Retribution & Reparation

‘A wrongdoer deserves punishment for a wrongful act and he must compensate the surviving victims of his act’ (Nozick). In what sense are retribution and reparation duties?

Introduction

This discussion is

going explore the issues of retribution and reparation; it will consider the

works of theorists such as Dworkin, Hart, Austin, Bentham, Rawls and Nozick and

explore which avenue is the fairest and provides the best justice for the

victims of crime and society as a whole. The key term that will be considered

in the discussion is inequality. Inequality is the key term that needs to be

discussed when contemplating the validity of re-distributing resources.

Re-distribution can be done by either handing out state benefits of money,

housing or material items or by providing more opportunities to those that are

in disadvantaged positions. Nozick and Rawls are examples of two extremes in

liberalist thought; Nozick represents the true laissez-faire liberals

whereby redistribution is against equal opportunities and the only way to

present a just government is to follow free-market principles. Rawls, on the

other hand, argues that re-distribution can be fair as long as it is just, but

would not suggest quota systems or the socialist democratic state of the

Scandinavian nations. This section will end by comparing the two theorists.

There are other theorists such as Kymlicka who argue that re-distribution is

the only manner of ensuring that inherent inequalities are eradicated in the

political system. Such lines of arguments come from feminist thinkers, such as

MacKinnon. Also this discussion will consider Hart’s in reference to distributive

and corrective justice. In conclusion the discussion will turn back to the arguments

in reference to victims of crime and society and ask which argument is the most

valid or whether there is a better argument to deal with re-distributive

justice.

Hart’s Theory

Hart’s theory is

based within the positive and negative liberties; it follows the traditional

civil liberties method whereby the rights are either given directly or

impliedly by the state. This is based upon a traditional positive frame, but

there is an understanding that the duties between the right holder and the duty

bearer are not within the traditional form. The traditional view was that the

rights holder should be regarded as a beneficiary of the legal obligation to be

performed by the duty bearer: a recipient in other words, of the benefit

provided by such performance. Rather Hart believes that the person whom holds the right should have some

control or input over how the legal right should be performed in respect to the

obligation owed by the duty bearer:

The analysis of a right correlative to

obligation which is suggested by the foregoing criticisms of the benefit theory

that for such a right is to exist it is neither sufficient nor necessary for

the person who had the right to be a beneficiary of the obligation; what is

sufficient and necessary is that he should at least have some measure of

control over the correlative obligation.

Therefore Hart provides more power

to the individual; however not the power over the government which the

universal human rights theorists would argue. In short the positive and

negative of Hart may give the right holder more powers than traditional

positivists; it still invests a majority of the power in the state. This means that

liberty of the individual is not inherent, but rests in the determinations,

supremacy and only the obligations of this power and the check of legitimacy

ensures that the individual is treated justly and fairly. Therefore it is

possible to stretch this argument to include both retributive and reparative

justice; however the key to this argument is justice therefore the perpetrator

of the crime should be treated justly, therefore retribution is not a just

reason and is not legitimate therefore the protection of society and

rehabilitation of the criminal would be a better application of Hart’s theory;

however this theory based on correlative obligations would not rule out the

possibility of compensation paid by the perpetrator to the victim because this would

be fair, legitimate (through the courts) and just.

Austin & Bentham & Dworkin

Bentham argues

that the validity of law is due to a larger scale of citizens and community in

which the protection of the basic community can take precedent over the wants

of the each particular individual. Shestack in The

Philosophical Foundations of Human Rights argues that positivism is simply a question of rights, but instead of

maximising the pleasures and desires of the individual the government

would be maximising the general welfare of individuals’ therefore

minimising frustration of wants and preferences. Bentham is an early

utilitarian, which is similar to the basic line of argument as presented by

positivists, where the basic question of law is a conflict of rights between

the individual and the state. Hart is an example of a modern positivist whom

adapted the basic theory as set forward by Bentham to deal with the modern

consequences of rights and supremacy of the state which is now a lot more

complex than the simple picture of Bentham’s, which is illustrated by Hart in Positivism

and the Separation of Law and Morals .

Therefore the basis of Hart’s analysis was to separate the morality with the

rule of law to ensure that an analytical approach to the rights of the

individual and the needs of the community are expressed sufficiently; by adding

in the analytical rights of individuals within this structure. Therefore

ensuring not only the protection of the community, but justifying the validity

of the law that protects individual’s rights over the wants of the state.

