Theories of theories

Philologically considered, retribution and punishment are not very far removed from each other, the one deriving from a root meaning to "bring back," i.e. harm upon the perpetrator's head, the other from a root meaning to "exchange." Most of what societies do and always have done in response to offense, may be referred to indiscriminately as punishment or retribution. Though lawyers confine talk of punishing to the context of the criminal law, in daily usage it occurs, without a hint of metaphor, in domestic and educational contexts and in organizations with autonomous structures of authority; so that a child may be punished for refusing supper, a student for failing to produce homework, an employee for inefficiency or carelessness. But we speak of punishment, too, when we think of evil consequences that come back on the perpetrator's head all by themselves, without society's exerting itself. When the wicked man falls into the pit which he himself has dug, theists have said that God, too, is an agent of retribution.

It hardly needs to be said that for many decades the concept of retribution was under a cloud. And with its eclipse there arose a habit of talking about it as a "theory." A certain style of textbook, not yet disappeared from our shelves or printing presses, used to explain that there were three "theories of punishment." Alongside the retributive (not, they would imply, the most plausible) they set the "social-utilitarian" and "reformative theories".

That is to say, not only is it possible to think of punishment as "bringing back" harm done upon the doer's head; it is possible to think of it as protecting society, or as making the offender better. And to the extent that we think of it in one of these ways, we were told, we will not think of it in the others, since the three theories compete to explain the same phenomenon. This "three-theory theory" was learned as an axiom by every undergraduate—and, indeed, could be learned in no other way than as an axiom, since the possible justifications for it were so weak.

Briefly, they must be a priori or a posteriori: either the threefold division was necessary because it exhausted all logical possibilities, or it was based on induction from a comprehensive survey of actual theories advanced by actual thinkers. For myself, I never encountered anyone who claimed to have made a survey, while the appearance of exhausting possibilities is quickly dispelled. You can make a division of those affected by punishment along these lines: there is the victim, there is the offender, and there is the rest of society; but this does not license you to conclude that there are three kinds of theory, one for each class of those affected. On the contrary, it sets a condition for the success of any theory that it should take account of all three categories of those affected; for a theory that set out to notice only one of them would be a worthless theory. But, then, the "three-theory theory", holding that every theory of punishment is one of those three worthless kinds is, by implication, a worthless theory, too. It encourages a style of argument that looks like a race of hobbled horses: none of the beasts are capable of finishing the course, so the victory goes to the jockey who knocks his rivals down before his own nag falls at the first jump. But it has had a wonderfully long life in the textbooks.

Yet in recent years the intellectual mood has changed, and legal philosophers are thinking about retribution again. The argument for retribution forms one of the focal points of Michael Moore's recent collection of long and technically demanding essays, bringing together his principal contributions to legal philosophy over a decade.1 It is not a religious argument in any sense. Moore acknowledges that he is no believer, and makes particular moral judgments (on abortion, for example) likely to be unpalatable to a majority of believers. Believers, moreover, appear in a rather unsympathetic guise in his pages, as weak-minded liberals who undermine the moral seriousness of society by loose and self-deceiving talk about forgiveness. Yet in spite of Moore's perceptions on this point, it is a reasonable guess that his advocacy of retribution will meet sympathetic hearers among believers, who, to an extent that fashion may conceal, have preserved a discourse on retribution through the period when such a thing was philosophically tabooed. It demands, therefore, the closest attention, closer than we can give it here; even though, in my judgment, such an exercise should bring believers to a parting of the ways with the new, tough-minded, secular retributivism.

Let us begin by asking what may seem at first a rather inconsequential question, which takes us, however, to the structure of Moore's argument quite quickly: what fate has befallen the three-theory theory in his hands? Answer: it is replaced by a two-theory theory. There are at root, Moore thinks, two "types of theory of punishment," retributive and utilitarian. Some theories incorporate a mixture of the two types, but these are merely unsuccessful compromises with the utilitarian mistake. The truth about punishment requires a theory of the pure retributive type to express it: punishment is undertaken for the purpose of visiting just retribution upon the offender.

