Remember that when we talk about punishment and the 4 theories of it, we are talking about criminal law, the “people” represented by the district attorney vs. Smith.

In civil cases like torts, there is no punishment, and what one does or does not deserve can be found out almost mechanically and with precision.

Smith contends that his landlord Jones owes him his security deposit. Jones either objectively does or does not owe the money, and if he does, then this is how much.

No one is punished. Here, justice is easy and clear-cut. Everyone gets what he deserves, his due, etc. But this should not be called “retribution,” because this term pertains to criminal law only.

This understanding clarifies the reason why we have criminal law in the first place. An objection is that a crime involves a victim, or should. Hence, the victim can always press charges against the evildoer, and this can be handled in a civil trial. The flaw is that sometimes a punishment needs to be inflicted on the aggressor beyond mere restitution. But the benefits of punishment accrue to society as a whole. Hence, society or the state should prosecute some cases which we call “criminal.”

The final question that can be asked is why we need to punish people at all.

In a civil suit, Smith believes that he is in the right, and Jones believes that he is in the right. It’s an honest disagreement. They go before a judge to avail themselves of his wisdom to see who has the better case. Even the loser will enjoy a sort of closure to the dispute in the end.

But if Smith steals Jones’ car, there is malicious intent. Everybody knows Smith is in the wrong, including Smith, unless he is “insane.” Smith may try to hide his crime, obstruct justice, raising the costs of justice in the process. But love or good will is what holds society together. We care what’s in Smith’s heart, because hatred, if allowed to stand, will make life miserable for everyone. It’s not up to us really to seek to reform Smith. But we can at least say: Let him hate, so long as he and others like him fear.


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