Oct 22, 2010

from the retribution vault

The November/December resolution for 2010 invites us to contrast a public health approach to a criminal justice approach to illegal drug abuse. One of the most fruitful ways to address the conflict is through the lens of retributive justice.

I haven't sketched out an entire position for each side--I'm too busy helping my debate team figure out their cases--but I do have time to post some links to previous writing on the subject. Enjoy.

1. Gerard Bradley's take on punishment as a way of maintaining "equal legal liberty for all."

2. Sharon Dolovich's Rawlsian perspective arrives at a similar destination by a different route.

3. There's more than one kind of retributivism, mind you.

4. A while back I wrote a case about plea bargaining that employed several good retributive arguments.

5. On the other hand, how about a virtue ethics approach?


Anonymous said...

what is retribution??

Jim Anderson said...

It's another word for retributive justice, central to this resolution. The idea is that criminals morally deserve punishment, and that society, through the law, gives them what they morally deserve.

One of its guiding principles is proportionality: "let the punishment fit the crime."

Miguel said...

I was reading the fourth link and it really caught my interest. The idea that crime involves a societal moral harm. For the Neg i was thinking of making the argument that drug abuse constitutes a moral harm for self-governing societies. Based on Rawls idea that participation in a self-governing society requires empathy and self-control. Individuals ought to be self-less becuase no self-governing society can function if all are selfish.

So the argument becomes that since drugs inhibit a citizen's capacity to be "other-regarding" and in self-control, then drug abuse must remain under the criminal justice system to address the violation of the moral code of self-governing societies. Does this argument make sense? Would this be a good way to structure the Neg case?

Jim Anderson said...

Miguel, that's an interesting take that I hadn't considered. One question, though: if it's a *moral* harm, why does it demand or warrant *legal* redress? Why shouldn't we just use, say, shame or other social pressures to encourage drug abusers to become less selfish?

Miguel said...

I would make the argument that one of the responsibilities of a society based on self-governance is to use the criminal law to not only define harmful conduct, but to promote the characteristics essential to all citizens living in a democratic society (in this case, self-control and common good). Plus based on retributive justice, drug abuse violates the moral code of the land, therefore it warrants a legal response.

Or i guess a virtue ethics approach could work. Aristotle argued that "legislators make the citizens good by forming habits in them." So from there i can make the case that one purpose of the law is to define apsects of virtue.

I guess this is similar to a conception of Social Contract Theory (maybe im wrong? not too certain). To ensure the survival of democracy the state must use the powers it derives from the contract to develop civic virtue. I could also say the criminal justice system is a much more effective response to drug abuse and selfishness than any other "pressures".

Michael said...

I disagree greatly with the idea of retributive justice, though i did like the links to virtue ethics... I think my biggest dislike for retributive justice is outlined by schopenhauer: "“…the law and its fulfillment, namely punishment, are directed essentially to the future, not to the past. This distinguishes punishment from revenge, for revenge is motivated by what has happened, and hence by the past as such... Such a thing is wickedness and cruelty, and cannot be ethically justified. …the object of punishment…is deterrence from crime…” and, in the case of non- capital crimes, rehabilitation. “…purpose for the future distinguish[es] punishment from revenge.”

Jim Anderson said...

1. Why is revenge "wickedness and cruelty?" We can't let Schopenhauer get away with a bare assertion.

2. The retributivist will say that the morally important difference between justice (as desert) and vengeance is the actor. The State has an objective role in meting out justice and forbidding vengeance-fueled vigilantism.

Anonymous said...

What would be some good contentions for these... besides the fact that drug abuse is a disease, not a crime, and through the mill's harm principle?

Jim Anderson said...

Not really sure what you mean, anonymous.