Law & Society Blog

Having just finished reading Michael Pawlik’s marvelous new book Person, Subjekt, B??rger (Person, Subject, Citizen), one of the most sophisticated defenses of a retributivist theory of punishment so far in both the English and German literature, I feel compelled to re-examine whether the arguments for a consequentialist theory of punishment are really defective. Most retributivists, and Pawlik is no exception, back into their positions by finding fault with some critical part of the consequentialist account. Negative general and special prevention are said to violate the personality principle, by treating the offender as a means to an end, specifically, as a means to someone else’s end. Positive general prevention, once heralded as an alternative to both consequentialism and retributivism, has turned out to be a useful descriptive theory, but has not fulfilled its promise as a normative theory. Against this backdrop, I would like to examine the question, whether satisfying the personality principle (or any other version of the end in itself test) is really a necessary condition for fully justified punishment under conditions of modernity. I suspect that by combining sophisticated rational actor theories of modern behavioral economics (to build a model of the subject) and system theory (to build a model of society), the implausibilities of most consequentialist accounts can either be avoided entirely or at least significantly mitigated.