I have written previously about retribution as a justification for the punishment of criminals, in the context of an article on capital punishment, see here. The purpose of this article is to elaborate on that justification and to examine the human rights argument against corporal punishment.
It is important to distinguish retribution from mere revenge. To take revenge is to procure something unpleasant for a person, in retaliation for something they have done or failed to do. Revenge is not necessarily justified, as it is not necessarily carried out in response to a crime or an immoral act. Furthermore, a vengeful act is not necessarily commensurate with the act it is responding to.
By contrast, the concept of retribution refers to justified and commensurate acts, in response to crimes or immoral acts (I am only concerned with the former).
In the article on capital punishment, I challenged the utilitarian case against retribution. CS Lewis also provides a challenge to the utilitarian view of punishment, i.e. that only rehabilitation or deterrence can provide a justification for punishing criminals.
The crux of his argument is probably the following:
“My contention is that this doctrine, merciful though it appears, really means that each one of us, from the moment he breaks the law, is deprived of the rights of a human being. The reason is this. The Humanitarian theory removes from Punishment the concept of Desert. But the concept of Desert is the only connecting link between punishment and justice. It is only as deserved or undeserved that a sentence can be just or unjust. I do not here contend that the question “Is it deserved?” is the only one we can reasonably ask about a punishment. We may very properly ask whether it is likely to deter others and to reform the criminal. But neither of these two last questions is a question about justice. There is no sense in talking about a “just deterrent” or a “just cure”. We demand of a deterrent not whether it is just but whether it will deter. We demand of a cure not whether it is just but whether it succeeds.”
In Lewis’ view, the logic behind rehabilitation and deterrence, would inexorably lead to the punishment of the innocent. The idea that an innocent man should not be punished is based on the maxim of ‘just desert’; if man has done wrong, he should be punished, whereas if he has done no wrong, it would be unjust to punish him. The two are inextricably linked and if the former is repudiated, any aversion to the latter is illogical; it would be in Lewis’s words, ‘a hang-over from the Retributive theory’.
Even if rehabilitation and deterrence do not justify punishing the innocent, they certainly permit punishments that exceed what would be just, based on retribution. A criminal may be subject to compulsory rehabilitation until he is rehabilitated, however long that may take; consider for instance, the use of indeterminate sentences in England & Wales. Additionally, a crime that is becoming particularly prevalent may be subject to extremely harsh punishments, in order to deter potential criminals and bring down the crime rate to an acceptable level.
Lewis views rehabilitation and deterrence as not being part of the concept of justice; the only ‘just’ basis for punishing a criminal in his view, is retribution (I concur; this does not mean that rehabilitation and deterrence should be ignored entirely but the justification for them is pragmatic). The only comprehensive philosophical theory I am aware of, that attempts to formulate a concept of justice that would preclude retribution, is utilitarianism, which I have critiqued in the above article.
Once one accepts the basis of retribution, then it is difficult to impose an a priori prohibition on the type of punishment that should be imposed in response to any given crime; what is commensurate and just, depends on all of the circumstances (ultimately there can be no scientifically correct punishment, but one can apply jurisprudence and moral philosophy and arrive at a punishment, that is not simply arbitrary). Why should a prison sentence, with the conditions that prevail in a modern prison, be the most severe punishment that can ever be imposed on a criminal, irrespective of the crime?
Proponents of ‘Human Rights’, would argue that every human being ipso facto, has a minimum amount of dignity that cannot be violated; certain punishments would violate such dignity and so cannot be justified, irrespective of the crime committed.
‘Dignity’ simply means, ‘worthy of respect’. The argument based on inherent human dignity is circular; one cannot subject a human being to certain treatment because it violates their dignity; all human beings are worthy of a minimum level of respect, by virtue of being human (“the dignity principle”). It is difficult to justify the dignity principle, without recourse to theology.
Furthermore, why does imposing whatever punishment is commensurate, violate the criminal’s dignity? The punishment is not based on a denial of their humanity; indeed, aside from the French in the Middle Ages, no-one has suggested that non-human animals should be tried and punished for their actions, as they do not have moral agency. The criminal’s humanity is acknowledged by accepting their moral agency and by only imposing whatever punishment is commensurate, no more, no less.
The Application of the dignity principle seems somewhat arbitrary. Prima facie, a prison sentence infringes one’s human right to liberty. Apparently, this can be justified, but infringement of the right to life or certain other rights, can never justified. I can understand the right to life being given primacy over the other rights, but why is the right not to be tortured inviolable and the right to liberty qualified? In any event, is the deprivation of liberty not torturous – would one rather be deprived of liberty for 5 years or subjected to a flogging?
This question is posed by Peter Moskos in his book ‘In Defence of Flogging’. Moskos only advocates flogging, where the criminal chooses this punishment over incarceration. It becomes more difficult to argue against flogging based on human rights, if a criminal expresses a preference for this punishment over prison.
Moskos puts forward powerful pragmatic arguments in favour of flogging, namely the problem of prison overcrowding, prisoner welfare and the inherent problems in safeguarding this, and the immense cost of prisons.
In conclusion, the human rights argument against corporal punishment, is vulnerable on three fronts; firstly, the justification for retribution, which once accepted, makes any a priori limit on punishment, arbitrary. Secondly, the arbitrary hierarchy of human rights and the arbitrary parameters that purport to allow or disallow certain infringements on human rights (this argument is more powerful on the issue of corporal punishment, where a criminal elects to be flogged rather than imprisoned). Thirdly, the pragmatic arguments relating to cost, overcrowding and the inherent dangers of prisons. The third argument can be put forward, irrespective of one’s view on retribution or overall philosophy on crime and punishment.
I have heard objections to capital punishment, based not on the rights of the criminal but on supposed moral standards, for example that corporal punishment is cruel or barbaric. However, these are just adjectives, not arguments.
 See article 3 ECHR – prohibition on torture and Tryer v UK (5856/72), where birching was held to contravene article 3
 2011 ‘Basic Books’ The author addresses the minutiae, e.g. the medical supervision, the equipment to be used, the physical position the criminal would be in during the flogging and who would witness it.
 P 140. One can make the same argument in favour of community service, however I suspect that corporal punishment would be cheaper. In any event, this does not address the scenario where the criminal prefers flogging over a lengthy community sentence. Nor does it address the argument, that the prohibition on corporal punishment is arbitrary.