The Lex Talionis, Retributivism, and a Fair World

     In terms of justice, the lex talionis is one of the most long-standing guidelines for how to treat criminals and what is essentially the golden rule of retributivism: the criminal deserves the crime he committed inflicted unto himself. As Leviticus 24:20-21 states, "fracture for fracture, eye for eye, tooth for tooth. Just as he inflicted an injury upon a person, so shall it be inflicted on him." 

    Despite its lengthy presence in philosophical thought, it's not too difficult to find some problems with the lex talionis. One problem is with the difficulty in punishing certain kinds of offenses that would involve some kind of imbalance between punishment and crime. For example, should the rapist be raped in return? What about the punishment of a kidnapper if he or she has no children or loved ones? Other problematic crimes arise when there are no victims, or the victims are so numerous that any harm done becomes so diffuse that it is impossible to measure (crimes such as tax evasion, drug use, and so on). Many retributivists defend this problem by formulating the punishment in terms of some type of proportionality to the crime: that in some way, the punishment must be proportional to the harm done and culpability of the criminal. And while this seems like a good principle to abide by, it still seems that there is no non-arbitrary way to establish a good measurement of proportionality of harm to both the victim and the offender.¹ In other words, in keeping with this principle, how can we legitimately measure how much harm incarceration does (for a certain time period) as compared to the harm done by buying illegal substances? While, in certain frameworks, it might be logical to say the criminal reaps what he sows, there is certain difficulty in establishing what exactly it is that he has sown.

    The idea that the criminal should get his just deserts, despite its ancient origins and criticisms, is the backbone of retributivist philosophy. One of the main defenders of retributivism is Immanuel Kant. As S.I Benn writes,

"The most thoroughgoing retributivists, exemplified by Kant, maintain that the punishment of the crime is right in itself, that it is fitting that the guilty should suffer, and that justice, or the moral order, requires the institution of punishment. This, however, is not to justify punishment but, rather, to deny that it needs any justification...Its intrinsic value is appreciated immediately and intuitively."²

     For Kant and many other retributivists, then, we see that punishment is not a means to an end (i.e. deterrence of crime, safety for the community, reform of criminals, or other such justifications of punishment), but actually an inherent good without need for justification.  In fact, for Kant, justice would be a moral evil were it used merely as a means to deter crime or reform criminals since that type of punishment would violate his categorical imperative, which states that a human being must never be treated as a means to an end. Kant states as much in his writings:

"Juridical punishment can never be used merely as a means to promote some other good for the criminal himself or for civil society, but instead it must in all cases be imposed on him only on the ground that he has committed a crime; for a human being can never be manipulated merely as a means to the purposes of someone else."³

     In this kind of formulation, it becomes apparent that for Kant, punishment and justice are primarily about fairness. A person's punishment is not based upon its utility to society, but rather an idea of the world as a rationally ordered place that we have an duty to keep in balance. One formulation of retributivism might simply be that we have a duty to maintain a balance of happiness and suffering among people proportional to their moral actions.⁴ And while we might think that this is a foolish in a certain sense, that it would be impossible to maintain a society in which this balance were always maintained, it's undeniable that this type of balance makes a certain kind of logical sense.  In fact, psychological research has shown that people generally have a strong interest in maintaining the appearance of a 'just-world' that makes logical sense. In a series of experiments in the 1960s, Melvin Lerner noted that in cases where people observe harm or suffering visited on someone else, they tend to degrade the other person, believing that he or she has done something to deserve said suffering. It may be ingrained into humans, whether by nature or conditioning, to view the world as governed by a cosmic game of cause and effect in which those who do bad naturally have bad visited unto them.