This two-way division of the logical possibilities has much more going for it. For it corresponds to two elementary ways in which action—i.e. action as such—can be envisaged. These ways are usually described as "forward-looking" and "backward-looking": action may be seen as setting off in a direction, "pursuing some good" in Aristotle's famous phrase; or it may be seen as closing a circle, setting some prior matter to rest. The metaphor of spatial direction is imaginatively suggestive, but not very clear; and it becomes no clearer if we take it as a metaphor of temporal direction. No action moves toward the future or clings to the past any more than any other action. What is past and what is future can only provide grounds of action as they are present, i.e. as they impinge upon the situation in which our action now takes place. The past is present to action not as past, something over and done with, but as the present reality of unfinished business; and the future is present to action not as future, what is not yet in being, but as the present possibility of new beginnings. It might make better metaphorical sense to distinguish between an "open" and a "restricted space" of action. Is the agent situated, as it were, on empty terrain which invites innovation, or hemmed in by outstanding transactions already begun and still in process? However, metaphors are conservative creatures; so for familiarity's sake let us keep to the "forward-backward" idea, and call the two concepts of action "projective" and "reactive."

When we try to use this conceptual distinction to classify theories of punishment, however, it becomes problematical. For complex action-types are rarely neutral in respect of these two ways of constructing action. "Founding" an institution, "striking" a ball, and "broaching" a question are all necessarily projective. "Enlarging" an endowment, "defending" a wicket, and "answering" a question are necessarily reactive. And so are "punishing" and "taking retribution." The reason for this, of course, though supported by the root meanings of the words, is itself quite independent of philology. It is to do with the practice of punishment, and its conditions of rationality. So the German word Strafe does not come from a root meaning "exchange" or "bringing back," but from one that meant "faultfinding"—also a reactive idea, though rather a different one. Yet the word Strafe has the same semantic reference as "punishment," and what we say about the practice of punishment applies just as well to the practice of Strafe.

To explain why you punish always requires an account of what has gone before. You punish someone for this or that, or else you do not punish at all. It is like anger. It may be perfectly sensible to ask, "What good does it do getting angry?", but only when there is something to be angry at. Someone who is angry at an insult may be imprudent; someone who is angry at nothing at all, whatever is accomplished by it, is simply irrational, perhaps mad. And so, too, one may ask what good it does to punish. But the answer, whether positive or negative, will speak about a further good, one which presupposes the reactive logic of punishment itself. Strange as it may seem, what is wrong with utilitarian theories is not that they are false. What is wrong with them is that they change the subject, talk about something else. Instead of showing us what punishment is, they insist on showing us how it can be fitted into broader contexts of action projectively conceived—e.g., "By punishing crimes, let us found a civil order!" So the only thing to be said about them is: C'est magnifique, mais ce n'est pas la peine!

But, then, if utilitarian "types of theory" turn out not to be theories of punishment at all, what place is there for retributive "types"? They appear redundant; it is like speaking of a "penal theory of punishment." But Moore wants to save retributive theories as a better and truer type of theory than utilitarian ones. To do this, he must conceive of the practice of "punishment" as neutral in respect of the projective-reactive alternative, and of "retribution" as one purported ground, and in fact the correct ground, on which the practice of punishment may be justified. On this construction "punishment" and "retribution," far from being almost interchangeable terms, are quite distinct ideas. The distinction between them is something like the distinction between fact and value: punishment corresponds to a bare "what-we-do" irrespective of why we do it, retribution to a bare "why-we-do-what-we-do" irrespective of what it is that we do.

In this Moore appears to accommodate himself to the formal demands of his opponent, not only the strict "utilitarian" who holds the Benthamite doctrine of the greatest happiness of the greatest number, but any theorist who holds that punishing can be accommodated in a projective concept of action-in-pursuit-of-a-good. But the apologist who undertakes to prove his point on an opponent's ground risks incorporating the op posing view into his case. My suspicion is that Moore's "retributivism" falls victim to precisely this danger. Its initial concession cripples its account of punishment as a reactive institution, forcing it into a line of argument which yields only half, and perhaps the less important half, of what it needs to say, so that the "retributive theory" which he ends up defending is not only weaker, but also rather less generous, than a good account of punishment should be.

