A Hegelian Theory of Retribution

Daniel Farnham

A city is maintained by proportionate reciprocity. People seek to return either evil for evil, since otherwise (their condition) seems to be slavery, or good for good, since otherwise there is no exchange: and they are maintained (in an association) by exchange. Aristotle1

In this article, I will defend a Hegelian view of retribution found in Jean Hamptons later work. Hampton called her theory an expressive theory of retribution,2 but I believe that is somewhat misleading. While what punishment expresses is important in her view, there is also a sense in which punishment does something: it recties a proper relation between people that has been violated. When this element of her view is brought forward, a coherent and defensible retributivist theory emerges. In the rst section, I show why contemporary retributivists like Hampton have been drawn to an expressive view of retribution, and the worries a strictly expressive view engenders. In the second section, I explain Hamptons later version of retributivism and show how she equivocates between an epistemological version focused on the idea of giving evidence and a metaphysical version focused on the relation created between wrongdoer and wronged. The epistemological version is susceptible to serious criticisms that do not apply to the metaphysical version. In the third section, I develop the metaphysical interpretation along Hegelian lines and clarify Hamptons ideas of acknowledgement and realization of value. In the nal section, I explain how retribution realizes equality between wrongdoer and wronged.3 1. Expressivism and Retribution It seems clear that at least part of the purpose of punishment is to express condemnation for a wrongful act. Because acts of expression can be about past actions or states of affairs, retributivists have been attracted to an expressive view of punishment. But retributivism and an expressive view of punishment do not necessarily go together. For instance, on Joel Feinbergs expressive theory, the purposes of punishment as a public act are to (i) authoritatively condemn wrongful acts, (ii) express symbolic non-aquiescence with their performance, (iii) reafrm and reestablish the law, (iv) supplement compensation for harms in the form of punitive damages, and (v) absolve others of responsibility for wrongdoing.4 On this picture, a crime calling for punishment is an offense against a community of
JOURNAL of SOCIAL PHILOSOPHY, Vol. 39 No. 4, Winter 2008, 606624. Copyright the Author. Journal Compilation 2008 Wiley Periodicals, Inc.

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people, and punishment is the communitys response to that individual. The communitys expression of condemnation constitutes a stigmatization of the offender.5 When a job applicant indicates that he has committed a felony, the employer knows to view him in a different light. Clearly, a person can be stigmatized without undergoing punishment made to t his particular criminal act. If the purpose of punishment is expressive, one might insist that retribution understood as proportional punishment is unnecessary. There are other objections to retributive theories, often stemming from concerns about the consequences of retributive punishments for either the person punished or the punisher. I think these objections get their power from two sources. The rst is our sense that proper human action has some purpose that has good-making qualities. Pain and harm are not obviously good-making qualities. So what good is there in bringing about an evil?6 Second, opponents of retribution tend to present the issue from the perspective of a benevolent, impartial spectator, considering the point of having a policy of retribution rather than examining the point of retribution in particular cases.7 By contrast, retributivists are fond of presenting particular, heinous cases of wrongdoing that call forward retributive intuitions in even dedicated non-retributivists.8 Much of this debate appears to turn on how much justicatory force these intuitions about particular cases have. Opponents of retribution have not been satised with what they regard as appeals to suspect intuitions that bad treatment deserves bad treatment in return. They typically want an explanation of what good purpose the institution of such a rule could serve. For instance, if we take something like the view of benevolent, impartial spectator, it is hard to see what good could be achieved by retributive punishment. It is by denition the iniction of a harm on some person. Furthermore, from this perspective insisting on the intuitive justice of retributive punishment in particular cases looks like an appeal to subjective feelings a person may or may not have toward being wronged: it leaves aside questions about whether and how those feelings are justied. Even the more general theoretical assertion that retribution is a fundamental feature of justice tied to desert can seem questionbegging when considered from this perspective. Why, a benevolent spectator might ask, is retribution, or the notion of desert it involves, necessarily a fundamental feature of justice?9 In her later work, Jean Hampton argued that the good retribution achieves is the expression of equality between victim and violator.10 On her view retribution is a response to the wrongdoers assertion that he is of greater value than the victim, such that he may treat the victim in certain ways. Retribution addresses this wrongdoing by bringing low the wrongdoer.11 Hamptons aim was to give a general account of the concept of retribution that t her broadly Kantian theory of value and analysis of wrongdoing.12 But by calling the view expressivist, she invited a number of objections that exploit the conceptual distance between punishment as an expression and punishment as proportional treatment. If wrongdoing lies in what a person says about his victim through his action, perhaps all that justice demands is that this statement be effectively repudiated.13

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There is another interpretation of Hamptons retributivism that avoids this sort of problem. This interpretation focuses on Hamptons concept of moral injury and its related notions of realization and acknowledgement of a persons value. These elements of Hamptons view are Hegelian, recalling his philosophy of giving the concept of abstract right a concrete realization in the world.14 On this understanding of Hamptons view, some expressive acts do not just say something, they make something the case. By distinguishing this element of the theory and the kinds of expressive acts that are relevant, we uncover a compelling version of retributivism. 2. An Ambiguity in Hamptons Account Hampton developed what she called an expressive theory of retribution by focusing on what is distinctive about wrongful action. Her idea was that wrongful action expresses a message about the relative superiority of the wrongdoer to the victim, and that retribution effectively expressed the denial of that message, afrming the equality of both wrongdoer and victim. But by framing her account as expressivist, she invited objections that understand the expressive character of the wrongdoing as primarily a kind of saying, or claim about some reality. In her elaboration of the account, she tried to respond to this sort of objection by clarifying the nature of the expression involved, which she understood to be more than just a saying. The problem is that she left herself open to two different interpretations of the expressive character of wrongdoingone epistemological, and one metaphysical. Only the second succeeds at capturing the nature of wrongdoing; the rst is subject to criticisms related to the general criticisms of expressive accounts. The distinction between harm and wrong is central to Hamptons account. Hampton denes a harm as a disruption of or interference in a persons wellbeing, including damage to that persons body, psychological state, capacities to function, life plans, or resources over which we take the person to have an entitlement.15 People can suffer harms as the result of natural disasters or unintentional acts of others. But these do not involve wrongs. We recognize this in the difference between tort law, which focuses on compensating harms, and criminal law, which addresses wrongs. A wrong, on Hamptons analysis, consists in treatment that represents the wrongdoer as being of greater worth than the victim.16 A kidnapper not only causes harm to his victim, his action expresses the idea that his victim can be put to use for his own ends, like a tool that has value only in relation to his or someone elses ends. There are different ways to understand expression, however, and not all will t the retributivist purpose of punishing people in proportion to their offense. It cannot be that a person merely says that other people are worth less than him, for instance.17 Even if we think that sort of thing is wrong, we do not think of it as the sort of action that demands anything like a punitive response. Hampton was concerned with meeting this demand, but she was unclear about how exactly her

