The ideology behind retributive punishment is fundamentally flawed, argues Richard Oerton.

I have been a solicitor for more than 55 years – I’m within sight of my 80th birthday – and for all that time, sadly, I have been at odds with the attitudes towards crime and punishment which prevail within my profession.

Long ago, largely through letters and articles in the legal press, I advocated the legalisation of homosexual conduct. No one agreed with me. One solicitor accused me of nostalgie de la boue and one editor was so outraged that he refused to publish my letters, yet nowadays gay people can fulfil their natures in ways that are perfectly legal and may even form the basis of a marriage. By similar means, I argued against capital punishment.

Again, I did so in the teeth of opposition, yet now this barbaric ritual is long gone.

These memories and many others came to mind as I read ‘Punishment in criminal law’ by Dan Hyde. Noting that ‘justice for the victim has traditionally recognised the need for retribution to balance the books’, he asserts that too much emphasis is given nowadays to an offender’s rehabilitation (here he takes a swipe at the Howard League for Penal Reform, of which I’ve been a member for even longer than I’ve been a solicitor, and of whose journal I was once book reviews editor).

He says the justice system ‘focuses on the defendant and not the victim’ and regrets that ‘there are no enforceable rights or procedures that hand any real power or role to victims’, adding: ‘We acknowledge the need to protect, support and listen without committing to anything.’

To what exactly, I wonder, does he think we should commit? The ideology behind retributive (as distinct from deterrent) punishment is that offenders should suffer, or suffer more, simply because they have made others suffer – so as, in Hyde’s words, ‘to balance the books’. Let’s not be mealy-mouthed, this is in essence a call for vengeance.

In fact, some victims and victims’ families do not echo this call (all honour to them), but Hyde may well be right in thinking that most of them do. If I were one of them I might echo it myself. But in what sense are they right to do so? And is there really a pair of scales in which to balance the murder of a loved one (or of someone whom no one loved) against the length of a prison term?

Deterrent punishment may be unavoidable – there is not space to discuss this here – but no plea for retributive punishment could be sustained except upon the basis that the offender deserves it: no one would advocate it if they thought it undeserved. And this brings us to the heart of the problem. I shall go to my grave (or the crematorium) without the slightest doubt that such punishment is not deserved.

Hyde refers to the case of ‘15-year-old Will Cornick, who brutally murdered his schoolteacher Ann Maguire in front of classmates and was found to be sane and lacking in remorse’. Do we or don’t we believe that this dreadful act must have a causal explanation? Yes we do, you may say, and the causal explanation is that Cornick is wicked.

But this is just name-calling and no explanation at all. Why is he wicked? The only real explanation must lie with our old friends heredity and environment. They combined to build his character – or, if you prefer, to build his brain – in such a way that it gave rise to this appalling act. Cornick is not self-created. He did not pull himself up by his own bootlaces. Like all of us, he is the product of a process. In his case it went seriously wrong and none of us would change places with him for all the tea in China.

Ah, you may say, but what about free will? Well, you tell me: what part do you think ‘free will’ could play in this situation? Here is Cornick, saddled with a wholehearted desire to do what he did and with no qualms about doing it. He cannot pluck out of thin air some moral prohibition which he does not possess, and why would he try?

Neuroscientists and philosophers increasingly combine to declare ‘free will’ an illusion. In truth it is a nonsense concept rather like a square circle, and the harder you think about it – if you really do think about it – the less sense it makes. It cannot form a basis for retributive punishment.

In Erewhon, Samuel Butler suggests that we normally approach criminals ‘with that contemptuous tone which would seem to say, “I, if I were you, should be a better man than you are”.’ And so we do. But if I were really you – the product of exactly the same biological inheritance and exactly the same environmental influences – then I should behave exactly as you do, even if you happen to be a serial killer, even if you happen to be Will Cornick.

Luck alone has saved me.

Richard Oerton is a retired solicitor who has worked in private practice, in legal publishing and at the Law Commission. Details of his book The Nonsense of Free Will are available at his website.