Justifying Retributive Justice

This theory, then, undertakes to justify the practice of punishment by showing that it can accomplish some goal. "Punishing the guilty achieves something good—namely justice" (p. 111). That justice is "retributive justice, … a kind of justice that is achieved by the punishment of the guilty" (p. 149). The question is, how, if at all, this kind of justice is in its turn to be justified. Justice is our name for the good order of society as such, and so it is the norm which governs every action of whatever kind which has an effect upon social relationships. It stands to reason that anyone who undertakes to punish, undertakes to punish justly, as it stands to reason that anyone who undertakes to play the piano, undertakes to play musically. (How difficult that may be in either case is another story!) One may speak, therefore, quite sensibly of justice as the "goal" of punishment, as one may speak about it as the "goal" of property-litigation or of political debate; but it is not a goal specific to punishment. So why not achieve the good of justice by some other means less distasteful than punishing the guilty—by negotiation, perhaps, or distribution, or moral reeducation? We need a justification for this special kind of justice, "retributive justice" or, as Moore often prefers, "desert." But how is this kind of justice to be distinguished from any other kind? What difference serves to make justice "retributive"? If we drive a wedge between "justice" and "retributive justice," we reduce justice itself to incoherence. For there cannot be two or more different norms, each of them called "justice," each claiming absolute normativity over social relations. Justice must, after all, be one and the same justice, the doing of right, the awarding of suum cuique (to each his own), or however else we may expound it.

The dilemma facing the retributive theory, then, is this: If it claims that punishment is needed to achieve justice, it is exposed to the rebuttal, "No, because justice can be achieved in a variety of other ways." If it claims that punishment is needed to achieve desert, it is exposed to the rebuttal, "What does desert have to do with justice?" And if it then claims that desert is retributive justice, it has to show that retribution really produces justice. But at that point "justice" be comes the goal, and the difference, "retribution," simply describes the form of action, one of the variety of things that we do which serve justice. And so retribution is interchangeable with punishment once again, and the argument has defeated its own premise. The notion that retribution could be conceived as an end for which we practice punishment collapses in on itself. If retribution is the end of punishment, it is different from justice. If retribution is a difference within justice, justice, not retribution, is the end of punishment, and punishment is the difference which makes justice retributive.

This dilemma over the nature of retributive justice helps us understand a significant strategic decision which Moore has taken—which is to avoid a general theory of justice within which retributive justice can be located, and to build his case upon the intuition of "moral desert" directly. And here we must notice another feature of his theory: although his collection of essays sets itself the clear limits of a "theory of the Anglo-American criminal law," his argument for retributivism is a moral one. Not for him the once fashionable, indeed almost universal, denial of the relevance of morality to the law. In an elegant and masterly introductory essay, laying out in order all the tasks of a theory of criminal law, he pleads that any "deep theory" of the way law operates must take a moral point of view and be founded on moral intuitions: "The only legitimate legislative motivation is one seeking to prohibit morally wrongful action because it is morally wrongful" (p. 67). And he returns to the attack later in an assault upon the "classic liberal" view of the distinction between law and morality, "Taking Aim at Moral Wrongdoing." We are to discover the truth of retributivism by a process of moral reflection in which we find that the retributive justification of punishment is, among all justifications, the only one that coheres with the moral judgments we inevitably form on particular questions. We are all "closet retributivists," approving of retributive practice whether we know it or not. These common moral intuitions, buried under centuries of utilitarian practice and obscured by bad institutional innovations, are the bedrock, as Moore sees it, of his argument. It is a morality strictly independent of any kind of wider belief, religious or political. To build an argument for retributive justice upon morality is to build it on a self-evidencing moral judgment, which requires and admits no foundations of any kind whatever. The goodness of people getting their deserts is a foundational moral good.

There are in principle, Moore believes, two ways in which retributivism may be proved. One is "from below," showing its consistency with our particular judgments. The kind of reason that may be given in justification is to show how it coheres with a range of moral judgments not well accounted for otherwise. This he does at some length with examples from the criminal law. The alternative route is "from above," showing that it derives from some more general theory of justice. It may help if we pause to illustrate this route, which Moore consistently declines to take, from an early and often-cited essay of John Finnis.2 Finnis, rejecting "appeals to unanalysed 'desert,'" follows a suggestion that retributive justice can be shown to be derived from justice-as-fairness. The criminal has seized an unfair advantage over the rest of society, and that advantage must be neutralized. The "unfair advantage" is not the profits of the crime (if there are any—though many crimes yield no profits), for these are neutralized, if possible, by other means than punishment. It is the unfair advantage of criminality itself, "the advantage of … permitting himself an excessive freedom in choosing. … something that his fellow-citizens have denied themselves." This advantage can be nullified only by a subjection of the offender's will to the representative will of society.