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view should go. In some places she explained the expressive function of wrongdoing as providing evidence of the victims inferior value relative to the wrongdoer.18 At other points, she explains the expressive function of wrongdoing as making certain things the case.19 There is a distinction here that Hampton did not make. One is an epistemological interpretation of wrongdoing and the other is metaphysical. On the epistemological interpretation, a wrongful act differs from the mere expression of a morally offensive view in that it provides evidence that the claim it asserts is true. A wrongful act may convince people of the superiority in value of the violator to the victim. The other interpretation is metaphysical. On this interpretation there are truths about what value people haveand so facts in this abstract sensebut these truths are best understood as ideals that need to be put into effect in the world to have their full measure of reality. The truth is not enough. What must happen, as a practical and moral matter, is that the truth be realized in the world we live in. According to the metaphysical interpretation, wrongful action interferes with this realization of value. The epistemological interpretation founders on some important objections, but the metaphysical version does not. The Epistemological Interpretation On the epistemological interpretation of Hamptons view, wrongful action provides evidence that the victim is inferior to the wrongdoer. Consider the difference between saying that women are not equal to men and actively treating women as inferior. Just making such an assertion does not, of course, provide any evidence for it. But actually treating women in an inferior way can do this. We have an often unfortunate propensity to draw conclusions about what to do from what we see other people doing. Bad treatment may not be good evidence of worth, of course, but the fact is that people always have read certain conclusions off of how people behave with respect to one another, and this will not stop any time soon. And insofar as people are generally susceptible to this effect, we might think that providing even bad evidence for anothers inferiority is a way of wronging them. But this epistemological understanding of wrongness leads to a serious criticism.20 If what makes for wrongful action is what it says about the relative value of violator and victim, why isnt a sufcient response to such action simply to deny what has been asserted?21 Even if we add to this the idea that wrongful action is not saying the victim is inferior, but providing evidence of the victims inferiority, why isnt it enough to point out that the action in question does not provide evidence of inferiority?22 When I hear my neighbor screaming at her nine-year-old son in the middle of the night, I just think she is an ass. Vile actions really just show that their perpetrators are vile, once the observer has moved beyond the crudest sort of reasoning. On this view there is no need to punish anyone; we just need to be clear about what is good evidence and what is not. But there is more involved in wrongdoing than just giving evidence. In giving evidence, we appeal to various events or states of affairs that can be considered as

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instances of a claimed fact, or causally related to a claimed fact. One could (try to) give evidence of a persons inferiority by pointing out that he has been beaten, or does not stand up to otherswithout actually going and beating the person. An assailant is not primarily trying to make a point about the value of his victim although he does have a view about this, and his action expresses it. Someone who steals a book from a library is not primarily giving evidence for the relative importance of her interests and unimportance of othersthough her action expresses a view about that also. Instead, the assailant and the book thief make it the case that their victims interests in being publicly recognized as equals and affecting the world and people in it are violated in favor of the realization of their own interests. The evidential version does not do justice to the role of action in the world. In acting, we make the world to be a certain way, and we do this so as to realize some ideas or ideals. We care about this sort of action in a way that we do not care about theoretical disputes about human worth. This public reality is the subject of Hamptons theory of moral injury. On her view, a moral injury consists in damage to the realization of the victims value, or damage to the acknowledgement of the victims value, accomplished through behavior whose meaning is such that the victim is diminished in value.23 A person who has been wronged has not just had false things about her expressed, she has been injured. To see the nature of this moral injury, we must look to a Hegelian account of wrongdoing. The Hegelian Interpretation Wrongful action has communicative and consequential effects, but it also creates a situation where one person is inferior to another in the way he or she is treated. A proper response to such action is not just to deny what it asserts or to avert future bad consequences, but also to rectify this imbalance. This is the Hegelian interpretation of wrongful actionit invokes Hegels idea of the need to give our abstract ideas (such as autonomy or right) concrete expression through the use of social conventions that mediate our lives together.24 We need to do this because we are not primarily debaters about what is true, we are primarily embodied agents living in a world together, our activities coordinated by conventions. Our ultimate purpose is not to know what the world is like, but to do and create and to know ourselves as doers and creators. Hamptons ideas of realization of value and acknowledgement of value are best understood on the Hegelian model of an ideal to be realized concretely and publicly in the world of human action. It is never true that the victim has less value than others, but in cases of wrongful action the victims value is not realized or acknowledged. The fact that we are embodied, and live in a world where external forces and other embodied agents can physically inuence what we do, means that the realization of our value in this world is not solely up to us. That we live with others and care about how they regard us means that the acknowledgement of our value is not up to us. Damage to the realization and acknowledgement of a

