Retributivism, Moral Education, and the Liberal State

  • Jeffrie G. Murphy
Part of the Philosophical Studies Series book series (PSSP, volume 54)


What is the connection between punishment and immorality? Deterrence theorists maintain that punishment scares people away from immorality. Retributive theorists claim that punishment makes sure that wrongdoers suffer in proportion to their moral iniquity and thereby give up any unfair advantage over others their wrongdoing may have won them.1 Moral education theorists—who seem to be dominating philosophical discussion these days—maintain that punishment functions to teach people what is wrong by, in Robert Nozick’s phrase, “connecting them with correct values.“2


Supra Note Moral Education Liberal Theory Fellow Citizen Criminal Punishment 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.


Unable to display preview. Download preview PDF.

Unable to display preview. Download preview PDF.


  1. 1a.
    SeeMorris, “Persons and Punishment,” 52 Monist 475–501 (October 1968);CrossRefGoogle Scholar
  2. 1b.
    and Murphy, “Marxism and Retribution,” 2 Phil. & Pub. Aff 217–43 (1973).Google Scholar
  3. 2.
    R. Nozick,Philosophical Explanations 363–97 (1981). (Although Nozick makes a strong case for a moral education theory he calls “teleological retributivism,” he ultimately rejects this theory for a metaphysically complex version of pure retributivism.)Google Scholar
  4. 2a.
    See alsoMorris, “A Paternalistic Theory of Punishment,” 18 Am. Phil. Q. 263–71 (October 1981);Google Scholar
  5. 2b.
    andHampton, “The Moral Education Theory of Punishment,” 13 Phil. & Pub. Aff 208–38 (Summer 1984). Morris has not abandoned his earlier defense of retributivism; he simply sees moral education as an additional justifying aim of punishment.Google Scholar
  6. 3.
    Murphy, “Why Have the Criminal Law at All?”, (reprinted in the present collection).Google Scholar
  7. 4.
    I can testify to my own longstanding tendency to use liberal models in political theory.Nozick’s Anarchy, State and Utopia (1974) clearly demonstrates his commitment to libertarianism. Morris (at least in “Persons and Punishment”) expresses liberal commitments when he presents a strong statement of a natural rights thesis and argues that just legal institutions should “maximize each individual’s freedom of choice.” Hampton frequently talks in this way as well, but her expressed sympathy for Plato and Hegel suggests that it may be a mistake to identify her political presuppositions as unambiguously liberal; and thus her defense of punishment as moral education may not involve as deeply the inconsistency problems I will outline. Since she is more sensitive to issues in social and political philosophy than most of those who write on punishment, one would like to learn her general social and political theory in order to determine both if it is plausible and if it sits consistently with her account of punishment. Of course, liberals, retributivists, and moral education theorists all like to talk about the basic value of autonomy built into their theories. It is by no means clear, however, that autonomy means the same thing in all these contexts or that all the different meanings are consistent—that is, that they can all be built coherently into the same systematic theory.Google Scholar
  8. 5.
    Miorris, supra note 1. See alsoFingarette, “Punishment and Suffering,” Proceedings of the American Philosophical Association (1977). Fingarette’s thesis is basically a logical rather than a moral thesis, for he argues that the very concept of a legal requirement (or prohibition) loses its sense in the absence of a policy of punishing violators. However, since many of the central concepts in Fingarette’s theory (for example, punishment as “humbling the will “) depend in my judgment on certain nonutilitarian assumptions about human nature, responsibility, and moral relations, it strikes me as not totally misleading to see him as at least partially in the camp of moral retributivism.Google Scholar
  9. 6.
    Hugo Bedau is representative of many philosophers of punishment when he writes that “virtually everything of philosophical interest regarding any theory of punishment can be brought out by considering two questions: 1) How completely does the theory account for our ideas of justice in punishment? 2) How much of a full-scale theory of punishment does this theory yield?” (“Retribution and the Theory of Punishment,” 75 J. of PHIL. 619 (November 1978). Bedau’s “virtually everything” makes no reference to issues in social and political philosophy—a striking omission.Google Scholar
  10. 7.