The concept of social "benefit" as unrestrained will-act, and of social restraint as disadvantage, is disconcertingly dependent on anarchic voluntarism, making frustrated criminals of us all. The free will-act, we may suggest in illustration of Finnis, constitutes a kind of exchange-currency by which we may correct imbalances in the distribution of social benefits and burdens. Let us name the currency-unit the Autarchy (symbol AU). But the AU economy is run on strictly Distributivist lines, each citizen receiving each year a benefit-credit to consume or trade with, representing a fair share of the Gross National Freedom. The petty criminal has appropriated, shall we say, AU1.00 more than his fair share, to correct which he is debited with AU1.00 by the imposition of a punishment. But the AU economy proves unexpectedly vulnerable to inflation prompted by the arrival of the True Saint, who has learned from the Beatitudes that those who hunger and thirst for righteousness are happy. This secret knowledge allows him to trade in AUs so as to make everybody better off, but himself especially. Every will-act which the True Saint has ever conceived—all of which have to do with ways of serving other people—has been easily gratified, and he had no need to deny himself his ambitions; and so, like a Dickensian capitalist digging wealth out of ash-heaps, he has quickly become an AU-millionaire while those who trade with him, who like to be pampered in unsaintly ways, have ac cumulated AUs less spectacularly, but satisfactorily enough. The problem that sainthood presents to the AU economy is the same as the problem of successful economic enterprise to a distributive socialism, the problem of just imbalance. The favorable imbalance of satisfactions achieved by the millionaire-saint is more just—not merely to him than to everyone—than a balance of satisfactions would be. And this puts in doubt the premise that distributive equilibrium can be the matrix for justice.

It is understandable enough that such an attempt to derive retribution from distribution should be unsatisfying. By trying to squeeze retributive justice in under the distributive umbrella, Finnis has had to trade in a disconcertingly autarchic concept of social benefit, and so make frustrated criminals of us all. But I explore this line of objection, which strikes me as the obvious one, mainly to show how Moore sets off in a quite different direction. It is not the derivation from distribution that troubles him. He is troubled by any derivation whatsoever. He intends to rehabilitate what Finnis dismisses as "appeals to unanalysed 'desert,'" and his refusal to explain that notion in terms of any other is, he thinks, a virtue of his theory, not a weakness. Desert is a foundational notion; it is discerned by moral intuition immediately, not de rived discursively from any other axiom.

The high-point of Moore's exposition, to my mind, is a fine and psychologically penetrating defense of subjective moral intuitions and emotions as "heuristic indicators" of moral truths. There are better and worse emotional states, he argues; some of them distort the moral vision, but others enable and clarify it. Subjective moral feelings may be trusted if the best explanation for them is the moral facts they claim to intuit. They have a prima facie validity, which the objector bears the burden of disproving by offering some naturalistic explanation for them. It is virtuous, not vicious, to feel anger at wrong, and, using Nietzsche to overcome Nietzsche, "we should beware of all those in whom the urge to punish is either actually, or claimed to be, non-existent" (p. 141). Yet although we may gladly embrace his argument for veridical moral feelings, we should not lightly surrender the point from which Finnis starts: "The claim that crime deserves punishment may be taken … as one particular application of, or theorem within, a general theory of political obligation." Even if the sense of moral desert is simply there, that does not mean that it is unrelated to any other intuition about justice, and the task of ordering our moral feelings may still be taken up without denying any of them their properly veridical character.

To address to Moore the question that he freely addresses to others: Does not the claim for the foundational status of the intuition of desert contain in itself the rationalist demand for the commensurability of all experiences, the very demand which "anti-foundationalism" was supposed to escape? It would be better not to confuse veridical intuitions with foundations of arguments. Intuitions are not dismissible, but neither are they self-sufficient; they are open to correlation with each other and with other elements of moral experience. Foundations, on the other hand, lay claim to independence, and, like "fundamental rights," they are al ways competing with each other in a struggle which allows of no resolution. A philosophy which admits unrestricted appeal to them quickly comes to resemble the politics of Ulster, each theory resolutely standing on its own foundation and refusing, as a matter of principle, to enter into discussion with any other. What, in the end, is this in tuition of desert foundational for? For a train of argument that will explain everything else?—but that was the "foundationalism" we had to reject. Or merely for an account of itself?—but then we have not justified retribution.

