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Oliver O'Donovan


Payback

Thinking about retribution.

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 ...

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