Abstract
Criminal law theory is characterized by a longstanding debate between two broad positions: retributivism, which posits criminal law is justified by the moral demand to punish culpable offenders in accord with moral desert, and mixed instrumental-moral theorism, which posits that criminal punishment requires both an instrumental purpose and a prerequisite of offender culpability. Without attempting to mediate this ongoing debate, this article addresses the practical implications for criminal justice institutions and procedure of each of these two dominant, competing accounts of criminal law and punishment. I argue that the mixed theoretical account is so deeply embedded in Anglo-American criminal justice practice that a system oriented toward retributivism would require substantial institutional reform. Piecemeal imposition of some retributivist commitments would conflict with the existing institutional expectation of mixed theoretical commitments in a way that would risk thwarting the goal of having punishment accord with moral desert: a goal which both sides of the debate share. (Published Abstract)
Certainly! The article delves into the theoretical frameworks that underpin criminal law: retributivism and mixed instrumental-moral theorism. I'll break down the concepts used in this article to provide a comprehensive understanding:
Retributivism:
Retributivism asserts that the primary justification for criminal law lies in the moral obligation to punish individuals in proportion to their culpability or moral blameworthiness. This perspective focuses on the moral desert of the offender—that they deserve punishment for their wrongdoing. Proponents argue that punishment is not merely a means to an end (like deterrence or rehabilitation) but rather an end in itself, serving justice by restoring the moral balance disrupted by the offense.
Mixed Instrumental-Moral Theorism:
Contrary to retributivism, this perspective proposes that criminal punishment should serve both instrumental purposes (such as deterrence or rehabilitation) and moral considerations related to the offender's culpability. It suggests that punishment should not only aim to prevent future crimes or reform the offender but also take into account the moral blameworthiness of the individual committing the offense.
Practical Implications for Criminal Justice:
The article explores how these theoretical frameworks impact real-world criminal justice institutions and procedures. It argues that the current criminal justice system in Anglo-American societies heavily leans toward the mixed instrumental-moral theorism perspective. Any shift towards a purely retributivist approach would demand substantial institutional reform, potentially disrupting established practices.
Conflict and Goal Alignment:
The author argues that implementing retributive commitments within a system predominantly guided by mixed theoretical commitments could lead to conflict. Such a conflict might undermine the ultimate goal shared by both perspectives: ensuring that punishment aligns with moral desert. Piecemeal adoption of retributive principles within an institution primarily structured on mixed theories might risk misaligning punishment with moral justifications.
In summary, the article doesn't attempt to resolve the ongoing debate between retributivism and mixed instrumental-moral theorism but rather analyzes how the practical application of these theories affects criminal justice institutions. It highlights the challenges in aligning punishment with moral desert within existing institutional frameworks.
