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Philologically considered, retribution and punishment are not very far removed from each other, the one deriving from a root meaning to "bring back," i.e. harm upon the perpetrator's head, the other from a root meaning to "exchange." Most of what societies do and always have done in response to offense, may be referred to indiscriminately as punishment or retribution. Though lawyers confine talk of punishing to the context of the criminal law, in daily usage it occurs, without a hint of metaphor, in domestic and educational contexts and in organizations with autonomous structures of authority; so that a child may be punished for refusing supper, a student for failing to produce homework, an employee for inefficiency or carelessness. But we speak of punishment, too, when we think of evil consequences that come back on the perpetrator's head all by themselves, without society's exerting itself. When the wicked man falls into the pit which he himself has dug, theists have said that God, too, is an agent of retribution.

It hardly needs to be said that for many decades the concept of retribution was under a cloud. And with its eclipse there arose a habit of talking about it as a "theory." A certain style of textbook, not yet disappeared from our shelves or printing presses, used to explain that there were three "theories of punishment." Alongside the retributive (not, they would imply, the most plausible) they set the "social-utilitarian" and "reformative theories".

That is to say, not only is it possible to think of punishment as "bringing back" harm done upon the doer's head; it is possible to think of it as protecting society, or as making the offender better. And to the extent that we think of it in one of these ways, we were told, we will not think of it in the others, since the three theories compete to explain the same phenomenon. This "three-theory theory" was learned as an axiom by every undergraduate—and, indeed, could be learned in no other way than as an axiom, since the possible justifications for it were so weak.

Briefly, they must be a priori or a posteriori: either the threefold division was necessary because it exhausted all logical possibilities, or it was based on induction from a comprehensive survey of actual theories advanced by actual thinkers. For myself, I never encountered anyone who claimed to have made a survey, while the appearance of exhausting possibilities is quickly dispelled. You can make a division of those affected by punishment along these lines: there is the victim, there is the offender, and there is the rest of society; but this does not license you to conclude that there are three kinds of theory, one for each class of those affected. On the contrary, it sets a condition for the success of any theory that it should take account of all three categories of those affected; for a theory that set out to notice only one of them would be a worthless theory. But, then, the "three-theory theory", holding that every theory of punishment is one of those three worthless kinds is, by implication, a worthless theory, too. It encourages a style of argument that looks like a race of hobbled horses: none of the beasts are capable of finishing the course, so the victory goes to the jockey who knocks his rivals down before his own nag falls at the first jump. But it has had a wonderfully long life in the textbooks.

Yet in recent years the intellectual mood has changed, and legal philosophers are thinking about retribution again. The argument for retribution forms one of the focal points of Michael Moore's recent collection of long and technically demanding essays, bringing together his principal contributions to legal philosophy over a decade.1 It is not a religious argument in any sense. Moore acknowledges that he is no believer, and makes particular moral judgments (on abortion, for example) likely to be unpalatable to a majority of believers. Believers, moreover, appear in a rather unsympathetic guise in his pages, as weak-minded liberals who undermine the moral seriousness of society by loose and self-deceiving talk about forgiveness. Yet in spite of Moore's perceptions on this point, it is a reasonable guess that his advocacy of retribution will meet sympathetic hearers among believers, who, to an extent that fashion may conceal, have preserved a discourse on retribution through the period when such a thing was philosophically tabooed. It demands, therefore, the closest attention, closer than we can give it here; even though, in my judgment, such an exercise should bring believers to a parting of the ways with the new, tough-minded, secular retributivism.

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