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Punishment Pluralism

RETRIBUTIVISM: ESSAYS ON THEORY AND POLICY, Mark D. White ed., Oxford University Press, Forthcoming

Brooklyn Law School, Legal Studies Paper No. 215

24 Pages Posted: 11 Nov 2010 Last revised: 27 Jan 2011

Michael T. Cahill

Rutgers Law School

Date Written: September 3, 2010

Abstract

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.

Keywords: criminal law, punishment theory, retribution

JEL Classification: K14

Suggested Citation

Cahill, Michael T., Punishment Pluralism (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. Available at SSRN: https://ssrn.com/abstract=1705682

Michael T. Cahill (Contact Author)

Rutgers Law School ( email )

NJ
United States

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