The document discusses the contradictory views of retributive and consequentialist theories of punishment from an evolutionary perspective. While humans have an innate desire for retribution, evolutionary theory suggests punishment originally served the consequential purpose of eliminating "free-riders" from groups. This frames retribution as an illusion, calling into question justifications for punishment. From a materialist view, the purpose of criminal law is to ensure cooperation through re-educating or eliminating the uncooperative, founded on biology and neuroscience concepts. Theories of punishment are fragile when considered alongside physicalism and the rapid evolution of natural sciences.

1. Submission to Academia Letters
Theories of punishment from an evolutionary per-
spective: a contradiction.
EDUARDO JOSÉ SIQUEIRA
The first form of punishment was retributive punishment. The ancestors of
humans were retributive creatures, not because there were complex doctrines
regarding ethics or the good of retribution as there are today, but because they
were compelled to retribute by their brains.
Retributive feeling emerges when one believes that something wrong, unjust,
or inappropriate has been done against an individual or group.
The evolutionary thesis for moral intuitions, in general, would be that hu-
mans who developed morality passed their genes on while those who did not were
extinct. Having morality was useful because it created reciprocity and a guaran-
tee of cooperation, strengthening bonds beyond the family group. Large groups
can conquer more, hunt larger animals, protect themselves against smaller
groups, and find more available partners (genetic variety) for more optimal
reproduction. [1]
Groups that had a greater capacity for cooperation had an advantage when
in conflict with other groups. By eliminating these groups, early humans made
sure that the genes that made cooperation possible - the genes that enable the
capacity for moral judgment, were passed on, while humans who did not possess
it were slowly eliminated. Their elimination did not only occur between-group
conflicts but within the groups themselves those who lacked the capacity for
morality were eliminated through retribution. [2]
There is evidence that retributive sentiment may have been responsible for
the elimination of humans without access to morality, since they were excluded
from cooperative society, either through death or banishment, as punishment for
being free riders. A group of primitive humans that has negative feelings against
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2. a free-rider can exercise punishment and through this ensure cooperation, either
by making him cooperate or by excluding his genes from that group. [3]
Punishment is inherent in a moral system. Without it there would be no way
for early humans to ensure its enforcement, humans gain much from cooperation
and needed the means to ensure it and make sure it was as efficient as possible.
However, this feeling was experienced and not rationalized. The great advantage
of feelings over rationalization is that they offer immediate response. [4]
The retributive feeling is just another tool of human evolution, written in
our genes, inescapable. Just as we evolved, for example, to be bipedal, we
also evolved to experience and apply retribution as a response to immorality or
amorality. [5]
It is peculiar that the evolutionist thesis turns retributive punishment into
consequentialist punishment. If humans have evolved to feel retribution against
individuals who attack values relevant to the collective as a means of exclud-
ing them from society then this retributive intuition serves a consequentialist
purpose of eliminating free-riders and corrupters from society and ensuring the
participation of all in the cooperative system. In this case retribution as an end
in itself is false - humans would only be led to believe this, but the real purpose
of retribution would be consequentialist. [6]
Here is the contradiction. The purpose of punishment is both retributive
and consequentialist. Humans cannot escape the retributive feeling, but they
feel it for consequentialist reasons hidden in genetics. So which of the theories
should be followed when rationalizing and devising a philosophy of punishment?
Moreover, even consequentialist theories could be accused of serving the orig-
inal evolutionary purpose rather than the consequences they rationally hope to
achieve. It doesn’t matter how one punishes and what the rational justification
for punishment is as long as it occurs anyway. If it occurs, its original pur-
pose has been fulfilled, whether its justification is theological, ethical, or some
complex and sophisticated punishment theory.
The basic premise of retribution is simple: the commission of an offense is
enough to justify punishment. If the evolutionary theory proves to be true then
retribution is not retribution, it only appears to be. An illusion of the human
mind. This in itself already attacks one of the presuppositions of retribution
which is the value of the penalty in itself. If the value of punishment is evolu-
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3. tionary it is not a value in itself, even if we are led to believe by our brains that
it is. We punish because at some point in the very distant past it helped our
ancestors to pass on their genes. [7]
This is known as a debunking argument, an argument that exposes a theory
as false using its original origins and functions. [8]
It is natural to conclude that punishment has no intrinsic value, only con-
sequential value. But you can’t ignore the way humans see the world. Punitive
thinking, whether in its retributive or consequentialist form, will take hold in
the human mind. We will find various ways to justify punishment rationally,
we will devise sophisticated theories just to cater to this human feeling and try
to hide it under a cloak of rationalization.
Humans live and feel this way, even if all this is a farce it is still a human
need to be met. A physiological need, which generates changes in the brain,
and therefore in the way we perceive the world. Even the greatest rationalist
will feel a retributive impulse, it is a natural response to certain stimuli.
So after all, is punishment retributive, consequentialist, or both at the same
time? Does it matter? I came across these questions while writing the article
“criminal law and physicalism” and I am having a hard time answering them
until today.
To summarize, the contradictory situation goes like this: humans feel an
emotional desire to pay back, and as society develops they create the crimi-
nal law as the rationalization and optimization of retribution. As criminal law
develops humans devise consequentialist theories to further optimize the appli-
cation of punishment. However, consequentialism was present from the very
first moment, but it was a hidden “genetic will” that was only revealed from
the evolutionary theories.
The true purpose (or original purpose) of criminal law then it is about re-
educating those who can be re-educated and adapted to society and eliminating
those who cannot. In other words, the purpose of criminal law from a materi-
alist perspective is to ensure cooperation among humans through education or
elimination of those who are not cooperative enough.
This purpose is the only one that makes sense from a materialist perspective
for the reason that it is founded on material concepts and the natural sciences
such as biology and neuroscience.
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4. Theories of punishment when placed before physicalism are in a very fragile
position, and this is not yet given the attention it deserves by philosophers.
The rapid evolution of the natural sciences can compromise outdated beliefs
regarding the purpose of punishment, and without material to reflect upon this
the administration of punishment can be compromised.
[1] JOYCE, R. Evolution of Morality. 1. ed. Cambridge: The MIT
Press, 2006. [2] GREENE, J. Moral Tribes: Emotion, Reason, and the
Gap Between Us and Them. 1. ed. London: Penguin Books, 2013. p. 186.
[3] JOYCE, 2006, p. 142. [4] WIEGMAN, I. The Evolution of Retribution:
Intuitions Undermined. Pacific Philosophical Quarterly, v. 98, n. 2, p.
193–218, 2017. [5] JOYCE, 2006, p. 147. [6] WIEGMAN, 2017, p. 20. [7] Ibid.,
p. 10. [8] Ibid., p. 3.
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5. References
GREENE, J. Moral Tribes: Emotion, Reason, and the Gap Between
Us and Them. 1. ed. London: Penguin Books, 2013.
JOYCE, R. Evolution of Morality. 1. ed. Cambridge: The MIT Press,
2006.
WIEGMAN, I. The Evolution of Retribution: Intuitions Undermined. Pacific
Philosophical Quarterly, v. 98, n. 2, p. 193–218, 2017.
Academia Letters preprint.
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