Which brings us to the point of how differently retributive justice functions in Moore's theory from what we know of any Christian, perhaps any believers' thought. At the "moral" (as opposed to "legal") level of his argument, Moore ought to be considering the totality of relevant moral judgments—which includes not only the gloomy satisfaction that we feel, and, as he pleads, are right to feel, when a criminal gets his deserts, but also the very considerable pleasure we take when someone who was terribly injured forgives the one who has done the injury. That is no part of the criminal law, to be sure—but it is absolutely part of our moral experience and just as much in need of accounting for by any "moral" theory of retribution. In Christian thought retribution is one pole of a dialectic with forgiveness. One reason, indeed, that Christians have insisted on retributive justice (when they have insisted on it) is that if the one pole is lost, the opposite pole will be lost, too. The theological doctrines of forgiven sin, redemption from punishment, reconciliation of the offender with the offended God, those and nothing else are what have held the philosophical notions of desert and retribution firmly in place. But with Moore these notions stand on their own, quite apart from any such dialectic. And this means that they are rather different notions as a result. You cannot wrench them out of such a context without changing their shape and significance.

Retribution and mercy

Critics and defenders of the retributive principle have often found common ground in viewing retribution as an undertaking apart, unlike everything that we normally do within the kingdom of justice, a numinous shrine, as it were, whether a sancturary of the moral law, or a High-Place given over to barbarous rites of vengeance. Yet, if we understand it not as an end but as a practice, and take the wide social base of punishment into our view, looking beyond the criminal courts to the family and other institutions, we may reach the opposite conclusion: retribution is simply the most commonplace thing in the world. "Retributive justice" is like "corrective justice"—justice expressed in the act of correcting social imbalances—or "adjudicative justice"— justice expressed in the act of adjudication. Doing justice, we may say, is the verb, and doing it retributively the adverb, a contextual marker for how justice must be done a great deal of the time, especially when governments do it. It is simply justice done in reaction to wrongdoing. We can think of acts of justice that are purely projective—the term distributive justice highlights their distinctive character; but these (pace a contrary view common among Thomists) are not characteristic of governments. Governments must practice justice as judgment.

When we react to wrong, we direct our activity to several foci of attention: to the victim who is wronged, to the wider society which is scandalized by the wrong done in its midst, to possible future offenders who may be tempted to do the same wrong, but also and always (how could we not?) toward the offender. If we find a lady lying in the street, we set her on her feet. But if she has just been thrown there by a youth who snatched her handbag, we give chase, we lay hands on him, we ask him angrily what he meant by it, and then remember to tell him quickly that he needn't answer, but if he does whatever he says may be cited in evidence. This rather breathless attention to the young man structures our action as a re-action to his action. If we turned only to the victim, and not to the offender, then it would not be true in any sense that we were responding to what he did.

Note the force of this point: it is not a matter simply of how we convey that we are reacting to the offense; it is a question of how we may in fact react. Someone who, like Sister Ludmila in The Jewel in the Crown, makes a practice of picking up people she finds lying in the street, dead or alive, irrespective of how they got there, may be responding to need, but is not reacting to crime. The very idea of "reacting" implies an action "toward" the perpetrator, an act of judgment, favorable or unfavorable, on what he did. And the very notion of an unfavorable judgment implies hostile dealings with him. It is not necessary to say anything particular about causing the offender pain or suffering beyond what is said when we speak of "hostile dealings."

As a matter of fact, for society to act toward someone as an offender is in itself a source of suffering to a moderately sensitive person. "My client has been punished already," says the barrister, pleading before sentence on behalf of some disgraced figure who once held his head high. So the processes of arrest, detention, charge, etc. are already the beginning of punishment—a fact acknowledged by the convention that someone is sentenced to a term of imprisonment may count detention served in awaiting trial to wards the term.

We may say, then, not that punishing the guilty achieves something good, namely retributive justice; but that it does something good, namely judgment. Formalized institutions of retribution are devices to assist judgment by imposing disciplines of investigation, canons of proportion, and so on. Distinctions between criminal and civil law, which are taken as given in Moore's theory, must be held in suspense—not because they are mistaken, but because their importance lies not at the level of moral theory, but at the level of jurisprudence. Clearly, it is not only in criminal law that we punish. Tort law, too, brings public retribution upon those who are identified as wrong doers. If a small child is punished by being put to bed, a student by being kept in school when others go home, and an employee by a reduction of responsibilities and pay, we need hardly balk at the suggestion that someone is punished by being made to pay damages for libel, wrongful dismissal, or negligence. If the lawyers call the offender "liable" rather than "guilty," and the judgment "damages" rather than "punishment," that is a convention to which they are entitled, and which serves a useful purpose in setting apart those cases where judgment is limited not only by the offender's deserts but by the plaintiff's sufferings. Yet we should not imagine that something different is being done morally.

