Society Journal

Much confusion about the goals of retributivism or the absence of such, stems from statements such as:

For retributivists, punishment is not a means to an end, rather, it is an end in itself, for example, as the affirmation of the unchanged persistence of a legitimate normative order, despite the crime.

What this really means is that punishment is justified as an expression of a positive value, here, the affirmation of a legitimate normative order. Therefore, punishment does not require an additional consequentialist justification as an (evil) means to a (legitimate) end. The differences and similarities of retributive and consequentialist theories can thus be stated more clearly. Both consequentialists and retributivists (Kant and Hegel both prominently included) acknowledge that punishment helps to control crime. For a consequentialist, crime control (a good) is the end that justifies punishment (an evil), to the extent that punishment is a means to achieve the end. For a retributivist, crime control is the inevitable consequence of promoting freedom (or, in the framework of more traditional normative theories, justice). Consequentialists punish to keep us factually safe. Retributivists punish to keep us normatively free; and thereby also factually safe. The drawing below expresses that relationship. Note that certain factual states of affairs of optimal crime supervene upon freedom or justice as desirable normative states.

In the drawing, not every state of factual safety can be achieved by promoting a normative state of freedom. For example, Guantanamo-style detentions (x1) could be justified on consequentialist grounds if they made us safer. (Which they do not.) However, they can never be justified as promoting a state of normative freedom. Compare that to criminal punishment for robbers (x2), which can be justified both on consequentialist grounds and as an affirmation of freedom. In other words, the goals of retributivism are very different from those of consequentialism (one is normative, the other is factual), even though every factual state of affairs brought about by the pursuit of retributivist goals could also serve as an end for a consequentialist justification of punishment. The critical point is that the reverse cannot be said.