This article argues that the justification of punishment is best conceived as a problem of political theory rather than moral philosophy. Noting the familiar charge that utilitarianism permits framing the innocent, it argues that retributivism is equally vulnerable to the charge that it permits lynching the guilty. It argues that both critiques unfairly attribute lawlessness and dishonesty to the respective punishment theories. As a result, they mischaracterize both as theories about what individuals should do, rather than what acts legitimate government should authorize. In so doing, they disregard how committed the founders of the respective theories were to the rule of law. Both Bentham and Kant assess legal force generally, and criminal punishment in particular, as political institutions rather than moral acts. The article concludes that punishment is never the isolated act of an individual: to punish is to act as an officer or agent participating in a system for enforcing an authoritatively promulgated norm. Even within informal social institutions like the family, punishment is not just coercion. It is a claim to, and a defense of, institutional authority.
Buffalo Criminal Law Review
Punishment Theory: Moral or Political?,
Buff. Crim. L. Rev.
Available at: https://digitalcommons.law.buffalo.edu/articles/293