Law & Society Blog

Retributive punishment presupposes the existence of a moral community. By moral community I mean a social arrangement that makes moral values real. Moral qualities, qua moral qualities, have no causal power. Yet they are recognizable, either as absolutes or as social conventions. Moral communities create (or detect), observe, and act because of the moral quality […]

I am not saying that punishment should be justified in retributive terms, because retributivism captures some of our intuitions, an argument that would imply a norm, validating empirical evidence as support for a normative claim…. Retributive theories do in fact correctly capture and express certain common emotional reactions to crime and punishment, which explains ‚Äì not justifies ‚Äì their persistence.

Much confusion about the goals of retributivism or the absence of such, stems from statements such as:For retributivists, punishment is not a means to an end, rather, it is an end in itself, for example, as the affirmation of the unchanged persistence of a legitimate normative order, despite the crime.What this really means is that punishment is justified as an expression of a positive value, here, the affirmation of a legitimate normative order…. In other words, the goals of retributivism are very different from those of consequentionalism (one is normative, the other is factual), even though every factual state of affairs brought about by the pursuit of retributivist goals could also serve as an end for a consequentionalist justification of punishment.

He could be killed, mutilated, maimed, brandished, locked up, sent into exile, etc.The collapse of Aristotelian substantive ontology in the late 17th Century (brought about by Galileo, Newton, Leibnitz, and others), also led to a collapse of the corresponding social ontology and its theory of punishment…. Freedom (that is, negative freedom or freedom from), replaced justice as the central criterion of legitimacy.As the new monistic ontology was unable to account for qualitative differences between individuals, the exclusion of the criminal on ontological grounds was no longer plausible.

Drhfk writes:
I am not sure that framing the justification debate in terms of rights against the state for protection is particularly helpful. Those rights, I would argue, are derivative of the state’s right to punish criminals. And whether such rights are morally defensible is the issue. … I do agree with Bloomfield’s observation that the […]

While I greatly appreciate Bloomfield’s addition of the bears that shoot laser beams out of their eyes to the cast of characters that appear in the discourse about the justification of punishment (such as the ubiquitous small-town Sheriff who, in order to prevent a murderous riot, sacrifices an innocent person to the mob), I am […]

Does it matter to the citizens, as the potential victims of crime, whether the state embraces a consequentialist or retributivist theory of punishment? Is a consequentialist theory of punishment even escapable? Responding to the call to re-examine consequentialist theories of punishment, let me take you along a series of steps, starting with my right to […]

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, […]