4. The Contemporary Utilitarian-Retributive Debate

Contemporary theorists of punishment have sought to reconcile utilitarianism and retributivism. Historically, they did this in the context of defending utilitarianism against the objection made by retributivists that the principle of utility, consistently applied, recommends in principle the punishment of the innocent, for surely in some cases doing this would be "optimific."^[13] Most utilitarians saw this charge—violation of

the retributive demand to punish only the guilty—as a valid concern and sought to preserve their utilitarian account while recognizing the retributive demand.^[14] By taking what has been called "the middle way,"^[15] they understood the two principles as sharing in a division of justificatory labor. In one version, the retributivist is said to justify how we punish in particular cases by pointing to the rules of the practice, one of which is to punish only the guilty, whereas the utilitarian is said to justify why we have the practice to which the rules belong.^[16] According to this rule-utilitarian account, the utilitarian avoids the unacceptable position of justifying punishment of the innocent, without violating the principle that we should do what has the best consequences, by claigling that in the long run it's best to follow (the best) rules.^[17] In another version, the

[13] See Igor Primoratz, Justifying Legal Punishment (Atlantic Highlands, N.J.: Humanities Press International, 1989), chs. 2–3; J. J. C. Smart, An Outline of a System of Utilitarian Ethics (Adelaide, Australia: Melbourne University Press, 1961); C. L. Ten, Crime, Guilt, and Punishment (Oxford: Oxford University Press, 1987). Some utilitarians deny that their principle justifies punishment of the innocent. To punish someone who has not been found guilty of a crime would not be really to punish them. See Anthony Quinton, "On Punishment," Analysis , vol. 15 (June 1954), p. 138; K. Baier, "Is Punishment Retributive?" Analysis , vol. 16 (1955), p. 27; C. K. Benn, "An Approach to the Problems of Punishment," Philosophy , vol. 33 (October 1958), p. 331. But see Arnold Kaufman, "Anthony Quinton on Punishment," Analysis , vol. 20, no. 1 (October 1959), p. 13; and K. G. Armstrong, "The Retributivist Hits Back," Mind , vol. 70 (October 1961).

[14] One exception is J. J. C. Smart, who faithfully abides to his utilitarian tenets: if it would augment social utility, he demands, why not punish the innocent? "Extreme and Restricted Utilitarianism" in Michael Bayles, ed., Contemporary Utilitarianism (Gloucester, Mass.: Peter Smith, 1978), p. 113.

[15] Primoratz, Justifying Legal Punishment , ch. 6.

[16] John Rawls, "Two Concepts of Rules," in Bayles, ed., Contemporary Utilitarianism , pp. 59–98. See also R. M. Hare, Moral Thinking:Its Levels, Method and Point (Oxford: Oxford University Press, 1981), for another effort to incorporate retributivism, understood as rule-following, into a utilitarian theory.

[17] I understand Rawls to put forth a different argument: to engage in the practice is to justify actions of the practice by appealing to its rules; we do this, not because these rules are best, but because we must appeal to them if we are to engage in the practice. Rawls says his point is "a logical point" and that "[t]here is no inference whatsoever to be drawn with respect to whether or not one should accept the practices of one's society" ("Two Concepts of Rules," p. 97).

retributivist is said to justify whom (only the guilty) an`d how much (an amount commensurate to the evil) we may punish, whereas the utilitarian is said to justify why we punish at all (to augment social utility).^[18] By seeing each principle as fulfilling a different function, these theorists claim to give a utilitarian justification of punishment that respects the retributive demand that we not punish the innocent.

These attempts at an attractive and neat reconciliation are widely accepted.^[19] Their various proponents share a widespread prejudice among us that contradiction and conflict among principles are bad. But I believe that the reconciliation these theorists have achieved is illusory. There is no simple division of justificatory labor such that utility and retribution are compatible principles, both at work fulfilling different functions within the practice. Legal punishment is an essentially contested practice. To say, as does Rawls, that utilitarians justify why we have the rule-guided practice while retributivists justify actions of the practice by appealing to those rules is to give an inaccurate account of the arguments actually

[18] H. L. A. Hart, "Prolegomenon to the Principles of Punishment," in Stanley Grupp, ed., Theories of Punishment (Bloomington: Indiana University Press, 1971). Unlike Rawls, Hart casts his theory as a compromise theory, in that he acknowledges that our practices have conflicting principles, and so we need a compromise (H. L. A. Hart, Punishment and Responsibility [Oxford: Clarendon Press, 1968], p. 10). I shall nevertheless speak of his theory as an attempt at reconciliation.

