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An Explanation of Retribution Author(s): Andrew Oldenquist Source: The Journal of Philosophy, Vol. 85, No. 9 (Sep., 1988), pp. 464-478 Published by: Journal of Philosophy, Inc. Stable URL: http://www.jstor.org/stable/2026803 Accessed: 03/06/2010 08:42
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AN EXPLANATION OF RETRIBUTION
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HE universalinsistenceupon retributionfor grievouscrimes

is deeply felt, intractable, and largely independent of utilitarian considerations. The pursuit of Adolph Eichmann, Josef Mengele, and other Nazis in their dotage, tending their rose gardens in South America, makes no utilitarian sense whatever. They will not do their crimes again, nor would their punishment deter others. On this issue the great majority of us find our God in the Old Testament, not the New. No one who reads accounts of courtroom reactions of crime victims, or of the parents of children whose murderers have been convicted (or acquitted), can doubt that the world demands retribution for criminal harm-not just compensation or restitution, which often is impossible, but retribution. After every conviction the victims, or their relatives, applaud, or cry with relief, and otherwise indicate that the world could never be right again until the one who hurt them so terribly received his due. Some of these people will call it justice, some will defiantly admit it is revenge. But, if these courtroom responses lack moral significance and are mere effusions of vengeance, so too does the 40-year search for Josef Mengele and other Nazis. Whether retribution nonetheless has utility is an issue I shall pursue further on. Whereas the desire for retribution does not prove it right, I believe there are arguments that explain the function and nature of retribution in such a way that together they provide some considerations in favor of morally accepting retributive punishment. The first argument aims to establish the social need for retribution, on the grounds that humans necessarily live in moral communities and the existence of moral communities depends on the acceptance of retributive justice. The second argument rebuts the objection that an insistence on retribution is a mere desire for revenge and not a moral claim. This argument aims to show that retributive justice is sanitized revenge, that is, that revenge becomes retributive justice when certain empirical social conditions hold. After these arguments are laid out, we need to take up the possibility that retributive judgments might still be false moral judgments, even if it is established that they are moral judgments and are socially necessary; and a final task is to examine utilitarian grounds for retaining the social institution of retribution.
I. MORAL COMMUNITIES

The first of these two arguments is the following:

(1) Humans are innately social animals who can flourish and achieve their full humanity only in society. 0022-362X/88/8509/0464$01.50 ? 1988 The Journal of Philosophy, Inc.

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(2) A human society is a moral community. (3) A moral community is such that members hold one another personally accountable for harm to fellow members and to the common good. (4) To hold persons personally accountable for harm to fellow members and to the common good is to consider them deserving of blame and punishment. (5) To consider persons deserving of blame and punishment is morally to accept retribution. Therefore: (6) Humans can flourish and achieve their full humanity only if they morally accept retribution. Step (1) is empirical, except for debate about achieving full humanity. This is intended to be a very strong claim; a way to assert it without the quasi-evaluative language is that breeding populations of humans survive only in societies. But, even if they could physically survive outside society, their lives would be so stunted that we would not recognize them as human. Most anthropologists and students of human evolution maintain that our ancestors were social animals throughout the Pleistocene, before we were even human. This is to say we are innately social, not social by convention or a "social contract," and that we evolved the emotional equipment for cooperative social living.

Extended infancy, pair bonding, and loss of estrus are evolutionary developments of hominids as they became social animals; and the evolution of these traits probably was reciprocally reinforced by early social life. Collaborative hunting and gathering, tool use, language, the need for familiar people, territory, and routines, the universal fear of being outcast, and the world-wide development of ritual and ceremony are among the things constitutive of human sociality. I hypothesize also that humans became genetically primed to need the socialization process itself, and not just its benefits. As Mary Midgley' put it, humans come half finished, requiring a culture to complete them. By a moral community (in step 2), I mean a society that includes the following features. (a) Members have a sense of societal identity and social boundaries, and are able to distinguish members from nonmembers. Unless alienated, their sense of who they are is partly constituted by their social identity.
1 Beast and Man (Ithaca: Cornell, 1978), p. 286.

