Retributivism and consequentialism

Notes for March 6

Main points

We reviewed Kant and Bentham’s views on punishment.


Consequentialists hold that right and wrong depend on the consequences: the right action is the one that produces better consequences than all the alternatives while those actions that do not produce the best consequences are wrong.

Utilitarianism is a version of consequentialism. What is distinctive about it is the way it measures the consequences. An outcome is good to the extent that it produces feelings of pleasure and bad to the extent that it produces feelings of pain.

The general object which all laws have, or ought to have, in common, is to augment the total happiness of the community; and therefore, in the first place, to exclude, as far as may be, every thing that tends to subtract from that happiness: in other words, to exclude mischief. (Bentham, §1)

Punishment is always a bad thing for a utilitarian: it produces pain. So in order to justify punishment, a utilitarian has to show that the effects of punishment outweigh the pain it causes. They typically appeal to the effects that punishment has on crime. If punishment deters crime and reforms the criminal, it might prevent enough pain to outweigh the pain that it causes.

Even then, a utilitarian will always look for an alternative to punishment that could produce similarly good results without inflicting pain. There is nothing desirable about punishment for a utilitarian, even when it is inflicted on someone who most people would say deserves it.


The problems facing utilitarian rationales for punishment stem from the lack of connection between desert and punishment on the utilitarian view.

Thus utilitarians might endorse punishing the innocent, if that would serve to deter crime. For similar reasons, they might endorse disproportionately harsh penalties.

They might also favor uneven penalties in which two people who commit the same crime get different punishments. It could work out for the best to do that. But that strikes most people as unfair.

We spent a fair amount of time talking about whether things would really work out like that for the utilitarians. If punishment is decoupled from guilt, for example, there will be little reason to comply with the law: you could be punished whether you comply or not. And, as Kenny and James pointed out, if punishments are too severe, people will just give up or commit worse crimes than they otherwise would. “Since I will get ten years in prison for one robbery, I might as well keep committing them!” That gives the utilitarian good reason to keep punishments in line.


Kant was a strong retributivist. He thought that punishment should be given to people who deserve it and only to those people. The fact that punishment would or would not serve the general welfare was completely irrelevant to its justification, in his opinion.

Punishment by a court … can never be inflicted merely as a means to promote some other good for the criminal himself or for civil society. It must always be inflicted upon him only because he has committed a crime. For a man can never be treated merely as a means to the purposes of another…. (Kant, The Metaphysics of Morals, trans. M. Gregor, Cambridge University Press, p. 140.)

Kant does not face the same problems that Bentham does. Only the guilty can be punished and punishment must be proportional to the crime. So there will not be a problem with punishing the innocent or with unfair punishments.

The problem Kant faces is that his view seems arbitrary and a touch fanatical. What makes a punishment fitting? And why does it make any sense to kill all the prisoners if society is going to dissolve?

Still, many people try to separate the basic idea of retributivism from Kant’s specific expression of it. As we will see later on, there are good reasons for thinking that the alternatives to retributivism would be worse.

Key Concepts

  1. The utilitarian approach to punishment.
  2. The chief problems with the utilitarian approach.
  3. Retributivism and its chief problems.
    This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2014. It was posted March 27, 2014.
    Philosophy of Law