Friday, May 3, 2013
Since the beginning of recorded history societies have punished offenders while at the same time trying to justify the practice on moral and rational grounds and to clarify the relationship between punishment and justice. Traditionally, deontological justifications, utilitarian justifications, or a mix of the two have been advanced to justify the imposition of punishment upon wrongdoers. In this article, I advance a new conceptual spin on the mixed theorist approach to criminal punishment – one that can hopefully resonate not just among legal philosophers, but also among ordinary citizens,i.e. the people who are most affected by the criminal law. Distancing myself from previous scholarship, which has used utilitarian arguments to point out the shortcomings of retributivism and vice-versa, on the one hand I attack the philosophical foundations of retributivism (currently the predominant rationale for punishment) on deontological grounds; on the other hand I attack the consequentialist rationales on consequentialist grounds. Concluding that neither approach – as they all fail under their own standards – is sufficient per se to justify criminal punishment in a liberal democracy, I argue that a mixed theory approach, which is usually presented as a matter of preference, is instead a matter of necessity if we want a criminal justice system that, while still not perfect, can be defended on both rational and moral grounds. In this sense, retributive considerations are meant to serve as the normative check on a system that aims at rationality and efficiency, and it is thus strongly utilitarian in character. I conclude by arguing that something more than punishment is required if we want to implement a system that really pursues justice, and I suggest that a path worth exploring in that regard is the one laid down by restorative justice. If nothing else, hopefully my blistering attack on retributivism will serve the purpose of rekindling a debate that seems to have accepted the dominance of retributivist positions.