Retributive fairness or “benefit and burden” theories of punishment start from the assumption that individuals seek to achieve certain goals and that they generally choose reasonably efficient means to do so. Some goals can be achieved unilaterally, others are pursued more efficiently through cooperation with others. Enter society as a cooperative venture. The participants agree on certain rules which, if universally obeyed, will yield greater benefits than a state of non-cooperation. The common denominator of all rules is that they impose a burden of self-restraint upon the participants, as certain actions are no longer permissible. Some rules may go further and require active participation, for example paying taxes to finance a protective force. As long as the benefits from the mutual agreement (e.g., peace) outweigh the burdens (e.g., taxes) and the net benefit is greater than that of any other possible course of action (e.g., emigration), it is rational to stick to the agreement. So far, these premises are shared by many consequentialists.
What if a participant refuses to cooperate, presumably for marginally greater personal gain? The non-cooperator takes a free ride on the cooperative venture. He or she reaps the benefits but refuses to share the costs. Here is where retributivists and consequentialists part company.
Retributivists find moral fault with the non-cooperator. Free riding provides him or her with an unfair advantage. Punishment is morally justified to restore the status quo ante of a fair distribution of benefits and burdens. Fairness theories are equilibrium theories, underwritten by a normative premise of equality, in that the departure from a normatively desired state requires corrective intervention to restore the conditions of that state. In contrast, consequentialists see the free rider as a threat to the continued enjoyment of the benefits of cooperation by others. Nothing is said about fairness. Consequentialists call for punishment simply to ensure that the gains from cooperation exceed the opportunity costs. (Put differently, the threat of punishment makes criminal careers, on the whole, unattractive, relative to other uses of time and effort.)
The first step in evaluating the viability of retributive fairness theories, is to clearly define what is meant by the gains from non-cooperation. Most writers agree that those gains are not merely the loot; they are not what (if anything) the non-cooperator gains materially or emotionally from the crime. Rather, the relevant gain is defined in relation to the burden imposed by the cooperative arrangement. That burden is self restraint in the pursuit of one’s interests, a self-policed restriction of the freedom to choose. The gain from non-cooperation is therefore the evasion of self-restraint, that is, permitting oneself “an excessive freedom in choosing.” (John Finnis). Note that in contrast the benefits from the cooperative arrangement are more tangible, among them utility gains from trade and a safe and secure environment.
What are the main criticisms of the fairness theories? I will focus on three that I find most persuasive.
(1) Fairness theories are “one crime” theories, as in every instance the moral wrong is the evasion of self restraint. That puts petty theft and murder on the same conceptual plane. (A problem also encountered by contract theories, as Hegel was among the first to observe.) Consequently, the connection between the wrong, the evasion of self restraint, and punishment as a reaction to that wrong is tenuous at best. Some have proposed to impose a special burden on the non-cooperator to compensate for the unfair advantage in terms of evading self restraint, enjoyed by the non-cooperator. That special burden, or so the argument goes, would restore the equilibrium of benefits and burdens. But why is that plausible, beyond a superficial rhetorical level? Initially, the wrong (evasion of self restraint) was defined in relation to the burden (exercise of self restraint). A commensurable special burden would thus require greater than normal self restraint from the non-cooperator. Fines or imprisonment do not fit that bill. While they are unquestionably burdens, they are no longer on the same plane with the wrong and the burden as defined initially. (That said, one could imagine a system that imposes special requirements in terms of self restraint on the criminal, as is the case, for example, with probation and suspended sentences.) Other writers have proposed to withhold the benefits of the system from those who fail to refuse to carry the burden of self restraint. Here the “one crime” nature of the fairness theories causes problems. Removing all benefits of the legal order – arguably, a logical consequence for committing the one wrong – seems a disproportionate reaction to the evasion of self-restraint with respect to, say, the prohibition against theft. And removing the protection of the specific norm broken by the non-cooperator also leads to strange consequences. (Imagine the police protecting the thief from assault, while others loot his apartment with impunity.)
(2) As the non-cooperator’s wrong is the evasion of self restraint, he or she is a free rider, someone who enjoys the benefits of an arrangement without paying his or her share of the costs to maintain it. Is this a plausible account of a criminal wrong? The problem is that characterizing self restraint as a burden and evasion of that restraint as the wrong, implies that everyone would wish to do as the non-cooperator did, provided that non-cooperation was more advantageous than cooperation. The resentment felt by others vis-a-vis the non-cooperator is mixed with (in fact, is hardly distinguishable from) envy. (Matt Matravers). This critique goes to the heart of the fairness or benefit and burden theories. Evasion of self restraint is seen to badly mischaracterize the nature of the criminal wrong. The moral wrong from the crime is not in the unequal distribution of benefits and burdens, the wrong is in the disrespect for the moral standing of others, it lies in the coercive interference with spheres of freedom from arbitrary non-dominance, to borrow a term from Philip Pettit.
(3) As equilibrium theories, fairness or benefit and burden theories aim to restore the status quo ante through punishment. The underlying assumption is that the distribution of benefits and burdens prior to the crime was just, or at least more desirable than the distribution is after the crime. That may not always be plausible, as Jeffrie Murphy has famously pointed out. At the very least it shows that fairness theories cannot be independent of a broader, underlying theory of (distributive) justice.
Of course, the above sketch cannot hope to do justice to the nuanced discussion about the merits of all the various flavors of fairness theory. That said, the structural flaws underneath the initial rhetorical appeal seem to fatally undermine the enterprise, at least with respect to proposing a fairness theory as an independent justification of punishment. Any account of legitimate punishment (assuming that there is such an account), must be rooted in a broader theory of justice or freedom. Such a theory must at least provide: (i) a theory of the subject; (ii) a theory of society; and (iii) a theory of the good, however ultimately defined. Fairness theories of punishment fall short of those demands.
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