What's Wrong with Harmless Theories of Punishment

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Abstract

Consequentialists believe punishment can only be justified to the extent that it serves a particular goal - generally of reducing wrongdoing. Retributivists believe that punishment serves as an end (and a good) in itself, by 'answering' wrongdoing and giving a voice to society's norms and moral edicts. This Article aims to demonstrate, however, that dividing up the world of punishment theory in this way is not especially useful. By laying out the underlying assumptions of these theories (something infrequently done), we reveal not only several surprising and fundamental similarities, but we also make clear that the most important differences between the two theories rest on particular understandings of what the harms of crime actually are, and whether given punishments address them.

Once people specify which harms are in dispute in a particular policy debate, speaking in terms of consequentialist and retributivist theories adds little, if anything, to the discussion. In fact, it tends to obscure the real issues in contest, and makes it more difficult to see which punishment policies will best redress the harms of crime. To improve both clarity of the discussion and the effectiveness of ultimate solutions, we argue that punishment policy debates should bypass the punishment philosophy stage altogether, and focus directly on contested views about harms. Using philosophical and empirical findings, we describe what this sort of debate would look like both in the abstract and through concrete examples.
Original languageEnglish (US)
Article number32
Pages (from-to)1215-1252
Number of pages38
JournalChicago-Kent Law Review
Volume79
Issue number3
StatePublished - 2004

Keywords

  • Crime
  • Punishment
  • Psychology
  • Philosophy

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