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(b) There are personalvirtues,traditionsand ceremonies,and rules of social moralitythat are shared and consciouslytransmittedfrom generationto generation. value, a com(c) The communityis, to its members,a noninstrumental mon good that is more than a mere protective association or interest group. (d) Membershave group loyaltyas well as impersonalmorality,and are inclined to be proud when their communityprospers, ashamed when it is disgraced,and indignantwhen it is harmed. In order to live together cooperatively people must be socialized. We want the behavior of people we meet to be reasonably predictable and nonpredatory. A human community, unlike (but not completely unlike) an ant colony or a herd of gazelle, has social morality and group loyalty because we can conceptualize, name, and teach the dispositions for social cooperation. We also can figure out the advantages of being free riders, which requires social countermeasures. A moral community is just the form a herd or colony takes, given a species with the innate sociality, intelligence, and language ability that characterize humans. A moral community is distinct from an interest group or protective association. People may unite to achieve a common end such as defeating a tax bill. They form an interest group; its value is wholly instrumental and, if it fails, its reason for existence is gone. An interest group makes no claim on our loyalty and one cannot be alienated from it. But an interest group might evolve into a moral community; then it is an "organic" community, its good being more than instrumental to its members. In this case one of one's social identities derives from it, and one can be proud or ashamed, loyal or disloyal, or alienated from it. In step (3), which says that in a moral community members hold one another personally accountable for their behavior, one could define 'personally accountable' as causally accountable and such that incarceration would be utile. On this interpretation, step (3) would not imply step (4)-that some people are considered to deserve blame and punishment; or, if it did imply (4), it would be in a sense of 'blame' and 'punishment' such that (4) did not imply (5)-that one morally accepts retribution. I mean 'personally accountable' in a sense that makes (4) and (5) true by definition. Thus, (3) is the crucial premise, so let us now turn to it. A sense of belonging to a community depends on an ability to individuate it from others, which in turn depends on being able to tell members from nonmembers. One way is for members to wear blue feathers. A more important way, in part definitive of the differ-

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ence between members and nonmembers, is in terms of who is held personally accountable for harm and expected to make sacrifices for the common good. This assignment of responsibility is complex, depending on the degree of harm done and on social distance. For example, outsiders are not held accountable for careless criticism or for the neglect of my club, neighborhood, church, or labor union; but almost any normal human is held accountable for arson or robbery. I say 'almost,' because those whose social distance is great, such as Amazonian tribe members, often are not held accountable. Retributive thoughts and feelings do not arise unless the criminal is in some sense one of our own, someone from whom we expect compliance and group regard; otherwise our thoughts remain utilitarian and do not go beyond self-defense or quarantine. We are indignant and angry when the transgressor belongs to our society (in some cases just being a member of a nonprimitive human society is enough), and retribution is the expression of this indignation. A society that never held its members personally accountable for good or evil, never expressed its collective will through praise and censure, would have a weak conception of the difference between members and nonmembers; and, what may amount to the same thing, it would have a weak or diffuse conception of a common good worth defending. It is doubtful we could possess common values and a common way of life if we were totally lacking in indignation at affronts to them. Serious crimes, when they go unpunished, diminish the value we place on our social identities, and hence our valuation of ourselves. Only if I regard a community as mine am I capable of pride, shame, or indignation regarding it. In general, membership in a moral community is revealed by who is affronted by insults to it, who enlists, or puts in time and contributes money, by who is blamed and criticized for not behaving in these ways, or feels shame and guilt. It follows that a powerful way to tell young delinquents they still belong and are members of a moral community is to hold them personally accountable and punish them, whereas not holding them accountable is to alienate them more than they already are, to cast them out emotionally. Criminal punishment that is not done on openly retributive grounds exacerbates a criminal's alienation from mainstream society. A moral community is an intricate network of felt obligations and expectations. Each of us has a number of social roles and the viability of society requires reliance on others for the behavior expected of a parent, teacher, student, passerby, neighbor, driver, business person, worker of any kind, and so on. We constantly judge the perfor-

