This essay, written as a contribution to a forthcoming volume on the philosophical foundations of the criminal law, challenges the longstanding dominant framework for classifying justifications for criminal punishment. The familiar binary distinction between consequentialism and retributivism is no longer most perspicuous, I argue, because many recognizably retributivist theories of punishment employ a consequentialist justificatory structure. However, because not all do, it might prove most illuminating to carve the retributivist field in two – distinguishing what we might term “consequentialist retributivism” (perhaps better labeled “instrumentalist retributivism”) from “non-consequentialist retributivism” (“non-instrumentalist retributivism”).
Whether or not it is ultimately persuasive, consequentialist retributivism is a fairly straightforward theory of, or justification for, punishment. Roughly, it rests on the claims that the suffering of wrongdoers is good or valuable in itself and that the state has reason (of some weight) to bring about this good or valuable state of affairs. Non-consequentialist retributivism is more difficult to formulate and defend. So this essay critically assesses some of the more promising routes to its vindication. It argues that the split between consequentialist and non-consequentialist retributivism reduces most naturally to a disagreement regarding precisely what it is that wrongdoers deserve – what is (to coin a term) wrongdoers’ “desert object.”
Philosophers of the criminal law – retributivists and anti-retributivists alike – commonly say that, on the retributivist account, wrongdoers deserve “to suffer” or “to be punished.” Very rarely do theorists treat these two formulations as meaningfully different, let alone do they explain why one formulation of the retributivist desert object is more accurate than the other, or why some third formulation is preferable to both. But if, as is commonly contended, desert is central to retributivism (in both consequentialist and non-consequentialist guises), efforts to articulate and defend wrongdoers’ desert object in careful and precise terms might make it easier for persons with retributivist sympathies or sensibilities to choose intelligently between the two kinds of retributivism.
retributivism, consequentialism, punishment, desert
The Philosophical Foundations of Criminal Law
Berman, Mitchell N., "Two Kinds of Retributivism" (2011). Faculty Scholarship at Penn Carey Law. 2353.