Current Philosophy

0016 Michael Davis. "Harm and Retribution," Philosophy and Public Affairs 15:3 (Summer 1986), pp. 236-266.

Davis suggests the 'unfair advantage principle' as an alternative to the law of talion to serve as a basis for a retributive theory of punishment. He argues that this principle is both different from and better than the 2ex talionis.

Lex talionis itself has been interpreted in various ways. But as it applies to criminal law it means that punishment ought to be proportional to (or limited to) the harm done. The unfair advantage principle takes another approach. The basis of this principle is the idea that the criminal law creates a system of cooperation. People forbear doing what they otherwise might with the expectation that others will show forbearance, too. Someone who breaks the law takes unfair advantage, for he does not carry his share of the social burden. Punishment is intended to prevent him from getting away with this. The actual damage he may have done is a private matter between him and his victim, a matter for civil law. His crime

22 CURRENT PHILOSOPHY

is the taking of unfair advantage, and his punishment should be in proportion to the advantage he took.

It is advantageous for retribution to be freed from the notion of harm, which the unfair advantage principle achieves. Many common crimes commit no physical harm at all. We immediately need to extend the concept of harm to include protection of rights and interests, and not only the interests of individuals but those of society as well. But even these are sometimes quite remote: cases of reckless driving on empty roads, of conspiracy, of solicitation all stretch the idea of harm pretty far. And even so, not every punishment is covered; recidivism is often punished, but it is hard to see what harm the repetition of a crime causes other than the harm that could be caused if it were a first offense.

In other cases there may be a legitimate interest, but a criminal act does not invade that interest, e.g., refusing to help a police officer when asked, misprision of treason, or failure to report a bribe. In all these cases, the law of talion has trouble justifying punishment. But the unfair advantage principle does not. As long as a law has been passed and is generally recognized as having force, even if it is a silly law, the transgressor is punishable because he takes unfair advantage by ignoring a law that others must obey.

Not only does Jex talionis have trouble specifying exactly what should be punished, it also cannot, by itself, specify how much punishment is deserved. It has to call in other principles, particularly those concerning the state of mind of the criminal, in order to assign equitable penalties to vicious acts that (through circumstances) may not have caused much harm, as opposed to reckless acts that (through circumstances) may have caused great harm, even death. Lex talionis can accommodate such problems by importing a theory of excuses, or by other complications. But as we make the principle more and more complex its force is weakened, and so is its ability to guide us. The unfair advantage principle, however, accomodates hard cases with relative ease, because how much unfair advantage an act takes is primarily a function of the social circumstances in which the act was committed.

The last main point that Davis makes is that Lex talionis does not rank crimes according to our intuitions. He cites one of several available surveys to make this point. The unfair advantage principle has the potential to bring intuition, laws and principles into harmony.