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mance of the people we encounter, and when it falls short, as everyone's does occasionally, we criticize them, hold them responsible. What I am suggesting is that retributive criminal justice and the sense of mutual responsibility found in well-functioning moral communities are two modes of a common moral sentiment. Crimes are simply extreme cases, within a moral community in which there is a constant readiness to blame or criticize free riders, those who fail to do their fair share, or are exploitative or threatening. This is the essence of retribution: holding one another accountable. It is not peculiar to crime, but is manifested everywhere in society in our mutual accountability for meeting community expectations. If accountability is an essential feature of community, and criminal punishment concerns its dramatic extreme, there are implications for social control. There is a continuity from mild moral offenses the law leaves alone to serious crimes. The morally important feature of this continuum traditionally has been a delinquent's degree of disgrace. Fining, jailing, or executing someone need have nothing to do with punishment. Punishment is essentially a moral notion and has no necessary connection with violence or deprivation of freedom. It is, ideally, putting someone in disgrace and the eliciting of repentance. If we just fine someone, we merely impose a cost; if we just take him out in the yard and shoot him, we are simply disposing of a problem, as we do with a disease or a mad dog. But, if we try to elicit a confession and contrition, we are seeking a moral transaction with a fellow human being with whom we share at least some principles. This may be one reason why regimes whose moral foundations are the most dubious often try the hardest to elicit confessions from prisoners and thus give themselves the appearance of moral legitimacy.

It might be objected that harm, in the form of fines, jail, or execution, is essential to punishment. This is right if one also accepts disgrace and ostracism (and the fear of them) as forms of harm. They can, after all, be feared and hated more than a fine or beating. Nonetheless, it is a mistake simply to put disgrace and ostracism on a list of harms. It is the same mistake J. S. Mill made in treating the "internal sanction" of conscience as merely a pain, like toothache; for disgrace and the threat of ostracism, in addition to being harms, are moral notions essential to punishment and are what make punishment a moral transaction. You can harm a mad dog but you cannot punish it because you cannot disgrace it, and you cannot disgrace it because it does not share your moral community. It follows that it is impossible to punish some people, for if they are completely alien or sufficiently alienated, they cannot be disgraced

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and they welcome rather than fear ostracism. An Amazonian tribe can harm me but it cannot punish me for violating its taboos. I must to some degree belong to a group, recognize it as one of my moral communities, before it can punish me. Hence, completely alienated criminals can be disposed of or quarantined, but they can be punished in at most a secondary sense. That is, as alienated rather than alien, they belong to my moral community and therefore ought to be susceptible to disgrace and fear of separation, but they are not and yet we impose the rituals of punishment on them anyway because we still claim these criminals as ours. In tribal settings, fines or beatings are often more important for their symbolic role in a ritual of moral censure and disgrace than for the material harm they do. Harsh words, hard looks, temporary ostracism, and disinteressement are punishment when the object of this treatment has an adequately developed social identity. This is what punishment always has been in tribal society, in families, and in close-knit modern societies. To the extent that ritual censure is replaced by simply damaging someone-by fining, confining, or killing-to accomplish some future (utilitarian) goal, punishment has become another thing, though the name may stay the same. Hence, where dangerousness does not require jail, one should think first of punishments that put the potential delinquent at risk, in his local community, for disgrace and making restitution. Putting crime in a completely separate category from misdeeds we blame without the aid of the law leads us to demoralize crime, which is more clearly a mistake than the decriminalization of immorality: when criminals are not seen simply as great violators of the mutual moral expectations in our daily social intercourse, but instead are viewed as mere harmful agents, they are removed from our moral community. They are removed because of a philosophical mistake that alienates them more than they were before. Retribution consequently is intrinsic to the cohesion of a moral community. This does not imply we should be constantly censorious or rant at one another; it is that we risk disapproval, or withdrawal of trust or privileges, when we disappoint normal expectations of cooperation, loyalty, and doing our fair share. There is a problem beyond the scope of this essay about whether "moral communities," as I have defined them, can ground moral rights or duties. It may be thought that my moral communities can be only "relative" or subjective grounds, since they are bounded geographically or, alternatively, are bounded by the idea of my own kind under a certain description. And hence it may be argued that moral duties can legitimately arise only within a single, objective moral