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persons value are what Hampton calls diminishment.25 To see better what she meant by this, we need to look more closely at the notions of realization and acknowledgement. 3. Acknowledgement, Realization, and Wrong We are engaged in a project of making a world for us to live in. This project has two main elements. One is essentially material: the activities we engage in change or rearrange resources people have at their disposal to live their lives as they see t. In a modern liberal state, the bulk of this construction of a shared material world takes place through market interactions, with some needs being addressed through governmental channels. But humans are essentially social beings, and a world or home for them is not just one that provides basic necessities for carrying out projects. It is also one where mutual relations of acknowledgement exist. By acknowledgement, I mean being known to others as an agent who has equal standing and his or her own life to live, along with the knowledge that others know and honor this. It is one thing to know the truth about ones value as a person, another for other people to know the truth about your value, and yet another to know that others publicly acknowledge that truth through what they do and say. Imagine a slave consoling herself with the fact that her violators hold false views about her worth. Or, imagine her consoling herself with the thought that they do know her value as a human being, but do not act on that knowledge. We do not just care about knowing the truth that we are valuable, we want others to know this too, and we want this knowledge to be recognized publicly. We want to be able to act on this understanding, and for other people to act on it also. The person who simply tries to be consoled with the mere knowledge that she is valuable does not realize her telos as an agent, to act and to have her contributions and autonomy acknowledged by others. One might think I am overstating the need for acknowledgement. Feeling acknowledged or at home in the world is not something that normal, non-neurotic adults worry about a lot. While that may be true, I do not think it shows very much. Not worrying about acknowledgement may only show that a person already feels sufciently acknowledged. And a person need not feel palpable anxiety in order to sense that she is not being acknowledged. Members of groups who have endured discrimination frequently have a robust awareness of this. The way in which the United States has historically been a home for well-off males of Anglo-Saxon descent is quite different from how it has been for women, the poor, or members of various ethnic groups. Many people in our society feel the effects of these sorts of conventions, and to that extent the world does not seem fully a home for them. Acknowledgement is always in question. We are not transparent to each other. People and conditions change. Promises and contracts are not absolute guarantees, and we know this. What began as a wonderful marriage can over time turn into an exploitative relationship. The civil relations that obtain between good neighbors or

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happy coworkers do not survive lack of attention. And a sense of common citizenship with others is undermined when the interests of certain groups are neglected, while others are actively promoted. In good conditions and among people of good character, their mutual understanding and condence will help build a robust sense of being at home with one another. But when conditions are bad (e.g., when substantial sacrices must be made), or when one or more of the parties recognition of the equality of the other is weak, these relationships can unravel with alarming ease. Whether perceived or real, slights that go unaddressed or uncorrected can undermine the sense of mutual acknowledgment. Failures to acknowledge are wrongs, and they call for apologies. In the case of more direct harm a wrongdoer damages not only the acknowledgement of a person, but also the realization of that persons value. This consists in the interference with that persons ability to do things in the world with what is rightfully his. A persons value is realized when she achieves some good through her own activity, which expresses her particular understanding of value. The good achieved can be external to the activity, as in the production of some material object or state of affairs (e.g., a sculpture, a text, or a well-organized dinner party) or it can be internal to the activity, as in dancing, playing music, or having a meaningful conversation.26 In either case, one puts into action and embodiment what one wills, makes it part of the public world shared by others. Through that externalization, one both knows oneself and is known by others. What Hampton calls the realization of a persons value is a person actually creating herself, creating her identity among people as the person who does or has done such-and-such a thing.27 The central task of being human is to construct a life for oneself. In doing so, one realizes ones value as a person, takes the capacities that are special to persons, and makes something out of them that achieves recognition. Both the ability to create (to realize ones value) and to achieve recognition (acknowledgement) are not entirely up to us. A slave has so much control taken over her life taken away that it is not really her own. She is prevented from realizing her value, prevented from acting in ways that externalize her own will as part of the world. To see the difference between realization and acknowledgement, consider someone who is not enslaved and so does not encounter the direct sorts of constraints on her action that slavery involves, but is otherwise either ignored or reviled. This person is not prevented from externalizing her will, but is prevented from knowing that others regard her as valuable: their leaving her alone may be out of contempt rather than respect for her rights as a person. If others response to her is purely negative in the sense of not directly interfering in her actionas opposed to supporting, encouraging, or engaging with it in some wayshe will not be able to know herself as contributing to something beyond her particular existence.28 A slave suffers both forms of diminishment, since she is not regarded as an equal. The most obvious instances of damage to realization involve bodily assault: a persons body is his fundamental means of doing thing in the world for which he can be acknowledged by others and even himself. But damage to realization can

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also involve unjust appropriations of property. A persons property is those elements of the world over which he rightfully has control and which he needs in order to carry out meaningful projects and relationships with others.29 When a persons body or property has been interfered with, that person has effectively been used, or mastered, by the wrongdoer. There is of course the physical harm to the body or the loss of resources involved, but more importantly there is the objective meaning of this direct interference with a person as an embodied agent. This sort of direct interference involves a personal relationship of master to mastered between two (or more) people. There are private and public dimensions to such action. The thiefs action by itself makes his interests count for more than his victims interests. That is a private, relational feature between the two parties that supervenes on the conventions expressing these relations. Because the victim is directly affected by the action, he or she now stands in a special relation to the wrongdoer. As a public matter, the thiefs action also conveys that just as it is for him to decide how this persons property will be disposed, it is also for him to decide how other peoples property will be disposed. He is not just above a particular individuals claim to property, he is above the public rules in place regarding property. And to that extent he places himself above us all. The rule making it anothers possession did not count for him against his desire to take it, so he would not recognize in principle any other persons objecting to his taking on that basis, if it suited him to do so. Hampton argues that this elevation of one person with respect to another is an objective phenomenon, part of our social world.30 Regardless of whether a wrongdoer has the conscious thought that he or she is superior to those wronged, that is what his action expresses. Consider her example of the person who sneaks a book out of the library without checking it out.31 There is no reason to suppose that this person has the conscious thought that she is superior to other people. She may just not want to be bothered with a due date, she may not want anyone to see what book she is interested in, or she may just be painfully shy. Nevertheless, her action does have an objective meaning beyond how she conceives of it. She is saying that she can forego the sorts of rules and restraints that other people must abide by: her interests are a sufcient reason for these rules to be overridden in her case. But that is just to say that she is superior to other people: her interests have a special status that others do not. In addition, her act of taking the book without checking it out makes it the case that her interests are placed above those of others. It is characteristic of what we think are punishable wrongs that there is a direct and intentional interference with the will of the person wronged, unmediated by relations with other persons wills. In cases of defamation, a persons realization or acknowledgement is inhibited or damaged only if other people take up the judgment that the wrongdoer has expressed. The offender has expressed the view that his victim is to be regarded as lesser, perhaps with the intention that the victim thereby suffers from a lack of realization, but he has not damaged that

