Michael T. Cahill
Rutgers Law School; Brooklyn Law School
September 3, 2010
RETRIBUTIVISM: ESSAYS ON THEORY AND POLICY, Mark D. White ed., Oxford University Press, Forthcoming
Brooklyn Law School, Legal Studies Paper No. 215
This book chapter speculates that contemporary understandings of retribution have come to see it either as a good, or as a deontological side constraint on action, rather than as an affirmative deontological duty, as earlier versions saw it (or purported to see it). Yet if retribution is formulated as a good or a constraint, it loses its centrality as a basis for punishment: under such a view, retribution may be one consideration, among others, favoring (or opposing) punishment, but it cannot justify punishment except in a very narrow sense. Accordingly, characterizing retributivism as a "theory of punishment," which was never entirely apt, now seems untenable. As an alternative, I favor an overtly pluralistic scheme in which various principled and practical considerations, including retributivist considerations, may inform punishment policy at both the systemic and the individual level. To this end, the chapter surveys the most significant arguments for and against punishment, as a first step toward an account that properly balances the competing ends at stake instead of privileging one over the rest.
Number of Pages in PDF File: 24
Keywords: criminal law, punishment theory, retribution
JEL Classification: K14
Date posted: November 11, 2010 ; Last revised: January 27, 2011
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