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«Thank you very much for the kind invitation to present the attached paper. Naturally, I will be grateful for any and all reactions. In the event, ...»

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TO: Participants at the Columbia Legal Theory Workshop, Nov. 13

FROM: Mitch Berman

Punishment and Justification


Thank you very much for the kind invitation to present the attached paper. Naturally, I

will be grateful for any and all reactions. In the event, however, that you find yourself with more

objections, worries or puzzlements than you believe can be addressed in our limited time

together, please know that I am especially eager for critical engagement with the argument of Section IV.B, and even more particularly, with the presentation, in that section, of the proposed foundational right to be treated with respect as a person. This is the part of the paper that I have most recently revised. To repeat the obvious, though, I will gratefully welcome critical feedback on any aspect of the paper.

I look forward to our meeting.

Draft (October 27, 2006) Punishment and Justification Mitchell N. Berman*


It is sometimes suggested that philosophical discussions of punishment are plagued by radical dissensus.1 But this is an overstatement. On at least one matter, there is widespread agreement, indeed a consensus approaching unanimity: Punishment stands in need of justification. Very often, this principle constitutes the theorist’s first premise. It is, in any event, a proposition upon which possibly all philosophers of the criminal law are agreed.2 * Bernard J. Ward Centennial Professor in Law, the University of Texas at Austin. For helpful comments on previous drafts, and for profitable conversations, I am grateful to Larry Alexander, John Deigh, David Dolinko, Strefan Fauble, Les Green, Tom Green, Mark Greenberg, Don Herzog, Douglas Husak, Larry Sager, Scott Shapiro, Peter Westen, and workshop participants at the University of Michigan Law School, and the Second Annual International Congress on Law and Philosophy at UNAM.

E.g., Nicola Lacey, State Punishment: Political Principles and Community Values (1988), p.1.

See, e.g., Claire Finkelstein, “Positivism and the Notion of an Offense,” California Law Review 88 (2000): 335-394, p.358 (“Philosophical discussions of punishment often begin with the observation that because it involves the infliction of pain or other form of unpleasant treatment, punishment stands in need of justification.”) (citing works by Feinberg, Benn, Flew, and Hart); R.A. Duff, Trials and Punishments (1986), p.4 (“It is agreed that a system of criminal punishment stands in need of some strenuous and persuasive justification....”); Lawrence Crocker, “The Upper Limit of Just Punishment,” Emory Law Journal 41 (1992): 1059-1110, p.1063 (“Essays on punishment are often promoted as providing a justification for punishment, no doubt because punishment is obviously very much in need of a justification.”); John Kleinig, Punishment and Desert (1973), p.1 (“Punishment is said to stand in need of justification.”); Ted Honderich, Punishment: The Supposed Justifications (1969), p.8 (“one cannot but regard punishment as in need of justification”); C.L. Ten, Crime, Guilt, and Punishment (1987), p.3.

Draft (October 27, 2006) Of course, proposed responses to the need for justification vary more widely than the standard distinction between consequentialist and retributivist justifications might imply.

Consequentialist accounts differ in emphasizing deterrence or incapacitation or norm reinforcement. Retributivist theories are even more diverse. Indeed, there is so little consensus on what retributivism claims that some would define it merely as non-consequentialism.3 Notwithstanding the variation within each broad camp, consequentialist and retributivist approaches face well-known objections. Briefly, consequentialists are thought misguided for denying the intuitive appeal of the idea that wrongdoers deserve to suffer, while their opposition to a practice of scapegoating is condemned as weak and contingent. Retributivists are said to be unable to make clear either why wrongdoers deserve to suffer or why it is permissible for a state institution to inflict suffering even if deserved. They are also deplored as savage or barbaric.

In light of these and other critiques, many scholars have expressed a preference for “mixed” or “hybrid” theories of the justifiability of criminal punishment.4 Admittedly, to attribute widespread attraction to hybrid accounts runs against prevailing fashion given the frequently voiced contention that retributivism, albeit given up for dead a generation or more See, e.g., Joel Feinberg, “What, If Anything, Justifies Legal Punishment? The Classic Debate,” in Philosophy of Law eds. Joel Feinberg & Hyman Gross (5th ed. 1995): 613-617, p.