     But I think it is fair to say that any proper analysis reveals this to not be the case. We are fully aware that bad things happen to good people and vice versa. We hear stories of newborns who diagnosed with a terminal disease before they have even reached a year of age. We hear stories of corrupt bankers who live out their lives in prosperity without ever facing the consequences for embezzlement or other immoral practices. And perhaps Kant would see this as evidence that we have a duty to fight harder to maintain this balance, that there is a great necessity to bring things to an even keel. But I think that the visible 'unfairness' in the world perhaps points toward the fact that a supposed duty to maintain balance in the world underlies a misrecognition of both human motives and cosmic forces.

     In one sense, Kant's formulation of retributivism assumes a society of autonomous, rational equals. In his formulation of justice, he takes for granted that each person within society has autonomous freedom and is capable of rational thought. This, I believe, ignores many of the conditions under which wrongdoing occurs, such as that of poverty, extreme duress, and so forth. And while the assumption of autonomous offenders is certainly problematic, what is possibly even more flawed is the idea that those who dole out punishment can be dispassionate and fair-minded. As James Q. Whitman points out in "A Plea Against Retributivism", when we punish another, we tend to hold it over their heads: we place ourselves as superior to those we are punishing. In the way that Kant's formulation of retributivism implicitly involves a forfeiture of rights on the part of the criminal, so do we come to degrade offenders as socially inferior.

     Kant would likely contend that to treat someone on the basis of their action is to respect them as a rational autonomous being. However, it would seem that any system of punishment that places punisher and offender on unequal social levels is not capable of allowing for any sort of respect between equals. Nor does it allow for healing, growth, or improvement for either the offender, victim or the punisher. We must also not ignore the fact that punishment effects both those who receive it and those who carry it out. When blame is assigned in any situation, it tends to be something that gets people excited and vindictive.

    So while retributivism can certainly be seen as a (relatively speaking) logically consistent system, I believe that it does not do very much to foster the growth of humanity on both an individual and societal level. Much in the same way that Freud in The Future of an Illusion asked whether or not humankind might 'grow up' and move beyond religious belief, I am curious as to whether, in our consideration of justice, we might be able to move beyond a hyper-logical viewpoint of "he did this to me, I should do it back to him" toward a system that can involve growth and healing for each person involved. Is it possible to conceive of justice as something more than a zero-sum game?

Other thoughts and considerations

• It seems that one's political leanings probably inform the types of justice they desire, which likely stems from their overall worldview. For example, I am interested in the way that conservative media has garnered a focus on urban crime and gang violence in comparison to liberal outrage over corrupt financial practices. This is certainly a simplification (there are plenty of counterexamples), but it is something that deserves some further research.
• Consequentialism is often presented in opposition to retributivism. In a simple form, a consequentialist conception of justice states that justice is done in the aim of some greater good that benefits society in a utilitarian way. There have been many attempts to show that retributivism is simply a modified form of consequentialism, thus opening it up to criticisms of general utilitarian theory. While there are certainly relevant differences between the two conceptions, both tend to view those who commit crimes as somehow 'less-than' as compared to those who have not committed crimes. Both also seem to view the offender as the main concern of justice while the victim is regarded as secondary to the process. In a certain sense, this makes the two  conceptions different sides of the same coin, as both are concerned with inflicting suffering on the offender.
• Next week's topic is likely to be the political execution of punishment and the way that justice relates to the state.

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1 Summarized from "Retribution and the Theory of Punishment" Hugo Adam Bedau The Journal of Philosophy , Vol. 75, No. 11 (Nov., 1978), pp. 601-620 ^↩
2 S. I. Benn, "Punishment," in The Encyclopedia of Philosophy, ed. Paul Edwards, 8 vols. (London: Macmillan Publishers; New York: Free Press, 1967), vol. 7, p. 30. ^↩
3 "The Metaphysical Elements of Justice. Part I of The Metaphysics of Morals". Translated by John Ladd, Indianapolis, 1965, p.100^↩
4 "Kant's Retributivism" Don E. Scheid Ethics , Vol. 93, No. 2 (Jan., 1983), pp. 262-282^↩