Retribution & Reparation | Free Criminal Law Essay
'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?
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 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 20th 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.
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'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
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].
- Amnesty International Canada, can be found at: Nozick, 1974