1. Utilitarians
When used without care, the label "utilitarian" can apply to anyone, even self-declared opponents of utilitarianism. For example, in the previous chapter we saw that for Marx, punishment is an instrument used by the ruling class to defend itself so that it may maintain itself: punishment, that is, is useful in preserving the ruling class. But Marx is no utilitarian. His aim is not to justify the practice by appealing to principles of utility. Nor should we necessarily call utilitarians all those who, by showing its use for society, do mean to justify the practice of legal punishment.[4] Unless I indicate otherwise, I shall reserve the label "utilitarian" for those who justify the practice of legal punishment by appealing to some principle of utility or some calculation of net utilities. Probably all practices have or once had a use or function. But whether the practice is justified by some principle of utility is another matter.
1.1 Jeremy Bentham
The classic exponent of utilitarianism is Jeremy Bentham, and one of his greatest works lays out a utilitarian justification of legal punishment.[5] For Bentham, the principle of utility is the ground of all moral actions. It is a natural principle that lacks any further ground,[6] and it is not to be questioned: "Systems
[4] For example, René Girard or Hans von Hentig—see chapter 2, Section 3. Girard argues that legal punishment is a functional equivalent of ritual sacrifice and serves as an outlet for violence, an outlet necessary to the survival of society. Von Hentig argues that punishment serves as a means of selection and security.
[5] Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (1789; reprinted New York: Hafner Press, 1948). In citing this I refer to Bentham's own chapter/section numbers.
[6] Ibid., ch. 1, section 11.
which attempt to question it deal in sounds instead of sense, in caprice instead of reason, in darkness instead of light."[7] For Bentham, our privileged guide is
that principle which approves or disapproves of every action whatsoever, according to the tendency which it appears to have to augment or diminish happiness of the party whose interest is in question.[8]
Bentham believes that human beings all, implicitly or explicitly, consent to this principle, which calls on each of us to calculate the pleasures and pains that result from an action we contemplate taking:
Gross ignorance, they will say, never troubles itself about laws, and passion does not calculate…. [But] men calculate, some with less exactness, indeed, some with more: but all men calculate. I would not say, that even a madman does not calculate.[9]
Bentham claims that utilitarian calculation underlies not only human actions in general but legal punishment in particular:
The business of government is to promote the happiness of the society, by punishing and rewarding…. In proportion as an act tends to disturb that happiness, in proportion as the tendency of it is pernicious, will be the demand it creates for punishment.[10]
Bentham maintains that the purpose of punishment is to discourage crimes, which he calls acts of "mischief." A crime produces a "primary mischief," which is sustained by an assignable individual or multitude of individuals, and a "secondary mischief," which is the extension of mischief to unassignable
[7] Ibid., ch. 1, section 1.
[8] Ibid., ch. 1, section 2.
[9] Ibid., ch. 14, section 28.
[10] Ibid., ch. 7, section 1.
individuals or to the whole community.[11] If I am robbed, I sustain primary mischief, and so do family members who care about me or rely on me for support. Society sustains secondary mischief by my being robbed, because the level of "danger" and "alarm" have been increased.[12] The "danger" lies in the suggestion to others of the feasibility of robbing. "Alarm" refers to the increased. fear we all suffer from the prospect of being victims of robbery.[13] It is to prevent such mischiefs that we punish. For Bentham, punishment is "an artificial consequence annexed by political authority to an offensive act."[14] We punish in order to augment the total happiness of the community by excluding mischief, which tends to subtract from that happiness.[15]
Punishment is itself a mischief, or evil, since it inflicts pain, and on the principle of utility "it ought only to be admitted in as far as it promises to exclude some greater evil."[16] Punishment does this by reformation, disablement, and compensation, but maily by "example"—by which Bentham means deterrence.[17] Compensation, or the providing of a "pleasure or satisfaction to the party injured," is not the primary purpose of punishing, because "no such pleasure is ever produced by punishment as can be equivalent to the pain."[18] Bentham sees as primary instead the deterrent function of punishment: "Example is the most important end of all, in proportion as the number of the persons under temptation to offend is to one."[19] Bentham often appeals to the deterrent effects of punishing, for example, in justifying the practice of not punishing retroactively: we cannot deter by punishing someone for an act
[11] Ibid., ch. 12, section 3.
[12] Ibid., ch. 12, section 5.
[13] Ibid., ch. 12, section 8.
[14] Ibid., ch. 12, section 36.