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realization directly. There is an implicit public appealthe offender is proposing that others take up his or her judgment and deny acknowledgement or realization to his victim. To that extent, the offender does not single himself out as having the status to determine someone elses fate independently of a larger community. He is not putting himself above the community as a whole, but rather proposing that the community put themselves above the target of his criticism.32 By contrast, in cases involving a persons control over her body or her property there is direct damage done to a persons realization and acknowledgement which neither appeals to nor depends on the public afrming the negative. The direct damage to realization is clear; but note also that there is a distinct, direct kind of damage to acknowledgement. The most basic level of acknowledgment would be the recognition that another person, her activity, and her property are not to be treated as material one may use, and the wrongdoer denies even this sort of acknowledgement to his victim. He arrogates to himself the authority to interfere with the realization of a persons value, and to effectively declare that the person is not even a member of the human community. The directness of the act against the victim entails the disregard of both the victims status as one who has a right to control what is hers and of other peoples status as having some legitimate say in how people are to conduct themselves with one another. The distinction between realization and acknowledgement is signicant in suggesting where punishment is appropriate. As a form of hard treatment that goes beyond communicating a message to the offender, the victim, and society as a whole, it is warranted only in cases where the wrongdoing involves a direct interference with realization, as opposed to the more indirect and expressive denial of acknowledgement. Hamptons focus on giving a general account of wrongdoing and retribution as a response to it led her to neglect this distinction, and opened the door for critics to give counterexamples of cases where we might not think punishment is appropriate. But in these counterexamples direct interference with realization is not at stake, only denial of acknowledgement.33 If we insist that punishment (considered as proportional hard treatment) is appropriate only in those cases where there is damage to both acknowledgement and realization of peoples value, we avoid these complaints. People should be subjected to public condemnation for defaming others, and they should apologize, but they should not be imprisoned or put on a chain gang. People who intentionally harm others or steal from them should be subject to proportional treatment. When we see what Hampton means by the objective character of wrongdoing, two things come to light. First, commentators who have objected to Hamptons account of wrongdoing on the basis that a wrongdoer need not think of himself as superior to his victim have missed the point.34 The problem lies in what Kant would call the form of the persons maxim, not their explicit conception of themselves or others. A maxim of action is a characteristic policy that actually explains a persons action and its nature, and it should be obvious that people can fail to know their own character, policies, or even what they are doing. What matters is not what the agent thinks his act expresses or achieves, but what it does

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in fact express or achieve, given the conventions in place. The objective character of the wrongdoing is an intersubjective state of affairs in our social world. A related objection is that there are a variety of motives and intentions involved in wrongdoing, and that Hamptons effort to account for all of these in terms of diminishment imposes a spurious unity on an essentially diverse range of phenomena.35 The claim is that such actions as not paying taxes, defrauding a business rival, or liberating snails from an escargot factory, while they may involve a violation of rights, need not express an attitude of superiority over others. But I think when we accept the fact that what our actions mean is not just a function of our attitudes, there is a common core in these supposedly diverse cases. In each case, the wrongdoer effectively arrogates to himself or herself as an individual the authority to affect the world without consideration of the will of others. One might worry about diminishment being a function of conventions. If the problem is that some convention conveys inferiority, then perhaps the solution is to teach people to overcome the convention.36 But I think this would be to underestimate the depth of the conventions involved in wrongdoing and the moral injury it involves. Here are some examples of wrongful behavior. Is their wrongness due to their nature, or is it merely a conventional matter? A man rapes a woman. A man kills a convenience store clerk in the course of a robbery. A terrorist kidnaps several people and holds them hostage in order to gain a bargaining advantage. A policeman tortures a member of a group opposed to the current governments policies in order to get more information. A con man swindles an old couple out of their retirement money. Each of these acts expresses the idea that the wrongdoer is somehow superior to the victim, such that he can use the victim to his ends. If we interpret the meanings of these sorts of cases on Grices distinction between natural and conventional, then it will appear that the behavioral meaning involved here is conventional, since Grices examples of natural meaning are things like smoke means re.37 But if they are conventional, they involve conventions so deep that they are constitutive of human society, and may be regarded as natural in that sense. To see this, try to imagine a human society in which rape, killing, kidnapping, torture, and fraud are not deeply offensive in the way we suppose them to be. I think this is hard to imagine. There may be a strictly biological sense of what is human, but that is not the one most of us use in ordinary life. In that sense of the humanthe one we use when we say Thats inhuman! or He is a real human being!the behavioral meaning of these acts is natural.38 4. What Retribution Achieves At the beginning of the article I suggested that many of the objections to retributivism stem from taking the perspective of an impartial, benevolent observer. From that perspective, it is mysterious what the point of doing some harm to a person could be. After all, the impartial observer is not affected by the