612. This position is not, however, generally well received. See, e.g., John Cottingham, “Varieties of Retribution,” Philosophical Quarterly 29 (1979): 238-46; R.A. Duff & D. Garland, “Introduction: Thinking About Punishment,” in A Reader on Punishment eds. Duff & Garland (Oxford: Oxford University Press, 1994): 1-34, p. 8.

One extensive yet partial list of theories plausibly characterized as hybrid appears in Crocker, p. 1062 n.8.

Draft (October 27, 2006) ago, is the dominant theory of punishment today.5 But that is hard to credit.6 It is not incidental that the lion’s share of declarations announcing retributivism’s ascendance appear as prologues to scathing critique. With others, then, I would suppose that at least a plurality of contemporary Anglo-American criminal law theorists accept some form of hybrid account.7 The most famous accounts customarily classified as hybrid belonged to John Rawls and H.L.A. Hart. In Rawls’s rule-utilitarian picture, legislators justify criminal justice institutions and practices on consequentialist grounds, while judges justify the punishment of individual offenders on the non-consequential ground that he or she violated a legal command.8 Similarly, Hart described the “general justifying aim” of the institution of punishment as crime reduction, but argued that pursuit of this consequentialist goal is constrained by a principle of “retribution in See, e.g., David Dolinko, “Three Mistakes of Retributivism,” UCLA Law Review 39 (1992): 1623-1657, p. 1623 (“It is widely acknowledged that retributivism... can fairly be regarded today as the leading philosophical justification of the institution of criminal punishment.”); Mirko Bagaric & Kumar Amaraskara, “The Errors of Retributivism,” Melbourne University Law Review 24 (2000): 124-189, p.126. Citations to works proclaiming a retributivist renaissance are collected in Russell L. Christopher, “Deterring Retributivism: The Injustice of “Just” Punishment,” Northwestern University Law Review 96 (2002): 843-976, pp. 845-847 & nn.2-12.

I am not the first to express doubts that retributivism is the dominant theory of punishment among contemporary criminal law theorists. See, e.g., Kyron Huigens, “The Dead End of Deterrence, and Beyond,” William & Mary Law Review 41 (2000): 943-1036, p. 955.

A similar, but stronger, judgment is expressed in Douglas N. Husak, “Why Punish the Deserving?,” Nous 26 (1992): 447-464, p. 452 (asserting that “almost all philosophers appreciate the need to construct hybrid syntheses of retributive and consequentialist elements”). See also, e.g., A. John Simmons et al., “Introduction,” in Punishment: A Philosophy & Public Affairs Reader eds. A. John Simmons et al. (1994): vii-xii, pp. viii-ix.

John Rawls, “Two Concepts of Rules,” Philosophical Review 64 (1955): 3-32.

Draft (October 27, 2006) distribution” that permits imposition of punishment only on “an offender for an offense.”9 A popular cousin view to Hart’s, variously dubbed “negative”10 or “weak”11 retributivism, holds that punishment is justified by its good consequences – consequences realized most especially through the mechanisms of general and special deterrence, incapacitation, and a variety of expressive or communicative functions – but ought to be limited by the desert of the offender.

But all of these views have been criticized for marginalizing retributivism relative to consequentialism.12 This is plainly true of retributivism’s “negative” variant, which treats a wrongdoer’s desert as a side-constraint on pursuit of consequentialist aims and, therefore, is more aptly described as “side-constrained consequentialism”13 than as any form of retributivism. Yet the marginalization of retributivism is even more extreme in the Hartian and Rawlsian accounts, for which it can reasonably be doubted whether there exists any component that genuinely warrants the retributivist label.14 Indeed, the ballyhooed retributivist revival is better viewed, I H.L.A. Hart, Punishment and Responsibility (1968), pp. 8-12.

J.L. Mackie, “Morality and the Retributive Emotions,” Criminal Justice Ethics 1 (1982): 3-10, p. 3.