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Kant's community of rational beings. One community-perhaps reply is that I take the notion of "moral duty" to be univocal in various moral communities, and, if there is a single core meaning, derivable from an objective conception of a global moral community, this is what I mean by 'moral duty.' But I doubt the existence of a single, overriding moral community on which all conceptions of moral duty are dependent. More plausibly, every moral community is group egoistic, grounding rights and obligations that are both prima facie and relative to the good of one's group (under some description). It is possible that even Kantian and utilitarian conceptions of the domain of morality are "tribal" in the sense of being expansive conceptions of one's kind. It is also quite possible, however, that there exist moral ideals such as rationality and happiness which are independent of the notion of a moral community as I have defined it-that is, ideals describable without the use of egocentric particulars and hence independent of any conception of the good of my community, my species, my fellow rational beings, and so on. If so, what protects the good of one's community conceivably could clash with these ideals. I discuss this problem at length elsewhere,2 but cannot pursue it further here. Some retributivists argue that punishing criminals is a form of communication which tells the criminal how wrong the act is, or hopes to show him it is wrong, or tells him that society condemns it. These views have been called teleological retributivism, however contradictory that label may sound. Although I agree that one function of punishment is to send a message to the criminal, I think the main message is something else: on the communitarian view I am defending, what a moral community communicates to criminals by punishing them is that they still belong to the community, they are still members. For it is our own kind that we hold responsible; we do not punish wild animals, bacteria, or total aliens, but instead avoid or dispose of them. Institutionalized retributive punishment is a ritual act that includes the criminal in the ritual, and a society does not include outsiders in its rituals. Although this is not its only or even its main purpose, retributive punishment (excepting execution and its analog in tribal societies, banishment) aims at a criminal's contrition and reintegration into the society. Robert Nozick3 has suggested that the function of retributive punishment is to reconnect the wrongdoer with correct values; it is a

2 I examine the relations between group egoistic and impersonal morality in Normative Behavior (Washington: University Press of America, 1983), and in The Non-Suicidal Society (Bloomington: Indiana UP, 1986). Explanations (Cambridge: Harvard, 1981), p. 374. 3 Philosophical

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way-of-last-resort for correct values to have an effect in our lives. Since wrongness qua wrongness has no causal effect and the right values failed to motivate the criminal, we make, via punishment, the connection in his life with values that he failed to make by living morally. I think Nozick is right in affirming the importance of "reconnecting" the criminal with the moral norms of the community. But his view, like the communication theories, also appears to justify retribution in terms of what it does for the wrongdoer instead of what it does for us. I suggest, on the contrary, that a moral community exacts retribution for its own good and not primarily to inform, connect, cure, use, or to send any kind of message to the criminal. All of the above are useful and at times desirable, but the essence of retributive punishment lies elsewhere. We would not punish Hitler, Josef Mengele, or a brutal rapist-slayer, primarily in order to rectify their relation to the universe. We would kill or imprison them because of what they did to us, and have no self-respecting alternative. Punishing serious crime is one of the rituals that contributes to a society's identity as a living moral community, and simultaneously, as Susan Jacoby4 has said, denies promiscuity to the retributive urge. Like a bear dance or a funeral, it contributes to a society's identity as a living moral community. In the words of the criminologist Martin Levin,5 Our penal andjudicial systemsserve other goals than loweringthe rate And the tension among these goals cannot be resolvedon of recidivism. utilitarian grounds;one reason is that the punishmentof criminalsis, in thatexpressesour ultimatevalues(ibid., p. 103). part,a symbolicactivity The importance of retribution is that, without taking proportional retribution in grave cases, a society dishonors itself, and undermines public confidence that the society takes itself and its values seriously. If Israel, for example, forgave the Nazis it captured and convicted, it would compromise the dignity and honor of the Israeli state. The strength of our indignation and demand for retribution depends both on the heinousness of the act and on the extent to which the delinquent is thought of as one of our own. This is why we do not view tribal head-hunting the same way we view ordinary murder by a member of our own community, and why genocide by a modern industrial nation is so execrated. These reflections are bound to make some people uneasy. Affirming the importance of ritual suggests an organic theory of society.
The Evolution of Revenge (New York: Harper & Row, 1983), p. 4 WildJustice: 182. 5"Crime and Punishment and Social Science," The Public Interest (Spring 1972).