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past wrongdoing, and does not identify with anyone who is. The observer does not have to face going on in the world having suffered a specic moral injury at the hands of another. Whatever disvalue there is in being diminished in Hamptons sense is not something that the impartial spectator has access to. In theorizing about moral questions it is easy unwittingly to adopt something like this perspective. But the perspective of an impartial, benevolent observer is not necessarily the perspective that we should take on wrongdoing. Another way to look at wrongdoing is to think of it as part of our lives together as agents who need acknowledgement from one another, whose anticipation of the future is informed by our past, and who are susceptible to the effects of wrongdoing. From this sort of perspective, retribution is better understood as part of what Thomas Hill has called a cross-temporal whole, a relation that exists between people in the way their lives together unfold from past through present and into the future.39 In this section, I show how a policy of retribution can effect both acknowledgement and realization of value, correcting the relationship between wrongdoer and victim so as to allow them to go on as equals. Hill suggests a four-part framework for assessing our responses to past wrongdoing. First, he argues that many of our valuesin particular those involving our relations with other peopleare cross-temporal. For instance, it is hard to understand the value of a particular friend to me without considering our past, present, and prospective future together. Second, many of our evaluative concepts are narrative in form. We think of our lives as having signicant beginnings, crises, turning points, dramatic tension, character development, climaxes, resolutions, comic interludes, tragic disruptions, and eventually tting (or untting) endings.40 Third, evaluation must take into account ones particular historical context, including ones cultural, national, and ethnic traditions, and the actual individuals in ones life. Fourth, the most important element of evaluation is the whole of which individual actions are a part.41 Now consider how these aspects bear on a situation where a person wrongs another. As I argued in the last section, the act of wronging another person creates a private relationship between wrongdoer and wronged. Unlike the exchange of marriage vows, where this relationship is entered into by both parties with the commitment of treating one another equally in the special ways that relationship demands, this relationship is established by one person using another for his or her own ends. Deliberately or not, the wrongdoer has chosen a particular person as his victim and used that person in some way.42 As an intentional act, it has meaning that projects beyond the occasion. The wrongdoer has mastered or used his victim, and this fact is now part of their stories and a proper understanding of their relation to each other. While the wrongdoer may be indifferent to the relation he has established with a particular victim (such indifference may be part of the explanation of his wrongdoing), the victim will typically think that he or she has been used by the other, put beneath him. Insofar as the wrongdoer has succeeded in using his victims body or property, that is exactly what has happened: the victims typical response is not just a psychological tendency, but rather a correct

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apprehension of the distorted relationship that has been created. A marriage vow projects into the future a relationship of equality between two individuals: the parties each know themselves as the person to whom the other person has made a deep, public commitment, one in which their regard for each other as equals is at the forefront. An act of wrongdoing projects into the future a relationship of inequality between two individuals: the victims will is no part of this, he has been treated as not having a will with any claim to how matters are to be conducted.43 Each of these cases involves not just something that is said, but also something that is done: the establishing of a relation between two individuals that informs an understanding of how their lives will go on together. The mastery relation given concrete expression in the world is not undone by saying that it does not or ought not to obtain. Telling the slave owner that his claim of superiority is morally invalid does not change the fact of his mastery. Neither is it undone by escape or removal. Should the escaped slave fall into the hands of his master again, he could expect the same treatment. That fact itself shapes his experience of the world as a place where he is under threat of the same thing recurring. Insofar as the past involves meaningful relations between beings who understand themselves and their relationships as cross-temporal wholes, it is carried with us as we move forward into the future. It shapes our understandings of what we may expect of ourselves and from one another. Retribution cannot make it the case that a past event has not happened, but it can cancel the projection that event makes into the future between people. The wrong is not fully remedied by an individual carrying out retribution by himself. If a victim succeeds in defeating his attacker, he may add to the fact of having been mastered the fact of having mastered in return, but the change in relation will not be toward acknowledgment but toward ongoing war. One thing that Hobbes did get right is that the state of peace and its associated sense of being at home in the world is not something a person can bring about through his own effortsit requires a public authority with jurisdiction over all the parties residing within a territory. We need this public recognition of the change in a private relation because we live together. This feature is easily neglected when we think of stories where individuals take retribution into their own hands. Consider the end of Martin Scorseses movie, The Departed.44 Colin Sullivan, who has conspired to kill several people but has evaded police attention and successfully framed another person, arrives at his apartment to nd Sean Dignam, a friend of his victims, there to execute him. Sullivan recognizes the justice of this, sighs, and says OK, before Dignam shoots him. Many people nd this a morally satisfying ending, and it would appear to be a case where retribution is effectively realized by an individual. But the example is deceptive, because the movie is a detailed, public account of the dispute between the two parties of the sort we would get in a court case. If we nd satisfaction in the result, it is only because we are standing in for a judge or jury. In real cases of individual retribution there is no such accounting: even if an individual has a good case for why his assailant should be punished, the public meaning of his acting on his own is not one of punishment but of ongoing war.