The point to which this argument tends is that the retributive principle is never freestanding or autonomous in concrete acts of judgment. We do justice reactively according to retributive principles, but always in a context which has some projective elements in it, some question of further goods to be achieved or evils to be avoided. At the level of particular judgments criteria of retribution intersect with criteria for projective goods. The question, "what good does it do to punish this person?" is always pertinent, even though in most judicial settings it is very simply answered: "It maintains consistent and predictable judicial institutions." But there are other questions which need to be answered: how severely should this person be punished? for example. That is a question not to be settled solely by the measure of the guilt; it may quite properly take forward-looking considerations into account—the prospect of dying in prison, the likelihood of reoffending, the indications of possible moral amendment, collateral harm to vulnerable and innocent dependents, and so on. At the level of cosmic justice, Christian belief has always known that God's "justice" is at the same time God's "justification," the making right of wrong by witholding retribution, the transformation of the old, unjust order into a new and justly ordered one, an act in which those who have been and are unjust are summoned to be made just.

What grounds can Moore's theory allow for modifying the severity of punishment, or even refraining from it? He allows it as always relevant to ask, "At what cost do we attain some form of justice?" (p.151), and concludes that "trivial immoralities" and "immoralities done in private, by consenting individuals, that are strongly motivated" are "not worth the enforcement costs to criminalize." What kind of "costs" are these that he has in mind? Are they purely economic or welfare costs? Or are they costs to the practice of justice itself? If the former, then to say that we cannot afford punishment in such cases is simply to say that we cannot afford justice—a simple, if sometimes necessary, compromise with the harsh practicalities. If the latter, then the justice of the performance is, in the last resort, determined by a number of convergent factors, of which desert is only one; but that, so far as I can see, is in compatible with the advocacy of desert as a foundational value.

It may be said, perhaps, that the same moral sentiment which demands retribution also limits the scope of its application: we do simply do not have the same feelings about every trivial wrong. But that is not rightly expressed as a factor of high cost; it is merely a factor of low significance. And a reference to insignificance will not do the work that Moore apparently wants of it, which is to provide a good reason for maintaining the conventional liberal ways of distinguishing punishable from unpunishable wrongs. Moore's theory offers no basis for excluding "immoralities done in private, by consenting individuals, that are strongly motivated." Nor does it explain how we may sometimes have to teach ourselves, defying our primary moral intuitions, that an offense which has made us very angry is nevertheless unsuitable for public retribution. Here the neoliberal retributivist, though sworn to subject traditional liberal goods to strict moral excise, can be seen to nod a well-laden smuggler past the customs post.

Nowhere does Moore advance anything like the traditional Christian principle that a duty to punish is always qualified by a duty of moderation. From the thirteenth to the sixteenth century this came to be expressed with the assistance of the Aristotelian category of epieikeia, "reasonableness"; with different expression, however, the same thought had dominated the patristic period of Christianity, and can be traced back to a multitude of biblical inspirations, prominent among which is the story of Jesus and the adulteress in John 8. "The very avengers of crime … quail before the divine judgment, recalling that they have need of the mercy of God for their own sins; and they do not think they do an injury to their office if they show mercy to those over whom they have the lawful power of life and death."3 Mercy is not antithetical to justice; it is a principle necessary to make justice concrete. And so moderation is an aspect of what justice requires: "He is but half a judge, who can do nothing but urge the law, and is not able also to mitigate the rigour of the law when need so requireth," wrote the Puritan William Perkins.4 For judgment has to be a practical way of telling the truth—the truth about the offense, primarily, but the truth, too, about everything that bears upon the offense and determines how serious an offense it is.

An attempt at truthtelling must not become incredible by ignoring its own limitations. The chimerical temptation to which the practice of judgment is prone is to suppose that the question of truth can be narrowly circumscribed. A truth about the criminal in the dock which is not at the same time a truth about the society which nurtured him and which now judges him, is too abstract a truth to be morally persuasive. And so, Perkins argued, no judgment can be truthful that is not at the same time humble both about the capacity of the court and about the morality of society. We are "flesh and blood and full of infirmities," and society cannot endure if we judge with the rigor that an angel might use. But that is not a reason to abandon justice. Justice must shake hands with mercy (cf. Ps. 85:10, understood as a prophecy of the cross in exegetical tradition). The prince's laws cannot be "perfect and absolute" as God's laws are; but the prince may practice a merciful judgment witnessing to the divine work of reconciliation.