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And the organic theory has been part of a fascist conception of the state according to which persons are of value only as parts of a larger whole, dispensible and of no intrinsic value as individuals. Given the connotations of the "organic theory," it is better to speak of a communitarian theory of society, which puts one in the company of Tocqueville rather than Mussolini. It is, I think, a mistake to abandon criticism of radical individualism because of what Charles Taylor6 called the "totalitarian menace," a phrase he used when he was criticizing the "negative theory" of freedom. Ritual may remind some of Hitler's Niirnberg rallies, but it remains the most significant way in which people, world-wide, distinguish the act of a community from that of an individual. Marriages, convocations, commencements, celebrations, inaugurations, school recognition ceremonies, holiday observances, and countless other rituals help us take common goods seriously, maintain social identities, and diminish alienation, and it would be absurd to abandon or denigrate them because Hitler had Niirnberg rallies. Second, moral communities as I construe them are multiple, nested, overlapping, and generate only prima facie obligations for their members. Any obligation to one's community (whether family, nation, or species) can be overridden by stronger obligations to other moral communities, or by moral principles independent of communities. The idea of a moral community imposing obligations that swallow up the individual is more tempting if one thinks there is only one genuine moral community. Finally, I think the evidence is overwhelming that people need social identities-essences, as it were-and that otherwise they feel isolated, alienated, and without significance. Unless people noninstrumentally value something other than themselves, they will find it next to impossible to value themselves. This is what it means to say we are innately social animals and it is the basis for criticism of radical individualism. But it is one thing to say people cannot flourish without social identities and a sense of possession toward their societies, and another to say they are mere parts of society like bricks in a wall. If I cannot flourish without belonging to moral communities, it does not follow that I have no value as an individual and can be sacrificed for the community; indeed, one of the pre-eminent values of my community may be the value of individuals. Again, it would be absurd to abandon communitarian social institutions and become alienated because Mussolini viewed citizens as dispensible parts of an aggressive nation state.
6 "What's Wrong with Negative Liberty," in The Idea of Liberty, Alan Ryan, ed., (New York: Oxford, 1979).