Hart argues in Definition and Theory in Jurisprudence that this is because the state is subject to the legal rules

and conventions to protect individual’s as well as reduce tensions and ensure

the legitimacy of the government in much the same way that the individual needs

to follow the rules and conventions of the state. Therefore Hart utilizes the

analytical approach used by Bentham and would consider the role of the State in

the International Community in much the same way as the Individual within the

State.

As Bentham, Hart

would not focus on the justification of legal rights but consider the general

rules and conventions of the arena to deal with the conflict of rights between

the parties involved; however Hart’s legal exposition of human rights law does

not seem to be focused on the exact same justifications of law as Bentham would

be, which is illustrated by Hart in Essays on Bentham and The Concept of Law. This is because in the 20^th Century human rights law and conventions are viewed as a common part of legal

arena; whereas Bentham is dealing with an era where human rights or individual

rights law is a relatively new concept. Therefore Hart would start from the

premise that individual rights are valid and does not need to justify is as

analogous to municipal law within the state as Hart argues in Definition and Theory in Jurisprudence,

because he steps away from the need of justification and focuses on the

analytical concept of law, i.e. the validity of laws on the basis of the needs

of the general community outweighing the needs of the individual; whereby the

individual is protected from an illegitimate government by affording these

basic rights, which can only be overridden in legitimate circumstances as Hart

illustrates in Positivism and the Separation of Law and Morals.

Therefore justice is reliant upon ensuring the integrity of the state for both

Bentham and Hart, whereby the needs of the state outweigh the wants of

individuals; however individuals are allowed to do anything that is not

legislated against by the government, but certain rights are respected

otherwise the government would lose its legitimacy. Therefore the key to this

argument is that a criminal is punished not fore retributive or reparative

reasons but for the safety of society, for this is the only legitimate reason

for enforcing the law for the society, i.e. everything else that is governed by

law is the province of the individual.

Austin,

on the other hand, focuses on the illegitimacy of any convention or law that

proposes that it is supreme over the sovereign state’s power, therefore if one

applies this to a criminal who supercedes the law this is the reason for

punishment because the power of the state’s laws govern and are supreme to the

rights of the individual, i.e. the routes by Bentham and Austin are different

but the same outcome occurs. Hart in Positivism and the Separation of

Law and Morals expressly deals with this central thesis of Austin’s; Austin[‘s]thinking

that restraints on supreme legislative power could not have the force of law,

but would remain merely political or moral checks. Constitutional is an

example of restraining the supremacy of the state, i.e. the rights of

individuals that supersede the power of the state which is the basis of

Austin’s argument, which is exposed and critiqued by Hart in The Concept of

Law for the conception of the legally unlimited sovereign misrepresents the

character of law in many modern states where no one would question that there

is law. Justice for Austin is not vested in the individual; rather it is

vested in the state and any law that overpowers the legitimacy of the state

affects the validity of the state. This validity is broken by the individual

rights afforded by natural justice because these rights erode the sovereignty

of the state, therefore justice would be purely punishing the individual for

breaching these basic rules and purely deterrent and retributive in nature but

the rights of the victim are negligible.

If one was to

consider the works of Dworkin, especially the text entitled Taking Rights

Seriously; whereby the individual holds rights as trumps then this

would legitimize the role of international and constitutional law which deals

with the extent that the state can revoke the rights of the individual; leaving

only primitive law as the difficult law to institute. Dworkin does not champion

the vague aspiration of liberty but more specific rights, such as the freedoms

provided for in justice treaties and conventions, e.g., speech, assembly,

freedom, religion These freedoms are the core to Dworkin’s theory and cannot

be interfered with by the government; these rights are essential to ensure the

general welfare of the society. Dworkin’s theory tries to amalgamate

compensation and the welfare of society and uses a resource based theory, which

punishes criminals on the basis of justice and welfare of society; however it

also allows for the victim of crime to be compensated so provide reparative

justice.