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Where no public action is taken against a wrongdoer, it doubles the threat his action projects: First, the wrongdoer conveys and realizes his disregard for his victims will, then the public does so also through knowing inaction. A lack of retributive action both conveys and realizes indifference in a case where acknowledgment requires an active response. Public retribution, on the other hand, can correct mastery relation. In criminal wrongdoing, the parties involved are known and can be addressed directly. A response to the act of wrongdoing can and should address these people as individuals and the specic ways in which the wrong has been effected. Publicly excoriating the wrongdoer and exalting the victim will not do this. It would be like saying, Well, youve mastered that person, and that person has been mastered by you, and we just want to say that we think its bad and your victim deserves better. Thats taking the unengaged perspective of a spectator who has no direct responsibilities to the people concerned. In contrast, a proper vindication of the victim will work not merely to state the victims value, but also to realize it in the social milieu.45 In the same way that wrongful action is not just an expression of the victims lesser value, but also a realization of it as lower relative to the wrongdoer who effects this realization, punishment should be a realization by a moral authority of the victims value as equal to the wrongdoer, correcting the relation of inequality that has been established. Placing the focus on the relation between wrongdoer and wronged has some interesting implications for our practices of criminal punishment. First, and most obviously, it implies that no criminal punishment is justied in cases where the claimed harm comes to a person himself. If someone effectively disrespects himself by treating himself badly, say by abusing drugs or trying to commit suicide, nothing is achieved by punishing him. The Hegelian element of the theory is quite clear here: while under an expressive theory of punishment there is no incoherence in punishing drug usesince a political society might strongly condemn drug use and use punishment to express thison this Hegelian theory criminal punishment for drug use makes no sense. There is no relation between two people that needs correction. Second, the theory implies limits on what may be done to a criminal: no action may be taken against him that is harsher than his own offense. People may not be put to death for anything less than murder, if they may be put to death at all. There should not be long sentences for relatively minor cases of theft, especially those that do not involve other violations of persons (assault) or their security (breaking and entering). Third, we should prefer punishments that match the character of the crime, where these are practically and morally available. For instance, we should prefer shorter sentences involving hard labor to longer sentences involving no labor for cases where peoples labor has been exploited, as in cases of theft. Fourth, in some cases this retributivism will call for harsher penalties than are common. Many argued that Jeffrey Skillings sentence for defrauding Enron investors (twenty-four years in prison) was excessive, because it effectively constituted a life sentence and seemed more than what deterrence would require. It is not excessive at all when we focus on the nature of

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Skillings crime. He and the other Enron defendants cheated many people out of their life savings. He took all the fruits of their labor that they had saved to provide for a better future for themselves and their loved ones. A long prison term may be a ham-handed way of trying to rectify this, but italong with seizing whatever assets of his we canis probably the closest thing we can get to putting him in the situation he has put other people into, lowering him as he has lowered others. I have focused on the private aspects of retribution and how these realize the parties value in relation to one another. But retribution is also a public act, and this is where its expressive aspect is located. Consider the messages that might be sent by different policies for punishment. Suppose we adopted a pure deterrence view of punishment. What would the message of such a policy be? We seek to dissuade you and others from harming people. The sentence we give you will be proportionate to what we think is necessary to deter other people from committing crimes such as the one you have committed. On this conception, the message is quite general, and the response is not to the specic nature of the wrongdoing, or even to the individual wrongdoer, but rather based on a statistical assessment of what it would take to deter other people from doing the sort of thing a person has done. The message to the violator is, We regard you as an instance of a general problem in our society that we are trying to inoculate against by tweaking incentives. Our response to your wrongdoing has more to do with our assessment of what is needed to provide those incentives, than of anything having to do with your specic actions. What is the message to the person wronged? Well, you have unfortunately been stricken by this general problem we have in our society; we promise you that we will do whatever we can to discourage this sort of behavior, so that you and others will not suffer this fate in the future. On this view of punishment, I think both parties here might justly complain that their status as particular individuals with a particular history is not being acknowledged, and that the damage to realization in the relationship has not been addressed. Now suppose our scheme of punishment has a central retributive element which states that the punishment should in some way t the crime, so as to lower the wrongdoer and reestablish a proper relation between him and his victim. Hamptons way of putting what retributive punishment expresses here is What you did to her, she can do to you, where her idea is that this realizes equality between wrongdoer and wronged. We can expand this idea a bit to give more detail. In making our response to the wrongdoers action t the wrong as much as is morally permissible, we address the specic, concrete wrong that has been done, and the specic people who have been involved in it. Furthermore, we address the wrongdoer as an individual capable of making decisions about how his and others lives are to go, and responsible for the outcome of those decisions. In contrast to a consequentialist justication, a carefully considered retributive punishment addresses the wrongdoers specic will as an act of co-creating the social world we live in, but doing it in a defective and objectionable way. Critics of Hegelian accounts of retribution often deride what they see as the metaphorical idea of punishment annulling the crime. I think if we attend to the

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intersubjective reality of acknowledgement (or recognition, in Hegelian terms), we see that there is real substance behind this talk. In wrongdoing that involves both damage to acknowledgement and realization of a persons value, there is an elevation of one person above another that constitutes subjugation or mastery.46 The fact that it is direct (i.e., achieved through the wrongdoers own action) means that the mastery relation obtains immediately upon performance of the action. To say at this juncture that applying proportional hard treatment to the wrongdoer is just answering a harm with a harm, and so achieves nothing, is simply to ignore the meaning of the relationship in which the parties now stand to each other. Annulment here means not that the harm the victim undergoes is somehow magically undone, but that the relation of mastery the wrongdoer has established over his victim is undone.47 Note that the idea in this sort of case is that it is not just repudiated in the sense that there is a public announcement that this is a bad state of affairs; it is actually undone by effecting the mastery of the victim over the violator. It matters who effects the retribution, and who announces its message. In Hamptons formulation the message of retribution is What you did to her, she can do to you. So youre equal.48 The presupposition here is that the message is delivered by an impartial, moral authority. The message is not What you did to me, I can do to you. This would merely be once again the expression of a particular will in response to another, without the moral authority the impartial judge and sanctioner can provide. If the retributive response is made by a proper authority, and carefully constructed so as to reect the original will of the wrongdoer, the retributive response cannot justiably be read as another exercise of mastery along the lines of the original wrong. First, the assumption of a legitimate public authority means that the will expressed in punishment is not just the particular will of the victim for revenge, but the will of a public authority empowered to represent individuals interests and to determine (within some constraints) what is the right way for people to go on together. Second, insofar as the retributive response is carefully modeled upon the specic wrong done,49 it bears a relation to the wrongdoers will that he cannot plausibly object to as an arbitrary and particular imposition on him: the authority only seeks to do to him (roughly) what he has deemed it is appropriate for him to do to others. While in this sort of action the wrongdoer is in effect mastered, the basis for this mastery lies in his own invalid claim of mastery. Far from degrading or diminishing the wrongdoer, a well-constructed retributive response in fact honors that persons putative authority to determine how people are to be treated, even while it repudiates it. Our task is establishing and maintaining respect among people to be regarded as equals. The state is uniquely suited to do this, as the public agent of the people. Of course, this assumes the state is legitimately regarded as the public agent of the people: in a state such as Saudi Arabia, a monarchy kept in power through the use of repressive force and unjust punishment, retributive punishment expresses a different message. In such a state the message it sends does seem to be I am superior to you because I am more powerful than you. In contrast, a legitimate