[15] Ibid., ch. 13, section 1.
[16] Ibid., ch. 13, section 2.
[17] Ibid., ch. 13, section 2; ch. 15, section 14.
[18] Ibid., ch. 13, section 2.
[19] Ibid., ch. 13, section 2, note.
he could not have known was mischievous.[20] Similarly, punishing infants or the insane or intoxicated is not warranted, for they could not be deterred.[21]
Bentham, then, gives what is essentially a deterrence-based justification of the infliction of punishment—we inflict punishment to deter future mischief—that is premised on the more general claim that mischief detracts from our happiness, and the increase of happiness should be the ultimate end of all ethical action.[22] Bentham justifies punishment by showing, not that it servesjustice, but that it promotes the good.[23]
Once he has established that the purpose of punishment is to yield the good by excluding mischief—which is painful and therefore evil—Bentham argues that we should employ punishment in particular cases only when it lives up to this purpose; he uses his account of the principle immanent in the practice to criticize the actual practice when it diverges from the principle. In Bentham's view, we should punish only when the principle of utility warrants punishment. Therefore, he argues, we should not punish where doing so would be groundless for want of mischief to deter; nor where punishing is inefficacious; nor, as we saw above, "where it cannot act so as to prevent the mischief"; nor where punishing is "unprofitable" or "too expensive"; nor where we could stop the mischief in some other, cheaper way.[24]
[20] Cf. ibid., ch. 13, section 7.
[21] Ibid., ch. 13, section 9. H. L. A. Hart has sharply criticized this point: "Plainly it is possible that the actual infliction of punishment on the insane or children may deter normal persons" ("Prolegomenon to the Principles of Punishment," in Stanley Grupp, ed., Theories of Punishment [Bloomington: Indiana University Press, 1971], p. 369).
[22] Bentham defines ethics as "the art of directing men's actions to the production of the greatest possible quantity of happiness" (Introduction , ch. 17, section 2).
[23] "Now, pleasure is in itself a good; nay, even setting aside immunity from pain, the only good; pain is in itself an evil; and, indeed, without exception, the only evil; or else the words good and evil have no meaning" (ibid., ch. 10, section 10).
[24] Ibid., ch. 13, section 3. Bentham infers so many "cases unmeet for punishment" that he runs the risk of undermining his own argument justifying punishment for its deterrent effect. Most modern deterrence theorists emphasize that if punishment is to deter, the potential criminal must be reasonably certain that his crime will be met with punishment. Bentham would have us factor into our calculation so many variables that no person could know for certain whether in the end the action he weighs would be deemed punishable.
Bentham also uses his principle of utility to formulate rules for how we should go about punishing. For example:
The value of the punishment must not be less in any case than what is sufficient to outweigh that of the profit of the offence.[25]
The greater the mischief of the offence, the greater is the expense, which it may be worth while to be at, in the way of punishment.[26]
Bentham gives utilitarian accounts of aspects of legal punishment usually justified by retributive principles. For example, he says that punishment should share the characteristic of the offense, for in this way it is an analogy and will be efficacious.[27] Retaliation, therefore, "in the few cases in which it is practicable, and not too expensive, will have one great advantage over every other mode of punishment."[28] Bentham thus gives something approaching a utilitarian justification of the lex talionis. Bentham also finds a utilitarian ground for another retributive principle—that we punish in order to express society's moral disapproval of crimes. He suggests that by expressing reprobation for a crime—by using "solemnities"—we can increase the apparent magnitude, without needlessly increasing the cost (level of mischief) of the punishment.[29] Bentham argues, not, as do some retributivists, that we punish in order to condemn; but, rather, that by punishing in a way that expresses
[25] Ibid., ch. 14, section 8.
[26] Ibid., ch. 14, section 10.
[27] Ibid., ch. 15, section 7.
[28] Ibid., ch. 15, section 8.
[29] Ibid., ch. 15, section 9.
condemnation we can achieve our purpose—more total pleasure and less total pain—at a lower cost.
