3. An Objection to the Retributive Interpretation of Punishment

I have defended the retributive interpretation that we punish for justice and have even advanced the argument that to punish people in a way that violates the retributive ideal is to engage in some practice other than punishment. But there is a problem with the claim that features of legal punishment that violate the retributive ideal aren't part of the practice: they are . It's unconvincing to say that punishing a person who cops a plea, or who is insane, or whose act of wrong was a political act of protest is not really punishment. To call any of these "punishment" would be good English. Slightly more convincing is the retributivist's argument that grammatically we can't punish someone who merely violates a regulation but does nothing blameworthy; we can only inflict upon this person a penalty.^[12] But ordinary language is ambiguous even here: we

[12] See Joel Feinberg, "The Expressive Function of Punishment," in Doing and Deserving: Essays in the Theory of Responsibility (Princeton: Princeton University Press, 1970); and R. A. Duff, Trials and Punishments (Cambridge: Cambridge University Press, 1986), who argues that if doesn't fulfill the Kantian requirement that the defendant "participate" in the punishment by the understanding why she's being punished, then it's not "punishment" (p. 28; cf. pp. 37–38: the insane "can't" be punished).

speak of the murderer receiving the death "penalty." And the claim that it's impossible to punish someone for something she did not do is not at all nonsense, yet nevertheless there is precedent in ordinary language for saying the opposite. The ambiguities in the word "punishment" reflect the tensions in the practice of legal punishment.

The difficulty the retributivist immanent critic faces is that legal punishment is an essentially contested practice: both utility and retribution are principles immanent in the practice. Recent philosophical discussions about utilitarian and retributive theories of punishment have arrived at what might seem to be a similar conclusion: both principles are seen to be "there" in the practice, sharing in what might be called a division of justificatory labor; and neither the utilitarian nor the retributive theory alone is sufficient—we need some optimal mix. In the next section I shall consider the major compromise approaches and discuss why I think that although they are right to acknowledge that both principles are at work in legal punishment, in trying to reconcile the two they fail to take seriously enough how each principle lays claim to be the sole principle of the practice.