Retribution's Role

Abstract

For many decades, criminal law scholars have directed their efforts at finding a philosophical justification of criminal punishment. This endeavor has created a split between retributivists (who deem punishment justified by the wrongdoing of the offender) and utilitarians (who deem it justified by its good consequences such as deterring future crime). This Article suggests that the dialogue between retributivists and utilitarians would profit from a change in the way they frame the central question of what justifies punishment. Specifically, the question could be divided as follows. First, why does the state have a right to punish? And second, why does it choose to exercise that right? The first question is answered most naturally by retributive considerations, whereas the second locates the most natural space for utilitarian values. This framing device, it is hoped, resolves some of the disputes between retributivists and utilitarians while sharpening the focus on those that remain.

Keywords: punishment, retribution, utilitarianism