Victims' Rights and Victims' Wrongs: Comparative Liability in Criminal Law

By Vera Bergelson | Go to book overview

2

WHY DOES CRIMINAL LAW NEED A GENERIC
DEFENSE OF COMPARATIVE CRIMINAL LIABILITY?

FAIR AND EFFICIENT PUNISHMENT

The primary reason to consider the role of the victim in the committed offense is a sense that, at least in some circumstances, it affects the liability of the perpetrator and the punishment he should receive.1 Conceptually, theories of punishment fall into two large groups, retributive and utilitarian. For a retributivist, punishment is justified because the offender deserves it; for a utilitarian, it is justified if it promotes some societal good.2


Retributivist Considerations

The dominant theory of punishment underlying Anglo-American criminal doctrine is retributivism, according to which punishment is justified by the desert of the offender. Although other goals, such as deterrence, incapacitation, and rehabilitation, may affect penal policies, it is widely recognized that “[j]uridical punishment can never be administered merely as a means of promoting another good either with regard to the criminal himself or to civil society, but must in all cases be imposed only because the individual on whom it is inflicted has committed a crime.”3 Otherwise, the state would be justified in punishing anyone, regardless of fault, as long as that brings about a net social gain.4 The priority of the “just desert” principle is not only theoretical. Research on the psychology of justice shows that the community's principles of punishment are largely retributive5 and that people explicitly name retributivism as the philosophy that should govern punishment in our society.6

In the retributive system of justice, a person may not be punished unless his wrongdoing was accompanied by a culpable mental state7 with respect to

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