On Commonplace Punishment Theory

Abstract

This essay examines three examples of commonplace punishment theory. According to innumerable briefs, judicial opinions, and academic articles, punishment requires proof of culpability, especially if one adopts a retributive theory of punishment. Furthermore, according to commonplace punishment theory, culpability is paradigmatically a matter of intentional states of mind. At least three things are wrong with this picture. First, retribution as a function of punishment is insufficient to define a theory of punishment, because the retributive function can be theorized in a number of ways. Second, culpability is an ambiguous term that should be replaced by the more accurate terms “fault in wrongdoing” and “fair candidacy for punishment.” And finally, intentions are not paradigmatic of criminal fault. On the contrary, the seeming outlier among fault concepts, negligence, is closer to the paradigm of criminal fault.