Friday, August 20, 2021
Brian Murray (Seton Hall Law School) has posted Restorative Retributivism (University of Miami Law Review, Vol. 75, 2021) on SSRN. Here is the abstract:
The current criminal justice moment is ripe for discussion of first principles. What the criminal law is, what it should do, and why society punishes is as relevant as ever as communities reconsider the reach of the criminal law and forms of punishment like incarceration. One theory recently put forth—reconstructivism—purports to offer a descriptive and normative theory of the criminal law and punishment while critiquing the ills of the American system. It comprehends the criminal law and punishment as functional endeavors, with the particular goal of restitching or “reconstructing” the social fabric that crime disrupts. In particular, reconstructivism is a social theory of the criminal law, prioritizing solidarity rather than a moral conception of the common good. Drawing from a line of thinkers, from Aristotle to Hegel to Durkheim, reconstructivism claims to be distinctive and uniquely equipped to explain what the criminal law is and what it should do, as opposed to retributivist or utilitarian based theories. It claims to more richly account for the social effects of punishment that plague the current system, unlike duty-based theories of retribution and the cold instrumentality underlying utilitarian-based punishment that has made criminal justice impersonal and shortsighted.
This Article critiques reconstructivism’s core claims and presents an alternative theory of punishment that contains insights for the current moment. While reconstructivism critiques the failures of common punishment theories to account for the social nature and effects of punishment, it fails to account for forms of retributivism that are not deontological. In particular, teleological retributivism, or more simply phrased, “restorative retributivism,” already contains the descriptively and normatively restorative elements present in reconstructivism. Its conception of the common good rests on the inherently social nature of human affairs and accounts for the solidarity prioritized by reconstructivism. Whereas the reconstructivist prioritizes the socially and culturally constituted, the restorative retributivist seeks to emphasize shared moral intuitions, which social realities inform, but not to the exclusion of other considerations. This distinction has implications for how each theory might critique modern criminal law and punishment. For example, restorative retributivism would view the expansion of the criminal law—both in terms of substance and administration—skeptically, and the modern approach to punishment—both in theory and its carceral form—as contrary to human dignity and too focused on controlling risk rather than promoting individual and social flourishing. This critique, like reconstructivism, has much to offer in the era of the carceral state and can help to reorient punishment to the broader good. It shifts the focus away from control and risk management to dignity and flourishing, leaving room for community involvement, humility in judging, and de-criminalization. In sum, reconstructivism and restorative retributivism are relatives, and both helpfully emphasize the social implications and consequences of the criminal law and punishment.