But before we leave the question of penalty-fixing it is worth asking why it should be so often thought that Retributive theories in this area are necessarily barbarous. The charge springs from the misconception, which I mentioned before, that there is only one such theory—the lex talionis. In fact, all that a Retributive theory of penalty-fixing needs to say to deserve the name is that there should be a proportion between the severity of the crime and the severity of the punishment. It sets an upper limit to the punishment, suggests what is due. But the 'repayment' (so to speak) need not be in kind; indeed in some cases it could not be. What would the lex talionis prescribe for a blind man who blinded someone else? Even in those cases where repayment in kind of violent crime is possible there is no reason why we should not substitute a more civilized equivalent punishment; the scale of equivalent punishments will, of course, vary from society to society. There is also no reason, having got some idea of the permissible limits of a man's punishment from Retributive considerations, why we should not be guided in our choice of the form of the penalty by Deterrent and Reformatory considerations.
(K. G. Armstrong, "The Retributivist Hits Back," Mind, n.s., 70 [October 1961]: 471-90, at 486 [italics in original])
Note from KBJ: Do you see Armstrong's point? Lex talionis (the law of retaliation) is but one species of the genus retributivism. It is fallacious, therefore, to infer "retributivism is barbarous" from "lex talionis is barbarous." That is like inferring "dogs are vicious" from "Jones's pit bull is vicious." The main rival of retributivism, as a theory of punishment, is utilitarianism. A utilitarian who argued against lex talionis would not thereby have argued against retributivism.