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Can revenge be kept out of this? Can we not show that retributive justice is the moral idea that some criminals deserve to be punished, and that this is a distinct moral concept with no necessary connection with revenge? Can we not affirm a normative retributive premise that makes no reference to desires or to moral psychology? C. W. K. Mundle,7 for example, offers such a premise. He says, "The fact that a person has committed a moral offense provides a sufficient reason for his being made to suffer" (ibid., p. 221). But, if someone simply says this claim is false, there is nothing more to be said by another who thinks it is true. And this is not its only difficulty. It affirms; but it does not explain anything about retribution's universality, origin, social function, or relation to retaliation. A philosophical concept of retributive desert, separated from both vengeance and utility, is a bloodless notion which cannot begin to account for the vehemence with which one seeks to punish the acts of Nazis and brutal criminals. Utility can tell us, roughly, how much to punish a kind of crime to reduce its future occurrence to an acceptable level. The idea of revenge makes understandable (whether or not we reject it on moral grounds) people's insistence on harming certain criminals. But retribution, distinct from utility and revenge, is a philosopher's phantom, getting what sense it has from its secret association with the idea of vengeance. Can vengeance be a moral category, or is it inherently barbaric, destroying the morality of what partakes of it? As we have seen, we cannot have a moral community unless its members are personally accountable for what they do; personal accountability makes no sense unless it implies that transgressors deserve punishment-that is, they are owed retribution; and I shall add now that there is no doubt that retribution is revenge, both historically and conceptually. I do not believe that the logic of this chain can be broken-from moral community, to accountability, to retribution, to revenge. Neither do I believe it needs to be. The solution lies in seeing that judicial retribution is not mere revenge but revenge that warrants its new name by satisfying certain social conditions. In simple revenge or retaliation the victims (or their relatives) set and carry out the punishment. Such retaliation is unpredictable from case to case, sometimes gets the wrong person, often is ineffective because the victim is not strong enough, and usually is harsher than nonvictims would think is fitting. Personal retaliation also has no built-in mechanism for termination, the result

7"Punishment and Desert," Philosophical

Quarterly, iv, 16 (1954).

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often being an endless feud. This situation is not totally unlike what John Locke conceives punishment to be in the state of nature. If revenge is the source of the passion and emotion behind our insistence on just punishment of criminals, it is impossible to eliminate it; we can only cleanse it, civilize it. As Jacoby says, The taboo attached to revenge in our culture today is not unlike the illegitimate auraassociatedwith sex in the Victorianworld.The personal and social price we pay for the pretense that revenge and justice have nothingto do witheach other is as high as the one paidby the Victorians for their convictionthat lust was totally alien to the maritallove sanctioned by church and state (op. cit., p. 12). I suggest that when certain empirical conditions are met, retaliation, "getting even," turns into retributive justice, a moral concept. I call this justice as sanitized revenge. The conditions are that punishment: (a) is appliedby officialswho are not friendsor relativesof the victimor defendant; (b) is applied consistentlyfor similarcases, and hence is predictable; (c) is applied in accord with publicallypromulgatedprocedures and penalties. (d) is decidedand pronouncedin a context of ritualand ceremony,thus and not just an individual is speaking. conveyingthata community (e) is decided after due deliberationand not in the heat of passion. These conditions require refinement and perhaps additional ones will need to be added. When enough such conditions hold, we have retributive punishment, a moral act, and not mere revenge. I do not suggest that these are necessary and sufficient conditions. "Retributive justice" is an open or cluster concept, the relative weights of the conditions that turn revenge into retributive justice depending on their degree, how they are combined, and the particular circumstances. Neither does this conception of retribution yield a formula for determining what punishment one should believe "fits" a particular crime. We have general feelings for what is "too much" and "too little" punishment, and in between we depend on a combination of reciprocity, the degree to which the crime is feared and hated, predicted utility, and unexplained (perhaps unexplainable) feelings
of appropriateness.

A law that is imposed unequally for equal crimes, or imposed by vigilantes instead of by agents of social institutions, is rightly said to be unfair. Punishment by society protects you from your victim's enraged relatives, the fear of which could last forever, and substitutes solemnity and ceremony for their rage and unpredictable violence. My idea is that nonmoral retaliation simply turns into retributive justice when enough of these empirically describable conditions