[19] Cf. Ernest van den Haag, Punishing Criminals (New York: Basic Books, 1975), pp. 25–26; Andrew von Hirsch, Doing Justice (Westford, Mass.: Northeastern University Press, 1986): "[W]hile deterrence accounts for why punishment is socially useful, desert is necessary to explain why that utility may justly be pursued at the offender's expense" (p. 51); and Ten, Crime, Guilt, and Punishment . Ten adopts a "revised" compromise theory of punishment, the details of which needn't concern us here. Von Hirsch and Ten both take a pluralist approach, where both principles are given due weight.

made. Rawls's argument, which is seminal to the development of rule utilitarianism, has often been criticized as an incoherent version of utilitarian theory.^[20] My point is different. It is that Rawls and others who have taken "the middle way," by focusing on the philosophical problem of how to defend utilitarianism against the retributive charge that it justifies punishment of the innocent, give an account of punishment that is untrue to our practice, to arguments actually made by practitioners. Retributivists do not justify only whom or how much we may rightly punish; some retributivists declare that we must punish, as Kant does with his soon-to-be-deserted-island example. Both retributivists and utilitarians offer accounts of why we punish at all (to express condemnation of blameworthy acts and mete out justice; to augment social utility); and both counsel us on what rules should guide us regarding the distribution of punishment within the practice. Sometimes we require mens rea to convict a defendant; many acts are made crimes because society regards these acts as morally wrong; in sentencing we, generally try to fit the punishment to the moral gravity of the offense; and we allow for mercy and pardons. Although some of these features of our practice have been given utilitarian rationales, all accord unambiguously only with the retributive principle.^[21] But sometimes we hold people accountable to a strict liability standard; we punish acts that are clearly not morally culpable (such as unknowingly selling adulterated food);^[22] and in determining a criminal's sentence we sometimes take into account the threat of

[20] Cf. Primoratz, Justifying Legal Punishment ; Ten, Crime, Guilt, and Punishment .

[21] On the point that utilitarians can offer no account of mercy or pardon, because these presuppose a wrong deserving punishment, see Primoratz, Justifying Legal Punishment , pp. 36–37; and Alwynne Smart, "Mercy," in H. B. Acton, ed., Philosophy of Punishment (London: Macmillan, 1969), pp. 212–28.

[22] The example may be misleading, since many legal theorists call such an offense a "public welfare offense," which they distinguish from strict liability offenses. See Richard Wasserstrom, "Strict Liability and the Criminal Law," Stanford Law Review , vol. 12 (July 1960), pp. 731–45.

future harm posed by the criminal, regardless of the moral gravity of the offense of which he has been convicted. These features of our practice accord only with the utilitarian principle. Two principles are immanent in our practice; they pervade it through and through, and sometimes they conflict. By insisting that the retributivist speaks only to questions concerning the distribution of punishment, questions inside the practice, and that the utilitarian speaks only to the question of why we punish at all, Rawls and other compromise theorists fail to take seriously enough the claims of either the retributivist or utilitarian immanent critic, both of whom employ their distinct conceptions of why we punish at all to criticize or justify actions taken within the practice. By acknowledging that legal punishment is essentially contested, we are forced to take seriously both retributive and utilitarian immanent critics.

I believe (though I do not know how to go about proving) that legal punishment is not merely contested, conflict-ridden, or filled with inconsistencies, but that it is essentially contested.^[23] There are several senses of "essentially contested," all of which I believe apply to the practice of legal punishment. When we say a practice is essentially contested we might mean that one doesn't adequately comprehend the practice unless one comprehends each of the essentially contested understandings. Each of these understandings is an essential part of an adequate comprehension of the practice. In this sense punishment is essentially contested, for if by punishment we understood only retributive punishment or only utilitarian punishment, our understanding would be deficient—it would leave out many features which both utilitarians and retributivists would have to admit are part of our present practice of punishment. To say that a practice is essentially contested might also be to say that the core of the practice is as up for grabs as the peripheries or boundaries of the practice.^[24] In a

[23] x is "essential" to y if lacking x, y would not be y .

[24] On the idea of "core" and "periphery" with respect to practices, see James Griffin, Well-Being: Its Meaning, Measurement, and Moral Importance (Oxford: Clarendon Press, 1986).

practice that by this criterion is not essentially contested, there may be actions which some think appropriate to the practice and others think inappropriate, not properly part of the practice, not consistent with its purpose; but all will agree what that purpose is. By contrast, they will not so agree in a practice that by this criterion is essentially contested. In this sense, too, punishment is essentially contested. Utilitarians and retributivists do not merely disagree about whether this or that action properly belongs to the practice; they disagree about the fundamental purpose of punishment. A third meaning of essentially contested is "necessarily or inevitably contested." This is a very strong criterion, but still one by which punishment might be said to be essentially contested.

