The Unified Theory of Punishment
34 Pages Posted: 22 Sep 2020
Date Written: August 7, 2020
Most of the history of the philosophy of punishment is about our making choice of which theory to support and defend against all the rest. Over time, there have been several attempts aiming to bring two or more theories together in new hybrid formulations. This penal pluralism can be too quickly dismissed as conceptually contradictory. At face value, there is a clear and undeniable clash between, say, supporting retributivism and consequentialist views like deterrence or rehabilitation.
For example, the punishments that retributivism might support as ‘deserved’ may lack or run counter to what might cause some desired effect. Traditionally, the way this clash has been handled most frequently – as seen in Chapter 5 – is to say the justification for deciding who to punish is governed by one goal (e.g., typically retributivist desert) and the amount of punishment distributed to any deserving person is determined by a second, different goal (e.g., usually deterrence). In giving each goal a different space, they avoid confrontation. However, what this formula gains in practicability it loses in showing any theoretical coherence. As we have seen, if desert is so important to justify punishment, why is it irrelevant to setting its amount? And what necessary connection exists between them holding the two together as one integrated theory? For these reasons, critics have claimed that hybrid theories are unstable at best and incoherent at worst. Given the way most are formulated, it is easy to agree – but yet it would be a serious mistake to write off the possibility and plausibility of hybrid theories if they might overcome those concerns.
This newly rewritten chapter for this second edition introduces and defends a new hybrid theory: the unified theory of punishment.1 Instead of taking a side between retributivist and other positions, the unified theory is an attempt to show how multiple penal goals can be brought together coherently in a single framework, or what might be called a ‘grand unifying theory’ of punishment succeeding where others have failed. I will argue that not only is the unified theory possible, but that it is most compelling and best able to address the complexity of criminal cases and deliver multiple benefits in a measure and evidenced way, providing a new way of expanding restorative practices as well.
The structure of this chapter is as follows. First, it begins examining penal pluralism as found in sentencing guidelines, but lacking any framework for how different penal purposes can be coherently applied in any consistent way. Second, I will provide an overview of philosophers starting primarily with Hegel who first attempted to create a new unified theory. Thirdly, I will next formulate my own model for how a unified theory might work. Key to this model is our ability to evidence whether its overarching aim – of protecting and maintaining rights – is fulfilled in a significant change in my thinking. The chapter then considers several possible objections.
Keywords: Punishment, Model Penal Code, Unified Theory, Penal Pluralism, Pluralism, Retributivism, Deterrence, Costs, Restorative Justice, Expressivism, Hegel
JEL Classification: K00, K39
Suggested Citation: Suggested Citation