The retributivist may object to Bentham's justificatory project by claiming that Bentham does not really justify punishment—he does not show the justice of the practice; rather, he gives reasons why punishment is good. The retributivist might claim that questions of the good are separate from questions of justice or of what is right, and that before we decide how to obtain what is good we must know how justice or right limits what actions we might take to obtain the good.[30] Some retributivists infer from the utilitarian's emphasis on the good that the utilitarian ignores questions of right, that in principle he justifies the manifest in justice of punishing the innocent if doing so would promote social utility.[31]
Bentham does not argue that we should punish an innocent person, even if doing this would augment the total happiness of the community.[32] But he does argue that we should not punish in cases where this would be inefficacious, or unprofitable, or too expensive,[33] and some retributivists would reply that justice demands that we punish even in such cases. The dispute will remain obscured unless we make the distinction between demanding we punish only for an offense (a "negative retributive principle") and demanding we always punish for an offense (a "positive retributive principle").[34] At one point
[30] A major topic of contemporary moral philosophy is the question of whether the right is prior to the good. Michael Sandel challenges what he takes to be the claim of John Rawls that justice should have absolute priority over all particular conceptions of the good, by arguing that we give up the politics of rights for a politics of the common good. Sandel describes Rawls as a "deontological liberal" in holding to the moral priority of justice (Sandel, Liberalism and the Limits of Justice [Cambridge: Cambridge University Press, 1982], esp. Introduction and ch. 1; cf. John Rawls, A Theory of Justice [Cambridge, Mass.: Harvard University Press, 1971], esp. chs. 1–2.
[31] See chapter 5, section 4.
[32] Bentham says explicitly, if not emphatically, that we punish only in response to "an offensive act" (Introduction , ch. 12, section 36; cf. ch. 15, section 25, and ch. 13, section 3).
[33] Ibid., ch. 13.
[34] Recently such a distinction has been suggested by J. L. Mackie, Persons and Values (Oxford: Clarendon Press, 1985), pp. 207—8. Cf. C. L. Ten, "Positive Retributivism," Social Philosophy and Policy , vol. 7, no. 2 (Spring 1990), pp. 194–208.
Bentham appears implicitly to assent to the positive retributive principle that we must punish for an offense. Bentham writes that the deterrent effect of punishment
depends altogether upon the expectation it raises of similar punishment, in future cases of similar delinquency. But this future punishment, it is evident, must always depend upon detection. If then the want of detection is such as must in general appear too improbable to be reckoned upon, the punishment, though it should be inflicted , may come to be of no use.[35]
Here Bentham argues that punishment would be useless, and therefore by his own principle ought not to be inflicted, in cases in which punishing would not deter future mischief. However, Bentham, in reflecting on such cases, writes, not that we ought not to punish, but, rather, that punishing would be of no use "though it should be inflicted." This might indicate that he recognizes implicitly that there is some ethical demand (based on utility!) for punishing offenses, regardless of the bearing on utility of actually inflicting punishment in these cases. Of course the "should" here is ambiguous in the English of Bentham's time. It may mean "even were it to be inflicted" rather than "it ought to be inflicted," and so I do not think we should make too much of this point. In one other passage, referring to the accidental punishment of a person innocent of an offense, Bentham uses the phrase "justly punished" to describe the punishment deserved by someone guilty of an offense,[36] thus implicitly acknowledging the negative retributive principle that we may punish only those who commit offenses—justice demands this.
Bentham's position seems to be this: we may justly punish only those guilty of a crime. But though some will say justice demands that we punish all who commit crimes, in some cases
[35] Bentham, Introduction , ch. 17, section 13, my emphasis.
[36] Ibid., ch. 15, section 25.
the principle of utility dictates that we should refrain from carrying out the act of punishment.
Bentham did allow that "lots of punishment" are "variable."[37] Perhaps Bentham's response to the retributivist objection that it is unjust not to punish someone who commits an offense would be to say that we should always punish, but where the punishment we would ordinarily prescribe for a particular crime would be too great a mischief to be justified by utility, we should adjust the punishment to a lower level of mischief, thereby satisfying the demands both of retribution and of utility. The problem with this argument is that it is not consistent with Bentham's principle of utility, which insists that we punish only when punishment will be efficacious. By insisting on this point, Bentham stands opposed to the positive retributive principle that we must punish all offenses. But Bentham himself implicitly accepts the weaker negative retributive principle that we must punish only for an offense, and there is some evidence (though weak) that he might recognize implicitly even the stronger principle which he explicitly opposes.
