The moral justification of retributive punishment by reference to the notion of balance.

There is a school of retributive punishment theory that seeks to justify punishment by reference to the notion of balance. Retributive theories typically refer to the past crime as being the single event justifying intervention. The specific retributive theories considered claim that punishment is justified because it restores a rightful equilibrium upset by that crime. I contend that this school of ‘balance theories’ can be traced within enlightenment philosophy through the works of Immanuel Kant and Georg Hegel to the present day. It is my further
contention that none of the theories considered is successful in justifying punishment. Both Kant and Hegel rely on formal notions of balance and fail to prove that punishment is in fact an appropriate mechanism for the restoration of equilibrium. The twentieth century writers propose a substantive notion of balance in terms of rights/freedoms wrongly appropriated by the criminal (and
hence denied to all other members of society). They claim that punishment is justified because of its ability to re-appropriate wrongly taken rights/freedoms, hence restoring the rightful equilibrium. I contend that these theorists fail to justify punishment because they fail to identify the exact locus of imbalance caused by crime. I propose that Alan Gewirth’s rights theory is sufficient to ground categorical human rights and, hence, categorically binding laws. I conduct an analysis of the imbalance caused by crime in terms of Gewirth’s theory and propose, what I believe to be, an original aspect of right disturbed by the criminal’s action: dispositional interest in the value of right. It is my thesis that this is restored by punishing the criminal and that, given the importance of rights, punishment is imperative. Punishment is therefore justified by reference to the idea of restoring an equilibrium upset by crime. This is a retributive justification of punishment.