Rawls

Rawl’s in his

thesis for engendering equality states that justice

is the prime basis of all government and to ensure justice human rights are the

obvious means and end to ensure justice is fulfilled. Rawl’s theory is based

on a few key ideas, which are the rights and duties of

government/institution of society and the burdens and benefits of

citizens co-operating. Rawls bases his theory that each individual has an

inherent and inviolable being set in justice – this being cannot be overridden

for the welfare of the society. This theory does not fall foul to the arguments

against modern utilitarianism. Rawl’s does use the social contract fiction of

Hobbes and Locke, however the basis of moving from ignorance (state of nature)

is reason and this reason set up on principles of justice that his social

contract is based upon. These principles are; 1) that each person has basic

rights and liberties in accordance with freedom; and 2) there is distributive

justice, where inequalities are restrained by the greatest benefit of least

advantaged and each person has the condition of fair equality of

opportunity. These principles cannot be derogated for the public good and

liberty is the supreme principle. .

Rawl’s theory is

very important when looking at justice theories because it begins to tackle the

universality of justice based on justice, as well as the inequalities apparent

in society. The theory does have flaws but it one of the more comprehensive

theories setting up basis rights and freedoms. Unfortunately, again this

theory is based on a social contact fiction and blurs the edges of reality.

Rawl’s theory may fail

when it comes to non-citizens or global equality, because they have not

contracted with the state to uphold their rights. Yet Rawls would probably

argue that his theory is based on justice and the social contract is based upon

a very theoretical plane, where justice prevails and in favour of justice these

rights would be afforded to all persons and not just citizens. Therefore Rawls

would allow for reparative justice but retribution would be unjust, rather aims

to rehabilitate and return the perpetrator to society would be appropriate,

i.e. in order for the perpetrator to compensate society as well as help level

the playing field because it is usually lack of opportunity and poverty

that causes crime and if the perpetrator is rehabilitated and educated then

society will be benefited.

Cahn

looked at justice from the flip-side of Rawl’s, in other words humanity needs

to learn from its bad experiences and ensure that legal violations of the past

are not repeated. Shestack summarizes this theory as ‘justice is the active

process of remedying or preventing what arouses the sense of injustice. An

examination of the instances which will be considered injustice thereby allows

a positive formulation of justice’.

This is a learning process and when necessary retributive and reparative

justice could apply in order to deter the crimes from reoccurring but this view

is too late and biased to the views of the controlling powers.

Nozick

Nozick’s theory

is primarily concerned with the notion of a free market stemming back to

Lockean theory whereby self ownership is the only method to ensure that all

persons are treated equally and justly. Nozick, as with Locke, focuses on

property ownership but the main difference is that Nozick is writing in a

liberalist era where material gain and wealth are examples of the main goals in

the modern era; whereas Locke was writing in an era where property ownership

was far and few between. The core thinking of Nozick is the entitlement theory

whereby there are three principles which are; the transfer principle; the

acquisition principle; and the rectification principle. It must be stressed

that Nozick’s liberalism is entrenched in the theory of natural and core rights

as set out originally be Locke. Therefore all men are created equally as

derived from the state of nature but in order to create a civil society men

contracted for a just system of governance with essential human rights. These

three principles state that; unowned property can be acquired into the

ownership of an individual, as all things are subject to ownership (acquisition

principle); property can be transferred between individuals as long as there is

no duress, i.e. voluntary – this can be done at a price, free or in receipt of

other goods (transfer principle); and the final principle rectifies violations

in property ownership to be transferred or compensated to the original owner in

the case of theft, fraud or duress (rectification principle). The final

principle illustrates the importance of property ownership to Nozick’s

conception of justice and natural rights. However there are some problems with

this such as how do cultures who do not believe in property ownership, rather

the guardianship of the land be included in such a theory. Or the problems of inherent inequality, because such a theory based on the free market would view

re-distributive actions by the government as unjust. The main problem for this

thinking is the original premise whereby Nozick assumes all people began as

equals, because the present Western society has been created primarily by white

men, which can be seen by his use of history:

This principle uses historical information about previous situations

and injustices done in them… and information about the actual course of

events that flowed from these injustices, until the present, and it yields a

description (or descriptions) of holdings in the society. The principle of

rectification presumably will make use of its best estimate of subjunctive

information about what would have occurred… if the injustice had not taken

place. If the actual description of holdings turns out not to be one of the

descriptions yielded by the principle, then one of the descriptions yielded

must be realized.