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state serving as the agent of the people says to the violator, We afrm the victims equality with you, and we are going to show that equality in terms that match your treatment of her: what you can do to her, we, acting as her agent, can do to you. We all might hope for a world in which retribution were not necessary. And we might hope as individuals to become the sort of person who does not need to exact retribution. These are hopes and personal ideals that very many of us take seriously. But we do not live in that world. Until the sorts of wrong I have examined do not occur, or cease to have the weight or meaning that they do, we must cope with them. And if we are to live together as people who share a common history and present, and hope to share a common future, retribution will have to be a part of that. As Jean Hampton said in one of her more Hegelian moments,
One might say that retribution is an attempt, in the face of the reality of immorality, to recreate and restore a fully moral world on earth. Once the crime is committed, there is no way to undo the crime, but if we are able to undo what the crime symbolizes by creating an event that counters the symbolic message sent by the crime, we symbolize the correct moral relationships among human beings, and thereby create the moral reality in which we believe.50

An earlier version of this article was presented at the Georgia Philosophical Society meeting, November 2006. A number of audience members there made helpful comments, particularly Roger Wertheimer, who raised several objections and produced the example of liberating snails. Conversations with Richard Dien Wineld helped me better understand Hegels views on crime and punishment and how they are and are not related to the theory defended here. Three reviewers for this Journalone I know to be Linda Radzikalso made helpful comments which led to substantial revisions in this version. I am grateful to all. Notes
1

Aristotle, Nicomachean Ethics, trans. Terence Irwin (Indianapolis, IN: Hackett, 1985), 128, 1132b31 1133a3. 2 Jean Hampton, An Expressive Theory of Retribution, in Retributivism and Its Critics, ed. W. Cragg (Stuttgartt: Fritz Steiner Verlag, 1992), 125. 3 By retributivism in this article I mean the view that wrongdoing deserves punishment in proportion to the wrong done. A retributivist view could be monistic, asserting that retribution is the only appropriate consideration in punishing, or pluralistic, asserting that retribution is the primary consideration in punishing, though other factors such as deterrence or moral education may play a role. I only want to argue for the latter sort of view, insisting that retribution should be our primary concern in punishing, and should be the main source of guidance for sentencing. 4 Joel Feinberg, An Expressive Theory of Punishment, in Doing and Deserving (Princeton, NJ: Princeton University Press, 1970), 10105. 5 Ibid., 115. 6 This sort of perspective lies behind Deirdre Golashs insistence that there is a paradoxical symmetry involved in retribution. But there is only a paradox if one thinks that the punishment is bad in the same way that the original wrongdoing is bad. This is just what retributivists deny and attempt to explain. See her The Retributive Paradox, Analysis 54, no. 2 (1994): 73.

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See Hugo Bedaus An Abolitionists Survey of the Death Penalty in America Today, in Debating the Death Penalty: Should America Have Capital Punishment?, ed. H. Bedau and P. Cassell (New York: Oxford University Press, 2004), 1550. 8 See Louis Pojmans Why the Death Penalty is Morally Permissible, in Debating the Death Penalty: Should America Have Capital Punishment?, ed. H. Bedau and P. Cassell (New York: Oxford University Press, 2004), 5175. 9 Jerry Gaus, A Defense of Pure Retribution, in Social, Political, and Legal Philosophy, vol. 1, ed. E. Villanueva (Amsterdam: Rodopi, 2002), 33961. Gaus arguesrightly, I thinkthat concerns about retribution are essentially concerns about the notion of desert. 10 Hampton, An Expressive Theory of Retribution, 13. See also her Correcting Harms and Righting Wrongs, UCLA Law Review 39 (1992): 1686, 1695; reprinted in The Intrinsic Worth of Persons (Cambridge: Cambridge University Press, 2007), 10850. 11 Hampton qualied this idea: she argued that any acceptable bringing low of the offender had to be consistent with treating him with respect as a human being. See Hampton, Correcting Harms, 1691. 12 Hampton, An Expressive Theory of Retribution, 2. For Hamptons theory of value, see Selessness and Loss of Self, Social Philosophy and Policy 10, no. 1 (1993): 13565; reprinted in Intrinsic Worth, 3971. For her analysis of wrongdoing, see Mens Rea, Social Philosophy and Policy 7, no. 2 (1990): 128; reprinted in Intrinsic Worth, 72107. 13 David Dolinko, Some Thoughts about Retributivism, Ethics 101, no. 3 (1991): 551. 14 By contrast with the right which is comparatively formal (i.e., abstract) and so comparatively restricted, a higher right belongs to the sphere and stage of mind in which mind has determined and actualized within itself the further moments contained in the idea; and it belongs to this sphere as the sphere which is concreter, intrinsically richer and more genuinely universal. See G. W. F. Hegel, The Philosophy of Right, trans. T. M. Knox (Oxford: Oxford University Press, 1967), 3334, para. 30. See his discussion in paragraphs 430 for his view that a will that does not actualize itself by determining itself in acting on the world is no will at all. 15 Hampton, Correcting Harms, 1662. 16 Ibid., 1677; and Hampton, An Expressive Theory of Retribution, 6. 17 Dolinko, Some Thoughts, 551. 18 Jean Hampton, A New Theory of Retribution, in Liability and Responsibility: Essays in Law and Morals, ed. R. G. Frey and C. Morris (Cambridge: Cambridge Studies in Philosophy and Law, 1991), 39092; Hampton, An Expressive Theory of Retribution, 1213; and Hampton, Correcting Harms, 1676, 1678. 19 Hampton, Correcting Harms, 1680, 1684, 1686. 20 See Heather Gert, Michael Hand, and Linda Radzik, Hampton on the Expressive Power of Punishment, Journal of Social Philosophy 35, no. 1 (2004): 7990. 21 Dolinko, Some Thoughts, 551. 22 Gert, Hand, and Radzik, Hampton on the Expressive Power, 84. R. A. Duff makes a similar criticism in his Justice, Mercy, and Forgiveness, Criminal Justice Ethics 9, no. 2 (1990): 55. 23 Hampton, Correcting Harms, 1679. 24 G. W. F. Hegel, Phenomenology of Spirit, trans. A. V. Miller (Oxford: Oxford University Press, 1977), 298: It is therefore through culture that the individual acquires standing and actuality [. . .]. 25 Hampton, Correcting Harms, 1673. At times she characterizes diminishment as the appearance of degradation of value. I think that is an unfortunate echo of the epistemological version of her view, since appearance is typically contrasted with reality. But on her view, wrongdoing has the kind of intersubjective reality I discuss in section 1. 26 This is one of Hegels central ideas, found in various sections of the Phenomenology (e.g., 21152) and the Philosophy of Right (e.g., 3034). The general picture is put more succinctlythough given a materialist spin focusing on activities of production that Hegel and many others would rejectin Karl Marxs Alienated Labor, in Karl Marx: Selected Writings, ed. D. McLellan (Oxford: Oxford University Press, 1977), 7787.

