributive, will capture the backward-looking
retributive intuition that the culpable offender should be pun-
ished because he or she deserves it.
This not so much a ‘third way’ as an old and popular version of
retributivism, reflected in the etymology of the word itself, as
Cottingham points out. He argues that it is difficult to see how pun-
ishments such as imprisonment can ‘repay society’ for whatever
harm has been done to it, since they confer no benefit on anyone. In
fact incapacitation, deterrence and correction are benefits, even if
J. Cottingham, ‘Varieties of Retribution’ in
See for example A. E. Bottoms, ‘Five puzzles in von Hirsch’s Theory
of Punishment’, in
Fundamentals of Sentencing Theory
A. J. Ashworth and
M. Wasik (eds) (Oxford: Clarendon Press, 1998).
These are Cottingham’s labels.
R. Burgh, ‘Guilt, punishment and desert’ in
and the Emotions
’, F. Schoeman (ed.) (Cambridge University Press, 1987).