Conclusion

Abstract

The basic philosophical movements of this book have been the following. First, a general analysis of responsibility was set forth, one that was grounded in and based on some of the fundamental concepts of contemporary moral responsibility theory, and one which can be used in criminal justice contexts and is congruent with the basic elements of responsibility under U.S. criminal law. The analysis provides philosophical substance to the content of the notion of desert. Desert is not some self-justified basic or primitive concept that is understood only by way of retributivist intuitions. Rather, the notion of desert is based at least in part on the concepts of moral and legal responsibility. I stopped short of ensnarling readers in the quagmire of brilliant philosophical discussions that separate various contemporary philosophers of moral responsibility theory. Instead, I provided a view of responsibility with which most such philosophers could concur. Even if it turns out that the analysis provided herein is incomplete or somewhat incorrect, the retributivist position I present and defend herein is not contingent on the plausibility of a particular analysis of moral responsibility. For whatever (positive) responsibility theory is in the end the best (most plausible) is the one to which my version of retributivism and desert must subscribe. Moreover, my theory of responsibility and punishment does not assume that there must be responsible agents, only that there are, in all likelihood, some. For all I know, each case of wrongdoing is such that it is so mitigated that punishment would rarely be justified. My purpose herein has been to articulate and defend analyses of responsibility and punishment for individual and collective agents such that, to the extent that any such agents are sufficiently responsible for harmful wrongdoings, they are to be punished in approximate proportion to the harms they wrongfully caused to others. In other words, persons who as liable agents commit harmful wrongs against others ought to get what they deserve within the confines of practicality and reasonableness. For what a harmful wrongdoer deserves just is a function of what she is responsible for, considering possible mitigating factors obtaining, and what measure of hard treatment (both in kind of punishment and amount of it) ought to be meted out to her. Thus my theory of retributivism is positive in the sense that it holds that only those who are deserving of punishment ought to be punished. Yet it is also a form of negative retributivism in that it holds that the innocent should never be punished.