In addition if crimes

and injustices are determined purely on this theory the word jutice loses its

value and the rights of the victim outweighs the duties of the state owed to

the perpertrator, i.e. it cuts out concepts such as rehabilitation and leveling

the playing field so that disadvantaged persons do not feel that they have

to turn to crime. The reparative side of Nozick’s theory has some value if used

properly, i.e. it teached the perpertrator that acts that harm other

individuals and break the laws of society are not without a price tag and will

act as a method of paying back the victim; however in the same vein of argument

it can be used to ensure that the perpertrator pays back society for the crime

committed. As Nozick states:

In the absence of [a full treatment of the principle of rectification]

applied to a particular society, one cannot use the analysis

and theory presented here to condemn any particular scheme of transfer

payments, unless it is clear that no considerations of rectification of

injustice could apply to justify it.

Case Study – Death Penalty, the Ultimate form of Retribution

There is no justification of this penalty because of the problem

of wrongful convictions and the likelihood of innocence have been one of the

most influential movements for outlawing the death penalty in the USA. An

example of this is Roper v Simmons (No. 03-0633) a 17 year old

that was sentenced to death but exonerated in April 2004 because the DNA

evidence did not support the conviction. This has lead to the Supreme Court to

consider the constitutional legitimacy of sentencing under 18’s to death.

However the ethical considerations of killing someone who may be innocent is

shocking and definitely goes against the rights, notion of fairness and justice

as set out by human rights theorists, as well as the drafters of the human

rights laws and constitutions. This brings to mind the introduction of the

precautionary principle, an environmental law principle in the EU, which states

that if irreparable harm or serious harm of any kind is possible then the

action should not be taken. If one considers the statistics of the exonerated

individuals, never mind those who have already been put to death, there have

been 117 cleared of committing the crime that has sentenced them to death. Of

the 750 that have been put to death since 1976 at least 8 are probably

innocent. Another 13 have had there sentence commuted to life because they are

probably not guilty and 117 have been exonerated. Therefore say these figures

are correct then at least 15% of have been sentenced to death wrongly and 1%

have been murdered by the state. With a substantive right such as life then

this figure should 0% because murder is wrong. If there were not people

fighting for the innocence of death row inmates then this figure would be at

least 15% but is probably more.

Therefore this creates a compelling ethical argument, supported by statistics

to ban the death penalty as disproportionate and a violation of constitutional

rights

Conclusion

Rawls provides

the more cohesive approach to ensuring equality because he takes into account

inherent equalities and aims to level the playing field; whereas

Nozick’s argument stems from the belief that all have equal opportunities and

market-place values create valid inequalities. The latter picture painted by

Nozick avoids reality because the modern day society has been created on

inherent inequalities and the only way to eradicate these inequalities is

through re-distributive justice. Rawls uses the notion of rights to justify his

argument, which falls in line with the present era of equality rights. This

also seems to be the way that the arguments of Dworkin and Hart could be

interpreted. The arguments of Bentham, Austin and Cahn seem the most likely

argument that allow retribution and punishment; however if retribution is

allowed then this may include the death penalty; however the words justice and

human rights may supersede this. The truth is that an eye for an eye or life

for a life is the basic meaning of retribution and Nozick’s argument could

be extended to this, i.e. you commit a crime you owe the equal to society. This

is not justice and creates a society based on hypocrisy, i.e. state sanctioned

murdered.

In order to

create a just criminal justice system all aspects have to be just and

retribution and reparation are not the only factors, how about redistribution

of resources so there is no need to turn to crime and rehabilitation to benefit

the society with a value-adding citizen; however there is very important

benefit with Nozick’s argument of reparation, which is the perpetrator learns

there are two price tags to pay – one to society and one to the victim. However

in this sense it also means that society has to ensure that society is just and

creates a system that does not force the poor or uneducated to crime; therefore

it is necessary to advance substantive rights to disadvantaged groups in order

properly level the playing field rather than affording rights which

already are inherently present as has been suggested by Ratna Kapur and Brenda

Cossman:

[Substantive

equality] takes into account inequalities of social, economic and educational

background of people and seeks the elimination of existing inequalities by

positive measures The central enquiry of this approach is whether the rule or

practice in question contributes to the subordination of the disadvantaged

group. Accordingly discrimination consists of the treatment of disadvantages or

further oppresses a group that has historically experienced institutional and

systemic oppression, [which turns many to crime that could have been repelled by the state if

there was substantive equality].

Bibliography

• Amnesty International Canada, can be found at: Nozick, 1974