As a practice, legal punishment has underlying it some idea; it fulfills some purpose. But this purpose is realized, in the case of legal punishment and many other practices, only through the establishment of institutions, and there are important consequences following from the institutionalization of a practice. Some theorists have suggested that one such consequence is a perhaps inevitable tension between the original idea underlying the practice and the requirements imposed by the institutions needed to realize that idea. Hanna Pitkin distinguishes the institutionalized existence of practices, which she calls their "form," from the essential purpose or idea underlying these practices, which she calls their "substance."^[25] For example, in the debate, in Book I of Plato's Republic , between Socrates and Thrasymachus regarding what justice is, Socrates refers to the idea (or substance) of justice, while Thrasymachus refers to what justice in its institutionalized existence has come to mean, namely, "the advantage of the stronger." Pitkin argues that both Socrates and Thrasymachus are talking about the same concept, justice, but that

[25] Hanna Pitkin, Wittgenstein and Justice (Berkeley: University of California Press, 1972), p. 187; cf. pp. 186–92.

the conflict between the two reflects a typical process: when ideas or purposes become institutionalized, they become transformed. Justice takes on a new meaning. The original meaning is not lost, however; it is preserved and is in tension with the transformed conception.^[26] Pitkin, then, suggests that the contested character of justice derives from the tensions that result when ideas and purposes are institutionalized. Such a process might account for the essentially contested character of legal punishments.^[27]

Several theorists have argued that the original purpose of punishment was to mete out justice, which some think was originally manifested as the "primitive" urge to avenge.^[28] Hegel notes that the German word for justice, Gerechtigkeit , is related to the German word for revenge, Rache .^[29] Some argue that responsive attitudes underlie punishment: we punish as a response to blameworthy actions (in response perhaps to a "primitive urge," perhaps to an abstract conception of just

[26] Cf. Pitkin, Wittgenstein and Justice , ch. 8. I do not mean to suggest that Pitkin thinks ideas come from nowhere. She describes two processes: from concept to practice, and vice versa.

[27] Pitkin herself suggests the application to punishment in Wittgenstein and Justice , p. 188.

[28] See Karl Menninger, The Crime of Punishment (New York: Viking Press, 1966); Hans von Hentig, Punishment: Its Origin, Purpose and Psychology (1937; reprinted Montclair, N.J.: Patterson Smith, 1973); Emile Durkheim, The Division of Labor in Society , trans. George Simpson (1893; reprinted Glencoe, Ill.: Free Press, 1933). René Girard, in Violence and the Sacred , trans. Patrick Gregory (1972; reprinted Baltimore: Johns Hopkins University Press, 1977) sees legal punishment as a functional equivalent to primitive sacrifice, which puts an end to the chain of revenge violence. Nietzsche says that the idea that the criminal deserves punishment came later; originally punishment's roots were in "anger at some harm or injury, vented on the one who caused it," but that this anger was "held in check" by the idea of paying back the injury through equivalent pain, an idea that has its roots "in the contractual relationship between creditor and debtor" (Friedrich Nietzsche, On the Genealogy of Morals , trans. Walter Kaufmann and R. J. Hollingdale [New York: Vintage, 1969], essay 2, section 4).

[29] G. W. F. Hegel, Vorlesungen über Rechtsphilosophie (1818–1831) , ed. Karl-Heinz Ilting (Stuttgart-Bad Canstatt: Friedrich Fromman, 1973), vol. 4, p. 294.

deserts); and these responsive attitudes are not utilitarian. But we translate these attitudes into institutional contexts; once we have done this, utilitarian considerations force themselves upon us.^[30] In this view, when punishment became institutionalized we of necessity became utilitarians (or at least consequentialists).^[31]

But perhaps this is not the right story. It is difficult to say what is original idea or "core justification" and what is institutional consequence. Bentham argues the opposite. For Bentham, the original idea underlying punishment, its core justification, is utility. For Bentham, it is the demands on which retributivists typically insist that are institutional consequences. Bentham suggests that as a result of having a practice engaged in by many people, demands emerge for fairness, equal treatment, due process. One of these demands is that we punish only for acts stipulated by law as mischiefs. Once we codify laws as part of a practice—once we declare certain commonly occurring mischiefs to be crimes—the demand emerges that we punish only crimes; and Bentham implicitly acknowledges this retributive demand.^[32]

No matter which story is right.^[33] In either case the contested character of legal punishment arises from the interplay between ideas and institutional consequences.

[30] Joel Feinberg argues this in Doing and Deserving , pp. 82–83.

[31] As I argued in chapter 4, retributivism needn't be nonconsequentialist or deontic; the retributivist can acknowledge that institutions are required to attain her ideals at all and can therefore insist, as a condition of her retributivism, on the maintenance of the institutions, even if that requires violating the ideals.

[32] See Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (1789; New York: Hafner Press, 1948), ch. 15, section 25: in discussing 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. Bentham thus implicitly acknowledges the retributive principle that we may punish only those who commit offenses—justice demands this. But see Primoratz's discussion of Bentham, Justifying Legal Punishment , p. 26, for counterevidence.

[33] An appeal to ordinary language might suggest that retribution is core and that utilitarian considerations emerged as institutional consequence. it makes sense to argue that we can't punish someone who hasn't done a wrong (though ultimately this is an unconvincing argument). It would be far more odd to try to argue that when we punish someone convicted of a crime who is neither deferrable nor rehabilitatable nor a future threat, we really aren't "punishing."