What is Justice?

What is Justice?

ERIN I. KELLY*

ABSTRACT

Justice demands individual accountability for criminal wrongdoing. It also

aims to achieve socioeconomic justice, democratic equality, and reparations for

historical wrongs. These may seem like separable aims. Nevertheless, I will

make the case for their interconnection. In particular, I will make the case that

a society that aspires to embrace democratic values will relate standards of

individual accountability in criminal law to prospects for achieving social jus-

tice. It will do this by linking the justif‌ication of criminal liability to the benef‌its

of a democratic system of law. Proponents of the retributive theory deny this.

The focus and guiding principle of the retributive theory of criminal justice is

an individual standard of responsibility for wrongdoing. According to the re-

tributive theory, the imperative of individual accountability applies under any

circumstances in which one person wrongs another person, including unjust cir-

cumstances. When a serious moral wrong has been committed, the demands of

a democratically just social order are beside the point of criminal justice. I dis-

agree.

Retributive justice is expressed roughly by the concept of lex talionis: the law

of retaliation. Today we reject the notion that criminal offenders deserve pun-

ishment that resembles their crimes in kind. We do not rape rapists or disf‌igure

people who have scarred others. Yet, many people endorse the idea that crimi-

nal offenders deserve harms proportional in degree to their blameworthy

wrongdoing. In fact, the justice of proportional harming seems obvious to many

people. I do not f‌ind it obvious. I will argue that the retributive theory of crimi-

nal justice neglects the importance of the relationship between the practice of

punishment and the broader requirements of social justice.

TABLE OF CONTENTS

I. RETRIBUTIVE JUSTICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 890

II. THE PRACTICE OF CRIMINAL JUSTICE . . . . . . . . . . . . . . . . . . . . . . . 892

* Erin I. Kelly is Professor of Philosophy at Tufts University in Medford, MA. Kelly received a

Ph.D. in philosophy from Harvard University and a B.A. in philosophy from Stanford University. Her

scholarship focuses on political and moral philosophy, with a particular emphasis on criminal law, its

relation to the realities of historical injustice, and the aspirations of democratic equality. She is the

author of The Limits of Blame: Rethinking Punishment and Responsibility (Harvard Univ. Press, 2018).

© 2021, Erin I. Kelly.

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