Retributivist and consequentialist justifications for criminal punishment have contended for generations without either emerging the obvious victor. Indeed, although many commentators have recently announced a retributivist renaissance, it is perhaps more accurate to observe a growing scholarly attraction to "mixed" or "hybrid" theories. And yet most extant mixed theories strike many as unsatisfactory for either of two reasons. The best known mixed theories assign retributivist arguments a too-marginalized role relative to their consequentialist competitors. Others, that avoid this perceived failing, lack hard edges: They assert that desert and good consequences are jointly necessary to the justification of punishment but offer little shape or structure to their inter-relationship.
This paper sketches a mixed theory that avoids these pitfalls. It gives retributivist and consequentialist accounts closer to co-top billing, while assigning each a distinct role in the argumentative logic. It accomplishes this task by attending with seriousness to the point of departure for virtually the entire scholarly literature on the justification for criminal punishment. Almost invariably, contributions to that literature start by observing that "punishment stands in need of justification". So-called theories of punishment are, accordingly, efforts to meet that need. Precisely because these theories are situated ab initio within an argumentative dialectic, one might expect their persuasiveness to depend, in part, on how fully and satisfactorily they understand the proposition to which they aim to respond. Surprisingly, however, the vast literature on punishment has given remarkably short shrift to the question of what is meant and entailed by a demand that punishment be justified. This paper seeks to rectify that oversight by analyzing both what it means to demand justification for a given practice and how such a demand can be satisfied. Once armed with a richer understanding of the logical structure of justificatory argumentation, we are better able to see how a mixed theory of punishment might plausibly emerge.
Punishment, Justification, Rights, Retributivism
Berman, Mitchell N., "Punishment and Justification" (2008). Faculty Scholarship at Penn Law. 2348.