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Hampton discussed this idea in Selessness in Loss of Self, where she argues both that a person can fail to have a self and that a deliberate failure to do so is immoral. For other contemporary discussions of the idea of self-creation, see Christine Korsgaard, Self-Constitution in the Ethics of Plato and Kant, The Journal of Ethics 3, no. 1 (1999): 129; also, Marya Schechtman, The Constitution of Selves (Ithaca, NY: Cornell University Press, 1996). 28 Hegel emphasizes that the active willing of a particular is ideally also a realization of ones capacity for universality. His language is awkward, but the idea is that in willing a particular thing, we effectively claim that it is a good sort of thing to do tout court, hence a good thing not just for us but universally. 29 I am not taking a Lockean position on property here, but rather the more simple and plausible Rawlsian view that people need some amount of personal property in order to be able to fully realize their value as people. Details about the limits to private property claims are a matter for a broader theory of justice for a society. 30 Hampton, Correcting Harms, 168082. 31 Ibid., 1680. 32 This echoes Hegels way of distinguishing criminal wrongdoing from other kinds of wrong. See Hegel, Philosophy of Right, 6690; and Peter P. Nicholson, Hegel on Crime, History of Political Thought 3, no. 1 (1982): 111. 33 See, for example, Duff, Justice, Mercy, and Forgiveness, 55; and Gert, Hand, and Radzik, Hampton on the Expressive Power, 88. 34 See, for instance, Jeffrey Murphy, Getting Even (Oxford: Oxford University Press, 2003), 66; Duff, Justice, Mercy, and Forgiveness, 55; and R. A. Duff, Recent Work in the Philosophy of Punishment, Crime and Justice 20 (1996): 3738. 35 Duff, Justice, Mercy, and Forgiveness, 55. Roger Wertheimer also raised this objection in a response to an earlier version of this article. 36 Gert, Hand, and Radzik, Hampton on the Expressive Power, 8687. 37 Hampton, Correcting Harms, 1675. She deploys H. P. Grices analysis of meaning from his Meaning, in Studies in the Way of Words (Cambridge, MA: Harvard University Press, 1989), 213. 38 So when Gert, Hand, and Radzik are dismissive of Hamptons reliance on conventional meaning, and say that Hampton should try to change these conventions, I think they have strayed far from the phenomena Hampton is concerned with. See Gert, Hand, and Radzik, Hampton on the Expressive Power, 8687. 39 Thomas Hill, The Message of Afrmative Action, Social Philosophy and Policy 8 (1991): 10829, reprinted in Steven Cahn, ed., The Afrmative Action Debate (London: Routledge, 1995), 181. 40 Ibid., 182. See also J. David Vellemans excellent Well-Being and Time, Pacic Philosophical Quarterly 72 (March 1991): 4877. 41 Hill, The Message, 18283. 42 Success matters. On the view I am defending, an attack that is repulsed does not lower the victim in the way a successful one does. This is because the former does not harm the realization of the victims value in the way the latter does. When an intended victim ghts off his attacker, he is realizing his value in relation to that wrongdoer, and maintaining a proper relation of equality between them. This distinguishes the view from a more purely Kantian view of retribution, with the advantage of hewing closer to our intuitions about unsuccessful criminal attempts. 43 Christopher Ciocchetti makes this point in his Wrongdoing and Relationships: An Expressive Justication of Punishment, Social Theory and Practice 29, no. 1 (2003): 7479. 44 Martin Scorsese, The Departed, Warner Brothers, 2006. 45 Hampton, Correcting Harms, 1696. 46 Hampton, An Expressive Theory of Retribution, 1316; and Hampton, Correcting Harms, 168283. 47 Richard Wineld pointed out to me that Hegels term here is aufhebung, which explicitly invokes his concept of a resolution that incorporates but goes beyond the previous antagonistic forces.

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Hampton, An Expressive Theory of Retribution, 13. Hampton gives the example of programs that make rapists go through role-playing exercises that simulate for them the experience of being raped (without actually constituting rape). See Hampton,Correcting Harms, 168990. 50 Hampton, An Expressive Theory of Retribution, 19.