In this essay, I will discuss Jean Hampton’s revamped justification of the retributive theory of punishment based on the link between our condemnation of an act and what makes the act wrong. In particular, I will argue that she does not adequately determine what makes an act wrong nor does she convincingly portray society’s role in punishment. I will begin by laying out Hampton’s argument from her essay “A New Theory of Retribution”. I will then present my objections to her argument—objections based on Hampton’s description of what makes an act wrong and on the limitations of society to maintain “right”. I will then consider different ways in which Hampton could respond to my objections.
Hampton frames her new theory of retribution as a supplement for the inadequate justification provided for the retributive theory hitherto. The underlying problem with all the other attempts at justification, she insists, is the absence of the link between what makes an act wrong and our condemnation of that act. Under these other justifications, retribution seems to read more as revenge for the sake of revenge- failing to “link our condemnation of a wrongdoer to that which makes his conduct wrong” (386). Only in Feinberg’s description of the expressive function of punishment does Hampton see the beginnings of a real justification.
According to Hampton, what makes a criminal act criminal, what makes an incident wrongful is the message that the criminal sends when he commits the act. The wrongdoer is trampling on the sovereignty of another individual and is therefore proclaiming that he is somehow of more value than his victim. By stealing, he is proclaiming that he is somehow more worthy of the possessions than the victim. By killing, he is proclaiming that the life of the victim is inconsequential relative to his desire for him to die. However, there are different ways this message can affect its victim. A person could be subjected to what he simply feels is an inappropriate message; a person can feel insulted and thus be demeaned but has not necessarily been exposed to an objectively wrongful act. Hampton illustrates an example of when a person can feel demeaned without objectively being demeaned when she describes a white woman who feels insulted having to sit next to a black man on the bus. Alternatively, a person could objectively be treated as less than he is, less than an equal human being (if we are to accept the egalitarian theory of human worth). In this way, one is treated as less than what he is, not simply what he sees himself to be. He is somehow diminished, made worth less than what he was by the transgression of the criminal. “A person wrongs another if and only if (while acting as a responsible agent) she treats them in a way that is objectively demeaning.”
A punishment of this transgression is to show that the act was wrong. The act, contrary to the opinion of the criminal, was not warranted by any discrepancies in the value of the victim and the criminal. Punishment, says Hampton, is “the victim’s value ‘striking back’ and in this way proving itself” equal. The defeat of the criminal is proof that the criminal is not worth more, as he claimed. Punishment is rectifying the moral falsity that the criminal uttered when he claimed that the victim was lower and replacing it with a truth. Punishment is not diminishing the criminal, and here the distinction between being subjectively injured and objectively injured comes into play, it is simply lowering the criminal’s subjective assessment of his value back to where it objectively belongs. In this way, the goal of punishment is establish goodness, to proclaim the moral truth of relative human value.
Correcting this misconception on the part of the criminal through pain, Hampton continues, is not merely justified by the alleged sadistic streak of retributivists. Society cannot simply reaffirm the victim’s value through a ticker tape parade and call the thing settled, the purportedly high value of the criminal must be lowered for the victim’s value to rise. As much as the community could claim that the victim does not have less value than the criminal does, the loss on the part of the victim would count as evidence that he does. If the victim can do to the criminal what the criminal did to him, then the criminal can’t claim superiority. The criminal must suffer, he must “experience…defeat at the hands…of the victim (the OED definition of ‘suffering’) in order to be demeaned to his true value. When punishing, the undoubtedly clear and common association between pain and defeat is taken advantage of.
Therefore, the punishment is the negation of the morally false message the criminal made when he committed the crime. It negates the claim that the criminal and victim are not equal in value. What made the act wrong was the message and our desire to punish the criminal is a desire to correct that message and thus negate the wrong.