1.2 Cesare Beccaria
We have seen a tension in Bentham's account between his utilitarianism and his very tentative and implicit acknowledgment of the demands of right or justice. This tension also surfaces in the work of another classic theorist of punishment, Cesare Beccaria. Beccaria is not properly called a utilitarian, for he does not appeal systematically to some principle of utility, as does Bentham. But in his famous work An Essay on Crimes and Punishments , Beccaria justifies legal punishment, and also its limits, by appealing to the idea of social utility.[38] Beccaria combines elements of both rights-based and utilitarian
[37] Ibid., ch. 15, section 2.
[38] Cesare Bonesana Beccaria, An Essay on Crimes and Punishments (Philadelphia: William P. Farrand and Co., 1809). Beccaria's book was important for its plea for humanity in punishment and for its opposition to the death penalty.
theories. Like Hobbes, Beccaria argues that the natural condition of man is a continual state of war, and to escape it we sacrifice part of our liberty in order to enjoy the rest in peace and security; this reservoir of liberty has to be defended, and punishment is the means. Punishment is necessary to restrain passions and preserve our lives.[39] Armed with this principle that we punish to preserve the safety of society, Beccaria goes on to ask of all occasions on which we consider whether to punish, whether punishing is reay useful or necessary for the safety or good order of society.[40] As for Bentham, for Beccaria punishment is an evil, and we are to use it only when the principle of social utility dictates that we should:
The degree of the punishment, and the consequence of a crime, ought to be so contrived as to have the greatest possible effect on others, with the least possible pain to the delinquent—for mankind, by their union, originally intended to subject themselves to the least evils possible.[41]
Beccaria gives essentially a deterrent theory of punishment: the intent of punishment is not to torment or to undo past crime, but to deter future injury to society, and punishment ought to be chosen to maximize its deterrent effeect.[42]
But Beccaria's utilitarianism is combined with his rights-based social-contract theory. Beccaria argues that men give up some of their natural liberty and agree to obey the laws and be punished for violating them, only because doing so is necessary to prevent a state of war.[43] Beccaria objects to the death penalty by appealing to his rights-based theory: the sovereign has no right to impose the death penalty, because we never gave to others the right of taking away our lives—in agreeing to the social contract, we each sacrificed only a small
[39] Ibid., chs. 1, 4.
[40] Ibid., ch. 11.
[41] Ibid., ch. 19.
[42] Ibid., ch. 12.
[43] Ibid., ch. 2.
portion of liberty to the public good. Beccaria, however, also appeals to principles of utility in opposing the death penalty. arguing, for example, that the death penalty does not deter.[44] Hobbes had similarly said that we can never be understood to lay down our right to defend our lives or to resist being wounded, chained, or imprisoned.[45] Hobbes, however, does not argue that the sovereign has no right to punish; his sovereign may do what he pleases, even punish an innocent person without this being an injustice.[46] Hobbes argues, rather, that the sovereign may with right execute me, but I retain the right to try to escape. Unlike Hobbes, Beccaria is not content with declaring the right of the convicted person to try to flee from the executioner, leaving the prisoner a corpse with rights. Beccaria, as we have seen, gives other reasons in arguing against state execution.
Both Bentham and Beccaria justify legal punishment by appealing to some principle of social utility. Both recognize, implicitly or explicitly, limits to their justificatory principle. Bentham implicitly acknowledges that we may justly punish only for a mischievous offense; and Beccaria argues that we may punish only in a way that does not violate the individual rights we carry with us into civil society.
1.3 Richard Posner
The legacy of Bentham and Beccaria has carried over to the present.[47] It is fair to say that utilitarianism is favored among
[44] Ibid., ch. 28. Of course, Beccaria does not imply that the murderer should not be punished by some other form of punishment. Whether we punish is a separate question from how we punish—a point on which I elaborate in the next chapter.
[45] Thomas Hobbes, Leviathan , ed. Michael Oakeshott (New York: Collier Books, 1962), ch. 21.
[46] Ibid., ch. 14.
[47] One of the leading utilitarian (in a loose sense) accounts of legal punishment is given by James Q. Wilson, Thinking About Crime (rev. ed. New York: Random House, 1985). Wilson opposes the "sociological approach" that tries to trace the causes of crime; he thinks we ought to deter a criminal by increasing the costs and reducing the benefits of crime. Wilson thinks individuals choose the path of crime, or at least that we should assume this as a matter of policy (pp. 45–51. In Wilson's view, crime will decline if it becomes less profitable compared to other ways of spending one's time: Would-be offenders are reasonably rational and respond to their perception of the costs and benefits attached to alternative courses of action" (p. 118).
