Legal Commentary

This post falls into the "trumpeting my own work" category (though it might also bear some tangential relation to Ken Simons's interesting series of recent posts on consequentialism). I'm getting it out of the way early so I can move on to asking some questions about legal education, which I'm hoping to spend most of my time here doing.

Anyway, here's the point. Most criminal theorists discuss retributive justice as a deontological duty: a categorical obligation to impose punishment on those who deserve it, and avoid punishing those who don't. (Dan Markel would object to my equation of retribution and desert, but never mind that right now. In fact, I will tend to use the terms "retribution" and "desert" interchangeably, partly for the sake of mixing things up but mainly to annoy Dan.) I think a better way, and perhaps the only realistic way, to view retribution is as a consequentialist good: a positive value we should seek to maximize, but which can (and must) be traded off against other consequentialist goods. (Note: I mean that retribution should be viewed as an intrinsic good, not just as having instrumental value toward achieving some other good such as welfare or utility. Consequentialism can admit of a plurality of goods, and I think retributive justice is one.)

Why does it matter whether we see retribution as duty or good (assuming we care about it at all)? For (at least) two reasons, I think. First, the bad news, at least from the perspective of retribution's status in criminal theory. If retribution is not an affirmative obligation, then it can't provide a (fully) justificatory account of punishment. One explanation of the justification for having a criminal-justice system (i.e., a system of state-imposed punishment) is that our duty to seek retributive justice obliges us to create such a system. But if retribution is "merely" a good rather than a duty, there is no such obligation. Many things are good (e.g., health, fine art, my friend Dave's fried chicken), but that doesn't mean the government is required to provide them all.

But, on the other hand, viewing retribution as a good rather than a duty also provides a means (otherwise missing, I think) of giving it a role as a real-world guide to policy. While the retribution-as-duty view offers a justificatory theory of punishment, it also (and for the same reasons) fails to provide a prescriptive theory of how to design and implement a criminal-justice system. It offers retribution as an ideal, but does not explain how working legal institutions are supposed to seek that ideal in a world where resource constraints and insufficient information make it impossible to impose retributive punishment on everyone who merits it. In the real world, we need to set law-enforcement priorities, and the retribution-as-duty view provides no clear criteria for doing so (or else provides criteria that seem clearly unworkable or silly).

In short, the retribution-as-duty view can support a moral theory, but not a legal system. Hence, being a lawyer rather than a philosopher (as is, perhaps, all too apparent to any philosophers who read my work), I support the perspective of "consequentialist retributivism."