The account of punishment in De iure belli ac pacis develops most fully the relationship Grotius understands between strict rights and those claims arising from dignity or merit, which he associates with ‘expletive’ and ‘attributive’ standards of justice, respectively. The purpose of this article is to provide a philosophical reconstruction of two particular puzzles that arise out of the role Grotius assigns to the concepts of right and merit in the theory of punishment. How, in the first place, can a right to punish be legitimated if not on the grounds that the offender merits punishment for the crime? And then, if merit does not provide the grounds for punishment, why must the penalty be strictly limited to what the offender merits? A reconstruction of Grotius’s arguments grounding the right to punish and justifying the role of penal merit brings out the underlying coherence in Grotius’s theory of punishment, while also revealing that the norms of expletive and attributive justice are inextricably linked in Grotius’s system of natural right.
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Saint Augustine, Four Anti-Pelagian Writings, (New York: Catholic University of America Press, 1992), De Libero Arbitrio iii.15.44, quoted at ibp, ii.20.2.3 (note).
See again, van Nifterik, ‘Grotius and the Origin’; and for a helpful discussion on the Scholastic tradition, see Furukawa, ‘Punishment’, pp. 224–25.
Furukawa, ‘Punishment’, pp. 226, n. 27. In support of this reading, Furukawa instances Grotius’s rejection of the Pythagorean teaching ‘that justice is “suffering in return for suffering”…in the sense that he who has injured another with intent and without reasons that sensibly diminish his guilt ought only to suffer the equivalent of the harm he has wrought and nothing more.’ (ibp, ii.20.32.1. See Furukawa, ‘Punishment’, p. 231.) It would seem that Grotius wants to allow teleological considerations not only to be capable of diminishing a criminal sentence from proportion with the crime but also to be capable of surpassing that proportion. If we understand that role of the retributive debt in constraining sentencing, however, we can see that Grotius is not rejecting Pythagorean retributivism for considerations of utility, but rather favoring one retributive principle over another. A close reading of Grotius’s comments on the Pythagorean principle reveals that he is not claiming, in violation of his own principle, that it is proper for an offender to be punished in excess of what her act merits. Rather he says that we should reject the view that an offender ‘ought only to suffer the equivalent of the harm he has wrought’ (my emphasis). The measure of a fair penalty is not, as the Pythagoreans may be read to claim, its proportionality to the consequences of a crime—the harm or suffering it brings about. Nor can these consequences be equated with the crime’s merits, for the question that Grotius takes himself to be answering in this section of the work is whether ‘the meritum of punishment may be extended to include a greater harm than the sinner has actually inflicted.’ ibp, ii.20.32. Where Grotius differs with the Pythagoreans is not in maintaining that punishments may exceed merit, but in asserting that merit may exceed the crime’s consequences. He is not making an exception to a retributive principle that both of them avow; he is defending a different retributive principle. The proportion Grotius is after is not measured in suffering for suffering, but as he says at the outset, ‘a balance is aimed at between the guilt (culpam) and the penalty.’ ibp, ii.20.2.1.
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The account of punishment in De iure belli ac pacis develops most fully the relationship Grotius understands between strict rights and those claims arising from dignity or merit, which he associates with ‘expletive’ and ‘attributive’ standards of justice, respectively. The purpose of this article is to provide a philosophical reconstruction of two particular puzzles that arise out of the role Grotius assigns to the concepts of right and merit in the theory of punishment. How, in the first place, can a right to punish be legitimated if not on the grounds that the offender merits punishment for the crime? And then, if merit does not provide the grounds for punishment, why must the penalty be strictly limited to what the offender merits? A reconstruction of Grotius’s arguments grounding the right to punish and justifying the role of penal merit brings out the underlying coherence in Grotius’s theory of punishment, while also revealing that the norms of expletive and attributive justice are inextricably linked in Grotius’s system of natural right.
All Time | Past 365 days | Past 30 Days | |
---|---|---|---|
Abstract Views | 464 | 75 | 6 |
Full Text Views | 198 | 3 | 0 |
PDF Views & Downloads | 58 | 7 | 0 |