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are satisfied; there is no special ingredient, metaphysical, moral, or theological, that must be added. Revenge "turns into retribution" in that where it would be true that I desired out of revenge that C be harmed, if we change the case just by adding the conditions, then it is true that I believe that C deserves to be punished. There are certain other requirements such as my believing the conditions are met, but I need not believe these conditions turn revenge into retribution. People can be mistaken about whether they seek revenge or retribution, just as they can be mistaken about whether they have a moral or a nonmoral belief. When revenge is expressed through institutional ritual and ceremony, the actions of individuals are transformed into actions of a community; the private act of an individual becomes, through ritualization, the moral act of a collectivity. The indignation of the community is expressed in solemnity, black robes, and ritual, which is a transformation and sublimation of anger and invective. If all of this is so, revenge is not eliminated and replaced by something totally different, but only civilized, "sanitized." In distinguishing retributive justice from revenge, we do not take the revenge out of retribution -this cannot be done-but show how circumscribing and institutionalizing retaliation turns it into a moral category, warranting a new name. The socialization of revenge transforms it into justice, but possibly false justice, a problem we must address. The anthropologist Christoph von Fiirer-Haimendorf8 hypothesized the evolution of criminal justice from personal retaliation. There is a moral development from private to public intervention as a society becomes larger, more stable, and, I would add, develops a sense of a common way of life which needs to be protected. Among the primitive Daflas, a non-Hindu tribe in India, Hobbes's war of all-against-all began at the door of each long house, and "justice" was no more than retaliatory raids by relatives. The more complex society of the Gonds, another non-Hindu group in India, created a sense of social identity among as many as forty or fifty villages. The size of Gond society ruled out personal retaliation, Gond public opinion demanding institutionalized procedures because many people now felt they had a stake in the quarrels of strangers; they wanted punishments to have authority, predictability, and to make sense. The size and complexity of Gond society constituted a threshold in the evolution of criminal justice out of personal retaliation. The substitutionof the principleof retributionat the handsof kinsmen by ajudicialprocessand the impositionof legal sanctionsby the commuof moraland nity as a whole, marksa distinctstage in the development
8

Morals and Merit (Chicago: University Press, 1967), p. 105.

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judicial concepts.. . . This development of a public sense of morality and the assertion on the part of society of a right to intervene in private disputes of individuals has nowhere been a sudden process (ibid., p. 105).
III. THE PROBLEM OF JUSTIFICATION

One may object that it is unimportant whether people believe that someone deserves retribution; what is important is whether the belief is true. The two arguments I presented conclude that morally accepting retribution is necessary to a viable moral community, and that revenge, when certain empirical conditions hold, turns into retribution. They do not conclude that people are morally accountable or that they deserve retribution. Of course, if we agree that we ought to have viable moral communities, then it follows that we ought morally to accept retribution: but not even from this can one deduce that anyone deserves retribution. Thus, there are two normative claims one would like to establish. The first, 'We ought morally to accept retribution', is easy, requiring only the premise 'We ought to do what is necessary to flourish and achieve our full humanity'. It is not that I have the slightest idea how one would prove that premise, but only that few would dissent from it. The second normative claim, 'Some people deserve to be punished', is more difficult, and I know of no noncontroversial moral premise from which it follows. What would follow if every claim that someone is morally accountable and deserves punishment is false, notwithstanding that holding people accountable in this sense is essential to the life of a moral community? I am not supposing that all retributive judgments are mistakes in the sense that everyone judged is mad or innocent, but that on philosophical (e.g., utilitarian or deterministic) grounds no one ever is morally accountable. It would seem to follow that we could not justify what is essential for a moral community, and therefore could not justify having moral communities as I have defined them. Following this out would require explaining moral communities without moral accountability, or arguing that we ought not live in moral communities, or that we should become extinct. Another possibility is that what is essential to the life of a moral community is holding people morally accountable, whether or not they really are morally accountable. Where then do we stand? I have not argued for the claim, 'People sometimes are morally accountable and deserve punishment', but I have given what appear to be utilitarian reasons for the claim, 'We ought to hold people morally accountable and deserving of punishment'. There is a level on which utility is, indeed must be, relevant to our appraisal of any system of social organization. Moral community and

