Implicitly Normative Punishment Theory

Abstract

This draft is Chapter Two of a book entitled, "A Theory of Just Punishment." One initial premise of the book is that current punishment theory is misguided in two respects. First, ordinary punishment theory tries to provide moral justifications for legal punishment, instead of trying to describe just norms for punishment. This is to work in the wrong direction. A moral justification for punishment will not provide us with a description of norms for just punishment. It will not tell us how to formulate self defense, why provocation manslaughter is a partial defense instead of an offense, or whether negligence is a kind of criminal fault. But to describe just norms for punishment does tell us how legal punishment is morally justified. Second, ordinary punishment theory tries to provide a moral justification by reference to punishment's functions – principally, deterrence and retribution. But legal punishment manifestly serves a large number of functions simultaneously. The functionalist approach makes it necessary to order these many functions, bringing them into conflict, placing one over the other, or denying one or another of them. This war is both pointless and incoherent. Therefore, "A Theory of Just Punishment" takes a fresh start on the problem, attempting to describe just punishment norms. Explaining this fresh start requires a bit of metatheory at the beginning. Chapter Two's contribution to this task is to explain several kinds of normative punishment theory, focusing on implicitly normative punishment theory.

Keywords: criminal punishment, punishment, Hart, Dworkin, reflective equilibrium, moral realism, normativity, justice