The construction of Contractualist Retributivism: from the perspective of Rawlsian philosophy

Abstract

Rawls develops a compelling theory of justice within the field of political philosophy. However, his theory remains incomplete, as it primarily focuses on distributive justice and overlooks the issue of retributive justice. The aim of my dissertation is to fill this gap.In the first chapter, I defend Rawls’s theory of justice against criticisms posed by the capabilities approach. Advocated by Prof. Sen and Prof. Nussbaum, the capabilities approach argues that Rawls’s theory fails to provide adequate support for individuals with disabilities and may even exclude them as qualified agents in the social contract. I contend that these criticisms are unfounded. First, if we affirm the substantial and positive nature of the fair equality of opportunity principle, Rawls’s theory can indeed offer sufficient support. Second, Rawls’s emphasis on the basic moral capacity to cooperate, rather than physical or intellectual capacity, ensures that individuals with disabilities are still regarded as agents within the social contract. Therefore, Rawls’s theory of justice remains both defensible and superior. In the second chapter, I examine three moral emotion approaches to punishment: retributive emotion, guilty emotion, and public indignation. I argue that none of these can independently justify legal punishment. Moral emotions must interact with moral principles to play a justificatory role. In this regard, Rawls’s theory—particularly his concepts of reflective equilibrium and the original position—offers clear advantages. The third chapter explores the nature of crime within Rawlsian philosophy. I critique the mono-nature theory of crime, which suggests that all crimes within a social cooperative system can be understood as violations or defections of cooperation. I argue that the dual-nature theory of crime better aligns with Rawls’s views. This theory is also consistent with traditional distinctions in criminal law: mala in se (crimes that violate the preconditions of cooperation) and mala prohibita (crimes that violate the production of cooperation). In the fourth chapter, I examine existing scholarship on the application of Rawlsian philosophy to punishment. I argue that parties in the original position would endorse 11 fundamental principles of punishment. From a deontological perspective, Rawlsian theory justifies these principles, which I refer to as “Contractualist Retributivism”. This hybrid theory combines elements of traditional retributive theory and rehabilitation theory. Through this analysis, I extend Rawls’s theory of justice, incorporating retributive justice into his original framework.