Hampton’s version of the retributive argument melds in well with our practice of punishment. It doesn’t punish the innocent as our current justice system attempts to avoid. As it only seeks to reaffirm the relative values of the agent who claimed the moral falsity and the victim, one who could not be considered an agent would not be punishable. In this same way, the system would not punish those who were or somehow became mentally handicapped after the commission of the crime because the ‘responsible agent’ who claimed the inequality didn’t or no longer exists. It is gone “as surely as if the criminal had died.” This should not be mistaken with any kind of moral education that would let those who have reformed off the hook. If the agent still exists, the true relative value must be enforced regardless of the individual criminal’s attitude. It is for the sake of goodness, for the sake of moral truth, that this punishment must occur, not for the education of the criminal.
Hampton’s version of the retributive argument also melds well with the concept of proportionality practiced in our justice systems. The degree to which the criminal lowers his victim can be replicated in his punishment. The more severe the punishment, the lower the punishment brings the criminal, the larger was the discrepancy between the value he claimed for himself relative to that of the victim. Hampton’s version of the retributive argument, unlike the other versions of the retributive theory, allows for restrictions on punishments internal to the theory, without needing to be ad hoc. Punishments must keep in mind that the goal is not to lower the criminal to a bestial level, which horrific punishments such as enslavement or torture would do. The goal is to deflate the criminal’s impression, to make him an equal of society, not to cause him to lose value in some way. A true adherent of Hampton’s retributivism would find truly inhumane treatment, regardless of his crime, insulting- he is, after all, still human. A truly retributivist policy toward constructing punishments, according to Hampton’s justification of it, would give the best expression possible of the value of the person hurt by the wrongdoer subject to the limits placed to maintain the criminal’s equality and humanity.
Although Hampton’s argument is persuasive, a few notable flaws in her argument suggest that her claim was more ambitious than she could adequately prove. The most significant issue with her theory is her claim that what makes an act wrong is the message behind it. This implies that the act itself is only as wrong as it is a conveyor for the message but this supposition does not match our reality. If it were solely the message that we had a problem with and not the act, we would be equally horrified by a really convincing essay on why Greg has more value than Pete as we would Pete’s death by Greg. Not only does the act itself provoke condemnation regardless of the message, but the claim that society is solely motivated by a desire to maintain moral truths is a bit lofty. If it were our society’s responsibility to proclaim moral truths, our government would have to counter even the most trivial messages with counter-messages. Should Greg publish a book proclaiming the inferiority of Pete, the government would have to publish a book proclaiming the equality of Pete and/or proclaiming the falsity of Greg’s claims. This responsibility Hampton claims for society is an ambitious one indeed. Why would we limit it to claims of equality? Should we collectively decide another moral truth, would not society be compelled to make sure all complied? We generally agree that adultery is immoral, what prevents our society from affirming this moral truth?
In response to my objections, Hampton could first deny the similarities between writing a convincing essay and murdering someone. Although a persuasive essay may provide some very good reasons why Greg might be considered Pete’s inferior, it proves nothing whereas Greg murdering Pete, right or wrong, provides evidence of Greg’s superiority. Until that evidence is negated by Pete’s dominion over Greg, no matter how much society claims that the two are equals, the incident stands to prove otherwise. Moreover, to the additional objection that the act itself is horrifying, independent of the message, Hampton could simply disagree. We find a brutal decapitation more horrifying than a death by gunshot in a gang fight because the former displays that much less respect for the victim, that much more desecration and alternatively claims that much more relative value for the transgressor. The other objection that this maintenance of moral truths is a little much to ask of society proves more difficult to refute. Hampton could either suggest that society does and has attempted this but is unfortunately limited either by means or by a collective understanding of said moral truth, or she could suggest that she does not claim more than the one moral truth that she has mentioned so far. She could go so far as to claim that the function of society only needs to adhere to the maintenance of that one moral truth and not moral truths as a whole, anyway.
Overall, Hampton’s theory provides a comprehensive and direct justification of punishment. It adequately compares to our system of justice with respect to proportionality and allotting responsibility, responsibly (not punishing the innocent) and does not fall into the notorious ‘bedrock foundation’ justification that other retributivists have attempted to use as justification with unsatisfactory results. Although, I have seen flaws in her description of what makes an act wrong and in her description of the responsibilities of society, there are refutations available to my claims, which I acknowledge as debatable although not all seem acceptable.