Criminal punishment and the pursuit of justice.

Source: (2013) British Journal of American Legal Studies. 2:263-304.

Since the beginning of recorded history societies have punished offenders
while at the same time trying to justify the practice on moral and rational
grounds and to clarify the relationship between punishment and justice.
Traditionally, deontological justifications, utilitarian justifications, or a
mix of the two have been advanced to justify the imposition of punishment
upon wrongdoers. In this article, I advance a new conceptual spin on the
mixed theorist approach to criminal punishment – one that can hopefully
resonate not just among legal philosophers, but also among ordinary citizens,
i.e. the people who are most affected by the criminal law. Distancing
myself from previous scholarship, which has used utilitarian arguments to
point out the shortcomings of retributivism and vice-versa, on the one hand
I attack the philosophical foundations of retributivism (currently the predominant
rationale for punishment) on deontological grounds; on the other
hand I attack the consequentialist rationales on consequentialist
grounds. Concluding that neither approach – as they all fail under their
own standards – is sufficient per se to justify criminal punishment in a liberal
democracy, I argue that a mixed theory approach, which is usually
presented as a matter of preference, is instead a matter of necessity if we
want a criminal justice system that, while still not perfect, can be defended
on both rational and moral grounds. In this sense, retributive considerations
are meant to serve as the normative check on a system that aims at
rationality and efficiency, and it is thus strongly utilitarian in character. I
conclude by arguing that something more than punishment is required if
we want to implement a system that really pursues justice, and I suggest
that a path worth exploring in that regard is the one laid down by restorative
justice. If nothing else, hopefully my blistering attack on retributivism
will serve the purpose of rekindling a debate that seems to have accepted
the dominance of retributivist positions. (author’s abstract)