    Standards of judicial review have been given their most complex articulation in the area of equal protection analysis. The normal standard of review is sometimes called the “rational basis test”: State action will pass review if it serves a purpose that could be regarded as rational. This is clearly a weak standard, since some good reason can probably be found for all but the most silly state actions.) When fundamental rights are encumbered or when special burdens are placed on members of “suspect classifications”—such as racial minorities—”strict judicial scrutiny” is triggered. This involves the “compelling state interest/least restrictive alternative” test: State action will pass review only if the encumbrance of the right is justified by a compelling (not merely rational or legitimate) state interest and if the encumbrance is actually necessary to accomplish that interest. This is clearly a very tough test to pass. For a good general discussion of these matters see J. E. Nowak, et. al., Constitutional Law 590 ff. (ed. 1983). I find it philosophically illuminating to extend this analysis into the area of punishment; but, except for some application in eighth amendment cases, there is very little actual legal doctrine here. Even where, as in equal protection analysis, there is developed legal doctrine, much philosophical work remains to be done—such as, analysis of the concept of a fundamental right and the development of a general theory of compelling state interest. (Are the interests, identified by the courts to date as compelling, simply a laundry list or can they be seen as a part of a coherent theory of the state?) All I am suggesting here is that the framework is a good starting point.Google Scholar
  11. 8.
    Nozick supra note 4, explores the interesting and demythologizing suggestion that the state should be viewed as a “dominant protective agency.”Google Scholar
  12. 9.
    There is a sense, of course, in which at least some criminals have simply used others as a means to their ends. Does this then mean that they have waived their right not to be so used themselves?Google Scholar
  13. 10.
    The following argument draws heavily on the so-called “principle of fairness or fair play” defended by John Rawls and H.L.A. Hart and powerfully criticized by Robert Nozick. See Hart, “Are There Any Natural Rights?” 64 Phil. Rev. 175–91 (1955);CrossRefGoogle Scholar
  14. 10.
    Rawls, “Legal Obligation and the Duty of Fair Play,” Law & Philosophy 3–18 (S. Hood ed . 1964); and Nozick, supra note 4, at 90 ff.Google Scholar
  15. 11.
    I developed some social and political worries about this pattern of argument in my “Marxism and Retribution” (supra note 1), but at that time I still accepted the moral importance of the principle of fairness. Nozick’s arguments (supra note 10) have now undermined by confidence in this principle.Google Scholar
  16. 12.
    Might not rational social contractors adopt a state only if that state would pursue, as one of its compelling interests, the goal that citizens are to be protected against suffering injustice? Might this not be the compelling interest behind punishment where such state action restores the moral balance of justice by making sure that the criminal derives no unjust advantage over law-abiding citizens? Though there may be something in this general line of thought, it is only a start toward a justification of punishment. Why, on this theory, is the state the complaining or injured party—something not always the case when citizens treat each other unjustly? Also, since there are perhaps nonpunitive ways of dealing with this imbalance of justice, it would need to be shown that there are not ways less restrictive than punishment that would restore the balance. What about restitution or compensation, for example? SeeBarnett, “Restitution: A New Paradigm of Criminal Justice,” 87 Ethics 279–301 (July 1977) .CrossRefGoogle Scholar
  17. 13.
    Morris, supra note 2 at 268.Google Scholar
  18. 14.
    J. Rawls, A Theory of Jusnice (1971).Google Scholar
  19. 15.
    A. MacIntyre, After Virtue (1981).Google Scholar
  20. 16.
    Dworkin, “Liberalism,” in Public and Private Morality 127 (S. Hampshire ed. 1978).Google Scholar
  21. 18.
    Ihe following persons were kind enough to comment on an earlier draft of the present essay, and I am grateful to them for their insights and suggestions: Herbert Fingarette, Gregory Fitch, Jean Hampton, Herbert Morris, George Panichas, and Michael White.Google Scholar

Copyright information

© Springer Science+Business Media Dordrecht 1992

Authors and Affiliations

  • Jeffrie G. Murphy
    • 1
  1. 1.College of LawArizona State UniversityTempeUSA

Personalised recommendations