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personal accountability must have utility, relative to other ways people might live, or else both biological and cultural evolution would have favored those other ways. But this speaks to the belief in and not the truth of retribution, if the latter even makes sense. It is equally certain that utility cannot be the reason one accepts retributive punishment, for then it would not be retributive punishment. If we say retribution has utility, we could mean that we have a better society if people falsely believe members of their moral community sometimes deserve to be punished. This is the "noble lie" view. It is, I believe, elitist in the bad sense; the very idea of philosophy seems absurd if philosophers must conclude that the best world is one in which the majority of people must believe what is false. Philosophy surely aims at the discovery of truth by everyone capable of doing so. Moreover, the "noble lie" view presupposes that retribution involves true or false moral propositions, and not just a set of cultural practices. If judgments of desert are not truths or falsehoods, we are not, as social philosophers, telling people to believe what we believe is false. Alternatively, one might argue that retribution has utility just because people insist on it that much, and those deprived of seeing retribution done will suffer more than those who are punished. By this line of argument, anything people want badly enough on nonutilitarian grounds is justified on utilitarian grounds. It may be so, but, if it is so, it is not a way to defend retribution but a reductio of utilitarianism. The practices of racism, sexism, and ruthless competition, if desired so strongly that their deprivation creates more misery than their exercise, have utility; but they are unjust and wrong nonetheless. I do not think it is intelligible to accept my arguments for holding people morally accountable, and at the same time suggest that all judgments of moral accountability are false in the literal sense that they all ought to be rejected. Ruling out the "noble lie" view, our options are (1) some retributive judgments are true, and proven so by arguments philosophers have not yet discovered; and (2) retributive judgments are justifiable independently of the issue of truth or falsity. I think the latter option is more plausible, for supposing all retributive judgments false and therefore to be rejected sounds unintelligible, given the acceptability of my arguments for holding people morally accountable; and it does so prior to our knowing whether or not we can demonstrate the truth of retributive judgments. The idea of retribution I am explaining and defending is not like the old concept of retribution which played little or no role in events: when philosophers rejected retributive grounds for punishment, they usually just substituted utilitarian reasons for the same or very

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similar practices. Can we abandon accountability and retribution as I have explained them, and substitute utilitarian reasons for the same punishment policies and practices? Not in this case, if my argument is correct that holding people personally accountable, and not just punishing them, is necessary for the existence of viable moral communities. But holding people personally accountable is precisely what we abandon when we abandon retribution. In the one case we justify jailing robbers only to keep us safe, after we abandon the idea that robbers deserve jail. In the other case we hold them accountable because of what they did in the past, and not because it will make us safer in the future. I would like to suggest that a retributive judgment is a move in the social practice of retributive punishment. I have argued that the social practice is essential for human social life as we know it. Hence, justifying retributive punishment is not like justifying the particular judgment 'Josef Mengele deserved to be punished', it is like justifying funerals, marriage, or bear dances. And such things can be justified. After the practice is justified, 'Josef Mengele ought to be punished' then may be justified within the practice, in terms of moral and legal reasoning about crimes and excuses. This is not at all intended to be a contribution to the new fashions in "moral realism." Retributive judgments are true or false in at best an honorific sense; they are relative to practices, and social practices are called good because social animals such as we require them for cooperative living. The whole theory comes together more smoothly if some version of nondescriptivism is true. We do not have to worry about the objection that retributive judgments are false if they are neither true nor false. As for the judgment that we should preserve moral communities, I have argued elsewhere9 that fundamental moral judgments are expressions of basic wants that have causes but not reasons; and that these wants turn into moral beliefs in the presence of criteria ("marks of the moral"), analogous to those I have here argued turn revenge into retribution. Holding people morally accountable and punishing and rewarding them is best understood as social ritual such as bear dances or marriage. It makes no sense to say that marriages or bear dances are false, but does make sense to say we ought not to have them. On this view, a mistaken retributive judgment is a defect in a different category from that where we give evidence that a social practice is not utile. It is more like doing the bear dance incorrectly.
ANDREW OLDENQUIST

Ohio State University

9 Normative Behavior, ch. 3.