Retribution, the dictionary tells us, is the dispensing of punishment for misdeeds. Derived from the Latin re tribuere, it literally means to pay back. We humans have strong retributive instincts, and it is often said that this behaviour arose as a product of our evolution as social beings: the threat of retribution enforces social norms, and was among the features that increased the likelihood of cooperation among members of society in the early years of human evolution. Given that cooperation confers significant adaptive advantages to the group, retributive norms flourished, and whether via genes or enculturation, the desire for retribution has been passed on to us.
The value of retributive impulses in the modern world is more difficult to discern. We humans are noted for having the ability to not only act in a manner that is instinctive, but also to reflect upon the propriety of our actions. Amongst philosophers, retribution is often contrasted with consequentialism, the notion that the response to a misdeed should produce the best result for society. Consequentialism is possible because the modern human brain is able to reason, and by so doing we are able to anticipate near, medium and long-term futures: we can decide whether the best response to a misdeed is retribution, education, or even doing nothing at all. At different times, different responses may be called for. What matters most to the consequentialist is not the payback but rather the outcome. The tension between retribution and consequentialism is a hot button issue in the field of neurolaw, where neuroessentialists argue that it is time to rethink the concept of punishment, while traditionalists suggest that deterrence remains the best way of organizing civil society.
The dilemma of whether to pursue retributive or consequentialist actions is relevant not just to individuals, but to nation states as well. Mutually assured destruction, the cold-war military policy with regard to nuclear weapons, is perhaps the best example of retribution as an effective deterrent. Including vanquished Germany in the Marshall Plan, whose objective was to rebuild Europe as a bulwark against Russia, was consequentalist, and it too was successful. Today of all days, it is appropriate to reflect upon nations pursuing retributivist and consequentialist policies.
Ten years ago, when four airplanes were converted from civilian transport into missiles, much of the world was justifiably horrified. The perpetrators were quite clear about their desire to draw the ‘far enemy’ into a quagmire, and, as it turns out, they succeeded. A coalition of forces, led by the U.S., attacked Afghanistan with overwhelming force. Many cheered, driven at least in part by the very retributive instincts described above. Fewer cautioned that there may be alternative ways to respond, that the consequences of invading Afghanistan, not to mention the related War on Terror, merit careful consideration.
With the passage of time, the ramifications of pursuing retribution as a response to the crimes of September 11th have become apparent. The perpetrators have been scattered, losing sanctuary in Afghanistan and hunted internationally; many have been killed, few have been brought to justice for their crimes. In this sense, the retributive impulse has been satisfied. But retribution is only part of the story. Negative consequences are legion; the top of my list is that civil liberties, the crowning achievement of the Enlightenment project, have been curtailed, and a society that thrived on the basis of the openness of its institutions has been transformed into one that is suspicious, frightened, and fractured as never before. Remarkably, these very concerns were voiced the day after the attacks when the editorial page of the New York Times cautioned:
Americans must rethink how to safeguard the country without bartering away the rights and privileges of the free society that we are defending. The temptation will be great in the days ahead to write draconian new laws that give law enforcement agencies — or even military forces — a right to undermine the civil liberties that shape the character of the United States. President Bush and Congress must carefully balance the need for heightened security with the need to protect the constitutional rights of Americans.
The paths that nations take in pursuing what they perceive as their interests are complex, and the last decade has been thornier than most. One outcome is that the political schism between left and the right is more acute today than at anytime in recent memory. It is hard not to conclude that at least part of the friction derives from diverging worldviews: some hold tightly to the sentiment that retribution is always right and proper, while others value reasoned consideration of consequences.
Hat tip to Roland Nadler for illuminating me on some of the finer points of the retribution-consequentialism debate.