Hart, Punishment and Responsibility, pp. 230-37; Larry Alexander, “Retributivism and the Inadvertent Punishment of the Innocent,” Law and Philosophy 2 (1983): 232-246, pp. 238George Schedler, “Can Retributivists Support Legal Punishment,” Monist 63 (1980): 185p. 186.

See David Wood, “Retribution, Crime Reduction and the Justification of Punishment,” Oxford Journal of Legal Studies 22 (2002): 301-21.

R.A. Duff, Punishment, Communication, and Community (Oxford: Oxford University Press 2001), p. 11.

For doubts that Hart’s account is fairly described as any sort of compromise with retributivism, see Cottingham, p. 241. It seems to me that, insofar as the basically Draft (October 27, 2006) think, as a reaction against the marginalization of retributivism in even purportedly hybrid accounts than as an effort to turn the tables by marginalizing, let alone jettisoning, consequentialism in return. In other words, theorists have sought to replace hierarchical or “split-level”15 accounts with accounts that give consequentialism and retributivism something closer to co-top billing. Yet the straightforward contention that desert and good consequences are jointly necessary to the justification of punishment – what one scholar has recently dismissed as a “mere conjunction” approach – seems ad hoc or poorly supported.16 More satisfying might be an “integrated dualist” account – a theory that assigns distinct and co-equal roles to retributivist and consequentialist reasoning within the theory’s structural logic. However, no such account has yet appeared, and the possibility of such an appearance has been doubted.17 consequentialist accounts of Hart and Rawls are properly deemed “hybrids,” they are hybrids only with the legalistic form of retributivism (see Feinberg, “What, if Anything, Justifies Legal Punishment,” pp. 613-14), which form few retributivists would embrace.

The term “split-level,” as well as its contrast with “mere conjunction” and “integrated” accounts, which terms I also adopt, comes from Wood (2002).

See, e.g., Hart, Punishment and Responsibility, p. 3 (“[I]t is likely that in our inherited ways of talking or thinking about punishment there is some persistent drive towards an oversimplification of multiple issues which require separate consideration. To counter this drive what is most needed is not the simple admission that instead of a single value or aim (Deterrence, Retribution, Reform or any other) a plurality of different values and aims should be given as a conjunctive answer to some single question concerning the justification of punishment.”); Wood, p. 303. A much more approving view of the additive or conjunctive approach is expressed in John Gardner, “Crime: in Proportion and in Perspective,” in Fundamentals of Sentencing Theory eds. A. Ashworth & M. Wasik (1998), pp.32-33.

For the conclusion that integrated dualism is conceptually unobtainable see Wood, pp.

316-17. A scent of integrated dualism is apparent in Larry Alexander, “The Doomsday Machine:

Proportionality, Punishment and Prevention,” Monist 63 (1980): 199-227.

Draft (October 27, 2006) This paper offers an integrated dualist theory of punishment.18 In doing so, it assumes that the road to a satisfactory account of punishment’s justifiability must start by examining with seriousness the common point of departure already noted – namely, that punishment stands in need of justification. Frequently, although not universally, theorists expend some effort trying to define what punishment is. Very rarely, however, do they attend explicitly to what it means for punishment (or anything else, for that matter) to be “in need of justification.”19 That is a most unfortunate oversight, for, as Hart recognized, “theories of punishment” is an unhappy term because such “theories” “are not theories in any normal sense.... On the contrary,... [they] are moral claims as to what justifies the practice of punishment.”20 Yet more precisely, they are moral claims in response to the proposition that punishment stands in need of justification. If theories of punishment are thus 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.

*** Human practices, like other phenomena, often encompass a core and a periphery.

Accordingly, Part I distinguishes core from peripheral cases of punishment. Part II then seeks to Although the account is dualist, the elements of the argument likely to prove most interesting and contentious arise in support of the role I assign retributivism. So the argument can also be viewed as a rehabilitation of retributivism, though as a necessarily partial one.

Kleinig, ch. 1, is a notable exception. As he put it, to say that punishment stands in need of justification “is not to say anything very helpful, without first saying something about the notion of justification to see what it is, precisely, that punishment is said to be in need of.” Ibid., p. 1.

Hart, Punishment and Responsibility, p. 72.

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