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This paper proposes a retributive argument against punishment, where punishment is understood as going beyond condemnation
or censure, and requiring hard treatment. The argument sets out to show that punishment cannot be justified. The argument
does not target any particular attempts to justify punishment, retributive or otherwise. Clearly, however, if it succeeds,
all such attempts fail. No argument for punishment is immune from the argument against punishment proposed here. The argument does not purport to be an argument only against retributive justifications of punishment,
and so leave open the possibility of a sound non-retributive justification of punishment. Punishment cannot be justified,
the paper argues, because it cannot be demonstrated that any punishment, no matter how minimal, is not a disproportionate
retributive response to criminal wrongdoing. If we are to hold onto proportionality—that is, proportionality as setting a
limit to morally permissible punishment—then punishment is morally impermissible. The argument is a retributive argument against
punishment insofar as a just retributive response to wrongdoing must be proportionate to the wrongdoing. The argument, that
is, is concerned with proportionality as a retributive requirement. The argument against punishment is set out on the basis
of a familiar version of the ‘anchoring problem’, according to which it is the problem of determining the most severe punishment
to anchor or ground the punishment scale. To meet the possible criticism that we have chosen a version of the anchoring problem
particularly favourable to our argument, various alternative statements of the anchoring problem are considered. Considering
such statements also provides a more rounded view of the anchoring problem. One such alternative holds that the punishment
scale must be anchored not just in the most severe punishment, but in the least severe punishment as well. Other alternatives
hold that it is necessary and sufficient to anchor the punishment scale in any two punishments, neither of which needs to
be the most or least severe punishment. A further suggestion is that one anchoring point anywhere along the punishment scale
is sufficient, because it is possible to ‘project’ from such a point, so as to determine the correlative punishments for all
other crimes, and so derive a complete punishment scale. Finally, the suggestion is considered that one can approach the issue
of a punishment scale ‘holistically’, denying any distinction between anchoring and derived (or ‘projected’) punishments. 相似文献