the competing theories and justifications of legal punishment. In this section I shall take as a contemporary example of this legacy the work of Richard Posner, even though for a technical reason Posner distinguishes his account from utilitarianism.[48] Posner takes utilitarianism to the extreme in accounting for many aspects of the practice of legal punishment. His argument is interesting and highly controversial, and because of its extreme character offers us an instructive utilitarian foil to retributive justifications. Also, Posner, with the "law and economics movement" of which he is a leading advocate, has been an influential voice in public policy debates, and so consideration of his argument is particularly appropriate, given our concern ultimately with the application of theory to practice.[49]
[48] Richard Posner, "An Economic Theory of the Criminal Law," Columbia Law Review , vol. 85, no. 6 (October 1985), pp. 11 93–1231. The technical reason Posner distinguishes his view from utilitarianism has to do with the difference between the economic concept of value and the moral concept of utility. In Posner's view, we punish to further economic efficiency, and so my stealing a car is wrong because it is an inefficient method of allocating resources or because it moves resources from a more to a less valuable employment. Posner defines value as "a function of willingness to pay." "Since I am unwilling (because unable—but it does not matter why) to pay my neighbor's price for the car, it follows that the car would be less valuable in an economic sense in my hands than in his." Posner adds, "The car might, of course, confer more utility (pleasure, satisfaction) on me than on my neighbor, but there is a difference between utility in a broad utilitarian sense and value in a (perhaps narrow) economic sense, where value is measured by willingness to pay for what is not yours already" (1196, and note 9). One objection to Posner's view is that it doesn't take seriously the discrepancy between willingness and ability to pay. In a (broad) utilitarian theory we can allow that a Stradivarius in the hands of a low-income prodigy is a more valuable allocation of resources than a Stradivarius locked in the vault of a rich investor who can't play a note.
[49] See, for example, New York Times , October 10, 1988, on the role of the law and economics movement in the debate about corporate penalties.
Posner argues that the criminal law exists to be functionally efficient by serving the goal of wealth maximization. He gives a comprehensive rationale or theory of the criminal law and criminal law doctrine, explaining how this law and doctrine serve to enhance market efficiency. Posner is not obviously engaged in any justificatory activity, at one point saying that he hasn't enough time to consider competing theories:
lf this Article were not already so long, I would go on and compare the economic approach with its principal rival, the "moral" theory of criminal law, which argues that the criminal law should only punish morrally blameworthy conduct. Whatever the normative merits of this approach, I doubt that it is as good a positive theory of criminal law as the economic, since in so many areas conduct is punished that is not blameworthy in the moral sense.[50]
Posner argues that
[t]he major function of criminal law in a capitalist society is to prevent people from bypassing the system of voluntary, compensated exchange—the "market," explicit or implicit—in situations where, because transaction costs are low, the market is a more efficient method of allocating resources than forced exchange.… Most of the distinctive doctrines of the criminal law can be explained as if the objective of that law were to promote economic efficiency.[51]
[50] Posner, "An Economic Theory of the Criminal Law," pp. 1230–31
[51] Ibid., p. 1195. We might think that to say, as does Posner, that our practice can be explained "as if" x were the principle immanent in it is not to say that x is the principle immanent in the practice. But this distinction between "as if" and "is" holds only if we think principles have ontological status. I believe, rather, that to say a principle inheres in a practice is to make an interpretive claim that reflects not the ontology but one's understanding of a practice.
With this principle—that we punish in order to promote market efficiency—Posner accounts for numerous aspects of the criminal justice system. He accounts for why in most cases we require as a condition for punishment that there be a certain state of mind, or intent, of the accused, a requirement he says is "puzzling to the economist."[52] His answer is that criminal intent identifies "pure coercive transfers," and this is economically important. Where there is intent, we can infer that the criminal invests resources to bring about a wrong, and that the wrong did not emerge accidentally. We should expend the resources needed to punish only where other resources are being expended by the criminal. Otherwise all sorts of serious social costs would be incurred by people avoiding lawful activity in order to prevent the appearance of being engaged in unlawful activity:
If I take from a restaurant an umbrella that I mistakenly think is mine, I am not a thief, if I know the umbrella is not mine and take it anyway, I am. The economic difference is that in the first case I would have to expend resources to avoid taking the umbrella and the probability of my taking the wrong umbrella is low … the risk of overdeterrence through a criminal penalty is great.[53]
Therefore the requirement of intent is justified on economic grounds. Implicit in Posner's account is Bentham's own rule that we should not punish where doing so is unprofitable or too expensive.
