Volume 18

What is Justice?

by Erin I. Kelly

Justice demands individual accountability for criminal wrongdoing. It also aims to achieve socioeconomic justice, democratic equality, and reparations for historical wrongs. These may seem like separable aims. Nevertheless, I will make the case for their interconnection. In particular, I will make the case that a society that aspires to embrace democratic values will relate standards of individual accountability in criminal law to prospects for achieving social justice. It will do this by linking the justification of criminal liability to the benefits of a democratic system of law. Proponents of the retributive theory deny this. The focus and guiding principle of the retributive theory of criminal justice is an individual standard of responsibility for wrongdoing. According to the retributive theory, the imperative of individual accountability applies under any circumstances in which one person wrongs another person, including unjust circumstances. When a serious moral wrong has been committed, the demands of a democratically just social order are beside the point of criminal justice. I disagree.

Retributive justice is expressed roughly by the concept of lex talionis: the law of retaliation. Today we reject the notion that criminal offenders deserve punishment that resembles their crimes in kind. We do not rape rapists or disfigure people who have scarred others. Yet, many people endorse the idea that criminal offenders deserve harms proportional in degree to their blameworthy wrongdoing. In fact, the justice of proportional harming seems obvious to many people. I do not find it obvious. I will argue that the retributive theory of criminal justice neglects the importance of the relationship between the practice of punishment and the broader requirements of social justice.

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