Kaufmann meet Hayek on retributive justice; Hayek Kaufmann

The first of Kaufmann's tenets on retributive justice is that "punishments can never be just". The word just is derived from the Latin ius which can be translated as just and as right. To explore what Kaufmann means by his first sentence, let's restate the first tenet as "punishments can never be right".

If Kaufmann's first tenet doesn't ring true for you, my restatement sounds even more off.--What are you saying? Of course it can be right to punish someone for committing a wrong and certainly a WRONG.-- Kaufmann's argument for why punishments can never be just is that they can never be precisely just, i.e., punishments can never be right on. A judge could always shade the punishment a little less or mete out a little more and so whatever is ultimately administered will never be just. Kaufmann's point is not to dismiss retributive justice altogether, but to force us to take personal responsibility for the justice that is meted out and not unthinkingly delegate it to the cosmos.

Hayek approaches justice from the perspective of a "sense of justice". Our sense of justice is an abstract rule of which we are cognizant but nevertheless incapable of articulating in precise terms. In other words, when asked how should a murderer be punished, the abstract rules of our sense of justice cannot specify whether it should be 20 years or 20 years, 6 months, and 4 days, but we certainly feel that 2 years would be too little. Justice is a feeling, which is not to say that it is merely a matter of emotion, but the sensory order of the process is not conscious and hence not articulably precise.

My take is that Hayek and Kaufmann are on the same page with each other. Kaufmann's project is to hold a mirror in front of our faces so that we humbly accept and take personal responsibility that retributive justice is only a sense, no matter what in actuality is meted out. Hayek's is to explain that the way that the sensory order works for justice is the reason why Kaufmann has a project to undertake.