Walker - Even More Varieties of Retribution N I G E L WA L...

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http://journals.cambridge.org Downloaded: 06 Nov 2009 IP address: 130.65.109.155 Even More Varieties of Retribution NIGEL WALKER Twenty years ago Professor Cottingham published his deservedly well-known article ‘Varieties of Retribution’ 1 . 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 2 . It is because I benefited from his article, however, that I am venturing to supplement and comment on it. Repayment theory 3 One author who thinks he has found a third way is Richard Burgh 4 : ... 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 Philosophy 74 1999 595 1 J. Cottingham, ‘Varieties of Retribution’ in Philosophical Quarterly, 29 , (1979), 238ff. 2 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). 3 These are Cottingham’s labels. 4 R. Burgh, ‘Guilt, punishment and desert’ in Responsibility, Character and the Emotions ’, F. Schoeman (ed.) (Cambridge University Press, 1987).
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http://journals.cambridge.org Downloaded: 06 Nov 2009 IP address: 130.65.109.155 not every sentence can guarantee them. What one could argue, how- ever, is that ‘repayment theory’ does not fit the view that failed attempts, conspiracies and reckless use of vehicles or firearms ‘deserve’ punishment when no harm has been done. What is inter- esting is that this ancient version of retributivism was still on offer in the late nineteen-eighties. Desert theory
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Walker - Even More Varieties of Retribution N I G E L WA L...

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