I am grateful to Adil for his insightful comments. Adil was quite generous to serve as a discussant when I presented an early draft of my article at the 2013 Law and Society Association Annual Meeting and so am I especially thankful that he has taken the time to participate in yet another exchange.
Adil agrees that retributivism is an incomplete theory of punishment and that non-retributive considerations can outweigh retributive reasons to punish. Adil’s takes issue, however, with the particular role and weight that I assign to retributive considerations. In so doing, Adil raises several important points, some of which involve nuances that my article does not expressly address. Nevertheless, I believe that his points are consistent with my argument, and that my analysis can, or already does, incorporate them.
At the outset, it’s important to emphasize an important difference in focus between Adil’s comments and my article. Unlike Adil, I am not interested in defending the best view of retributivism. Instead, I am primarily focused on exploring how different understandings of retributivism could approach international criminal law. In particular, what I describe as a “good reason retributivism,” is my attempt to identify how retributivism can operate in the real world as a plausible, affirmative rationale for punishment. As I explain in my response to Mark Drumbl, the label reflects my attempt to distill something that is already present in retributive theory rather than to propose a novel approach to punishment. In other words, retributivists might disagree about whether there is a moral obligation to punish the deserving, or about whether deserved punishment is a good, while nevertheless agreeing that, practically speaking, retributive reasons operate along the lines that I have described.
Adil’s principal critique is that “I view moral responsibility for past wrongdoing [as] merely one good reason to punish among others, a reason that competes on equal terms with good reasons not to punish.” On Adil’s account, by contrast, desert is the only reason to punish. Utilitarian considerations favoring punishment play a more limited role: they can defeat utilitarian considerations disfavoring punishment (thereby defeating the defeaters), but they cannot provide an affirmative reason to punish.
This is an elegant and interesting way to put it, but am I having trouble identifying the difference between Adil’s “only reason retributivism” and what he describes as my “one good reason retributivism.” On my account, desert is both necessary to punishment and provides an affirmative, prima facie reason to punish. (Hence, I am not sure why Adil believes that I embrace a purely “negative retributivism” that lacks this affirmative function.) My good reason retributivism does not contemplate that utilitarian considerations could justify punishment all by themselves without support from retributive considerations. As with Adil’s approach, “retributive reasons . . . serve a unique and indispensible function in the justification of punishment.”
How then does Adil’s account differ from my own? Perhaps the difference lies in the fact that I, unlike Adil, do not specify that utilitarian considerations favoring punishment can only act as “defeaters of defeaters,” rather than as affirmative reasons to punish. I’m not sure how much this distinction matters, however. If desert provides a necessary, prima facie reason to punish, then what role could these other considerations play except to help defeat arguments opposing punishment? If there is a conceptual difference, I’m not sure it has any practical impact.
Another question concerns the relative weight of retributive reasons. Adil contrasts his “strong retributivism” with my “weak retributivism.” My own view is there is room for disagreement regarding how much weight retributive arguments should carry in the face of countervailing non-retributive reasons. I’m not sure how Adil’s framework provides any greater clarity on this point. Take, for example, Douglas Husak’s observation that the value of punishing the deserving is arguably, from the start, outweighed by the “inevitab[ility] that the practice of punishment will suffer from (at least) each of the following three deficiencies: It will be tremendously expensive, subject to grave error, and susceptible to enormous abuse.” This argument would seem to be entirely compatible with Adil’s approach: In Adil’s terms, it could well be that retributive reasons are never enough to overcome these three defeaters, and that the practice of punishment will always require additional non-retributive defeaters of defeaters to support the retributive reason to punish.
My idea that desert might merely play a tie-breaking role in justifying punishment was inspired by Husak’s example. My point is that even if one thinks that retributive arguments are, by themselves, readily defeated by the negative consequences of punishment, they can play still a powerful role in situations where the balance of non-retributive considerations both favoring and disfavoring punishment yields no clear answer. It strikes me that international criminal law often involves uncertainties of this nature. Of course, Adil is correct that if the retributive reasons to punish are too weak, then they cannot play even this tie-breaking role.
Otherwise, I very much appreciate Adil’s reflections on both consequential retributivism and the distributive component of retributive justice. These will require further reflection, but I do find them compelling.