Posner's claim that we punish in order to prevent the bypassing of markets may seem plausible in accounting for why we punish those who steal or those who create monopolies.[54] But much of our criminal law is concerned with crimes of
[52] Ibid., p. 1221.
[53] Ibid.
[54] Though retributivists would argue that the thief who steals my property has violated my person, has done something that is morally wrong. The retributivist might appeal to the sense of indignation and the feeling of being violated that one experiences when robbed even of something trivial.
violence. Can Posner's principle account for why we punish the murderer or rapist? Posner thinks so.
Crimes of passion often bypass implicit markets—for example, in friendship, love, respect … less obviously, crimes of passion often bypass explicit markets too.… Someone who gets his satisfaction in life from beating up other people, without compensating them, rather than from engaging in trade with them, is thus bypassing explicit markets.[55]
Posner also claims that the rapist bypasses markets: "if [the rapist] spent his time raping rather than dating women he would be bypassing an implicit market."[56] Posner's claim is that having laws against murder and rape is more efficient than allowing these "coercive transfers." If we did not punish murderers and rapists and allowed such coercion we
would create incentives for potential victims to spend heavily on self-protection and for potential aggressors to spend heavily on overcoming the victims' self-protective efforts. All this spending would yield little if any net social product.[57]
Posner realizes how perverse his argument sounds and at least pauses to acknowledge that of course "rape is a bad thing." He says his point is that "economic analysis need not break down in the force of such apparently noneconomic phenomena as rape."[58] At this point his argument is far removed from not only a justification but also an explanation of some aspects of legal punishment—he gives a rationale which is not in the least bit persuasive as an account of the reasons we punish crimes of violence.
[55] Posner, "An Economic Theory of the Criminal Law," p. 1197. One of Posner's examples "of a lawful market alternative to battery" is professional boxing (p. 1198, note 12).
[56] Ibid., p. 1198.
[57] Ibid.
[58] Ibid., p. 1199.
Posner's account is troubling, especially to the retributivist. Posner sees the criminal justice system as an instrument we can fine-tune to promote economic efficiency. For example, he claims that we adjust the probability of apprehension (for example, by increasing or reducing the number of police) with the length of sentence, in order to approach an efficient use of resources. When we make more arrests and reduce the length of sentence, we trade litigation and pre-trial detention costs for prison costs.[59] The retributivist objects to the very idea of adjusting the level of arrest—it is unfair that who gets apprehended and punished depends on the decision of policy-makers concerned with economic efficiency. Posner acknowledges this claim that selective enforcement of laws "creates ex post inequality among offenders,"[60] but he sees nothing wrong with this. The criminal justice system, in his view, is like a lottery, and lotteries aren't unfair:
Nor is it correct that while real lotteries are voluntary the criminal justice "lottery" is not. The criminal justice['sl is voluntary: you keep out of it by not committing crimes.[61]
But those holding to the positive retributive principle find selective enforcement unacceptable, not merely because it is unfair, but because it is premised on the mistaken view that it is not inherently wrong to allow some crimes to go unpunished.
When we turn to the contemporary utilitarian-retributive debate (chapter five, section 4), we shall see that an important retributive objection to utilitarianism is that in principle the utilitarian, who justifies an action on the basis of whether it augments social utility, is committed to punishing an innocent person if the principle of utility recommends doing so. None of the utilitarians we have discussed justifies the punishing of
[59] Ibid., p. 1213.
[60] Ibid.
[61] Ibid.
an innocent person for the sake of augmenting social utility. Even Bentham implicitly rules this out. But neither Bentham nor Posner accepts the claim that seems fundamental to the retributivist position: that there are such things as wrongs deserving of punishment. For Posner, the reason we call (and ought to call) certain activities wrongs, or crimes, is that they bypass the market and therefore promote economic inefficiencies; for Bentham, the reason is that these activities, or mischiefs, take away from society's total happiness. Each holds that the reason we have the whole practice of legal punishment is to augment social utility, however understood; each is therefore willing in particular cases to say "don't punish," if the principle each sees underlying the practice as a whole determines that we should not punish. Each explicitly rejects the positive retributive principle that we must always punish for an offense, a principle to which many retributivists hold. We might think that one is not a retributivist unless one holds to this principle. Our task now is to see just what it means to be a retributivist.