The story of Jesus and the adulteress comes onto Moore's horizon, too, in the context of his rebuttal of a series of objections to the retributive principle (pp. 112-5), of which three are of special interest at this point. Along with "He that is without sin among you, let him cast the first stone," Moore sets the plea of "epistemological modesty," that we cannot know the inner secrets of the offender's heart, and the famous saying, Tout comprendre, c'est tout pardonner. As objections to retribution in principle, he is perfectly right to dismiss them. The first, as he says, would "gloss over distinctions," the second exaggerates the extent of our ignorance, and the third "is false." However, the first two of these arguments was historically used with quite a different purport: not to assail the principle of retribution, to which it is beside the point, but to insist on qualifying retributive justice by mercy.

Even the third will point us in the same direction if we quote Mme de Stael correctly: "Tout comprendre rend tres indulgent." The guilt that we share with the offender, the limitations of our knowledge of another's true guilt, these are not mere pieties to allow us to evade unpleasant responsibilities, but real factors in the situation of anyone who tries to punish anyone else. Moore, whose career has been spent in the lecture room, lacks, perhaps, some of that agonizing sense of the dilemmas of the judge's bench so perfectly captured for us by Augustine in the City of God. But these, as Augustine says, are not reasons for refusing to judge. "Clearly, he will take the responsibility. For the ties of human society constrain him; they compel him to accept this duty, which he would think it wicked to neglect."5

Moore's retributivism has no special reason to be harsh and no special reason to be mild. It is not tied to the chariot wheels of lex talionis, which was the fatal error of Kant's retributivism, condemning it to a last-ditch defense of the moral necessity of the death-penalty. There are retaliationists still to be heard in the philosophy of punishment: the burglar deserves to be burgled, the rapist to be raped, and the torturer to be tortured, and all actual punishment of these crimes is a commutation, for decency's sake, of these ideal demands.6 It is not so for Moore, whose notion of retribution rests from the beginning upon the assumption that deserts are determined by equivalences—though in what currency we measure equivalences, he does not tell us.

But in order, finally, to isolate the point of principle, let us present Moore with the question of Heaven and Hell; that is to say, the question of a morally best last state between an injured and just God and his unjust creatures. His theory offers us good reason why such a God would provide a Hell. Not only is punishment not bad; it is a good, and as such to be expected of divine goodness, or, failing that, of the state (p. 152). With the exception of the modern liberal tradition, Christianity has affirmed the same. Hell is no defeat of God, but an outpost of the Kingdom of Heaven. But that is said only in the context of another affirmation: that alongside this good last state we may conceive a better, a Heaven into which forgiven and reconciled sinners are welcomed. This is something which Moore's theory would afford us every reason to doubt.

A suitably appointed Limbo must await those whose offenses are too trivial to merit notice; and on the possibility of a Heaven for unarguable saints, who simply merit reward, a legal philosopher can be excused the need to say anything. But forgiveness does not simply lie outside the scope of a moral discussion of punishment; and Moore's silence about it is eloquent. He notices the virtue of compassion and warns against the vice of vindictiveness; but forgiveness as a practice has no place. A God who appointed a Heaven for forgiven offenders would be, we must infer, an inept sentimentalist, the author of a badly bungled outcome for the moral universe.

Which is why believers may conclude that they should think about retribution without retributivism.

Oliver O'Donovan is Regius Professor of Moral and Pastoral Theology at the University of Oxford. His books include Resurrection and the Moral Order (Eerdmans) and The Desire of the Nations (Cambridge Univ. Press). Most recently, with Joan Lockwood O'Donovan, he has edited From Irenaeus to Grotius: A Sourcebook in Christian Political Thought (Eerdmans).

Footnotes:

1. This large, technical, and acutely argued book contains a great deal besides the theory of retributivism which concerns us here.

2. "The Restoration of Retribution," Analysis, Vol. 32 (1972-2), pp. 131-5.

3. Augustine, Letter 153.8.

4. Treatise of Christian Equitie.

5. Augustine, City of God, 19.6.

6. Cf. The Death Penalty: For and Against, by Louis P. Pojman and Jeffrey Reiman (Rowman & Littlefield, 1998), in which both the rival protgaonists subscribe to the lex talionis.

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