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A recent attempt to revive retributive theories of punishment, pioneered by Herbert Morris and Jeffrie Murphy, argues that punishment restores the balance of benefits and burdens in a society; a balance that is disturbed by crime. Classic and contemporary statements of this position are examined and rejected. The conclusion is that fair‐play theory, with its emphasis on free riding, does not have an adequate account of ‘wrong’.

The recent revival of retributive theory has been led by Michael Moore's claim that retributivism has moral worth, and by communicative and expressive theories of punishment that emphasize guilt and censure. It is argued that retributivism captures an important truth about punishment's backward‐looking nature, but that no retributive theory can adequately answer the question of by what right some people punish others.

This introductory chapter states the book's thesis — that penal action by public officials is permissible force rather than wrongful violence only if it could be accepted by the agent as being consistent with its freedom. It outlines the various conceptions of freedom that compete for control of the penal law and announces his intention to reconcile them within an inclusive idea of freedom. It describes the apparent paradoxes in the penal law's basic structure and argues that only a theory based on an inclusive idea of freedom can unify the law while remaining faithful to its complexity. The chapter contrasts the political theory of the penal law the book will be offering to the dominant moral theory, legal retributivism with moral retributivism, and argues that a moral theory of the penal law based on blame and censure produces a penal law incompatible with the agent's inviolability.

This chapter describes the costs that criminal theory would be forced to pay by adopting the view (currently fashionable among many moral philosophers) that the intentions of the agent are irrelevant to determinations of whether his actions are permissible (or criminal). Among other difficulties, the view that is challenged encounters enormous problems accounting for penal liability for attempted crimes.

This chapter examines how retributivists should decide whether and to what extent a person should be punished for committing a criminal offense when he is ignorant of the law he violates. It contends that no solution is possible without a fundamental rethinking of the content of substantive offenses. Progress might be made on this issue if we model a theory of culpability and mistake of law after the familiar theory of culpability and mistake of fact. This model helps us to appreciate that different mistakes may involve various levels of culpability about different material elements of offenses and thus need not all be treated in the same way.

This chapter argues that a comprehensive justification for punishing criminals must address why those persons who deserve to be punished should actually be punished by the state, all things considered. Plausible answers to this question reveal deficiencies in pure retributive theories: those that deem consequences to be wholly irrelevant to the justification of punishment. Consequences are material when we explain why the state should punish those who are deserving of punishment.

If Buddhists really hold consequentialism and hard determinism, we would expect them to endorse utilitarian views of punishment and reject retributivism. We find this kind of view on the justification of punishment in Nagarjuna’s Precious Garland. Nagarjuna sees punishment as sometimes necessary, thereby rejecting a pacifist form of unqualified nonviolence. But he advocates compassionate and merciful punishment in terms incompatible with any form of retributivism. From a Buddhist perspective, the American criminal justice system creates needless suffering on a massive scale. Punishment is necessary to protect society, but should be practiced only to the extent required by deterrence and rehabilitation; our present system can be justified only by appeal to irrational and vindictive retributivist views. Buddhists should advocate the abolition of the death penalty and the elimination of mandatory minimum sentences, especially for nonviolent offenders.

The chapter focuses on the conception of atonement as repayment of a moral debt. The metaphor of moral debt and repayment is traditionally developed in two ways. First, retributivism and satisfaction theory suggest that wrongdoing can be repaid only through suffering, whether in the form of guilt, punishment, or penance (self-punishment). The second way focuses not on a loss or harm for the wrongdoer but on compensation for the victim. Although retributive and restitution theories of atonement share a conception of wrongdoing, they make opposing mistakes. Retributive theories elide the moral significance of victims. Restitution theories, on the other hand, fail to recognize the significance of the wrongdoers in that they are unable to justify the intuition that it is the wrongdoers themselves who must make the reparative response.

This chapter has two aims. First, it seeks to develop an adequate taxonomy of possible (and historically advocated) theories of punishment. Utilitarian, retributive, rehabilitative, and mixed theories are distinguished, with subspecies of each.. Second, the chapter presents a set of thought experiments making it difficult to hold the utilitarian, rehabilitative, or mixed theories of punishment. That leaves retributivist theories as the preferred basis for punishment, assuming we are to punish at all. The aim of the chapter is not so much to justify retributivism as to show that each of us is, intuitively at least, a retributivist – a ‘closet retributivist’, perhaps, but a retributivist nonetheless.

This chapter mulls over the justificatory apparatus of the preceding chapter. A secondary literature critical of that apparatus has developed, and the main arguments of that literature are considered. These include charges of circularity, lack of deductive strength, failures of explanatory superiority, over- emotionality, and under- and over-breadth directed against my mode of justifying retributivism. None of these are found to be convincing.

This chapter suggests a way that deontological retributivists can accommodate the compromises to just punishment made necessary in the real world by scarce resources and competing societal needs and goals. The chapter considers consequentialist retributivism, in which trade-offs are allowed in order to maximize some measure of punishment or justice, but finds the quantification of just punishment problematic due to the ideal or principled nature of justice. Instead, it proposes a practical, deontological retributivism in which the principle of just punishment is balanced with other principles and goals according to a concept of judgment drawn from the moral philosophy of Immanuel Kant and the jurisprudence of Ronald Dworkin. After outlining the resulting “pro tanto retributivism,” the chapter compares it to other suggestions regarding how to balance competing interests within punishment, including Michael S. Moore’s “threshold retributivism,” and argues that his conception is more flexible while adhering to a deontological understanding of retributivism.

This chapter sets out and defends a version of retributivism that the book calls legal retributivism, and shows how it is untouched by the criticisms directed by consequentialists against moral retributivism — the view that punishment is justified as giving the wicked their just deserts. The chapter begins by setting out the basic features of the penal justice paradigm ordered to the protection of the agent's formal liberty to act on ends it chooses: the equal dignity of agents, the independence of wronging from harming, the absence of liability for failing to benefit, and the independence of culpability from evil. It then describes the conceptions of wrongdoing and of criminal wrongdoing belonging to this paradigm. It explicates the nonconsequentialist and nonmoral justification of punishment uniquely connected to this framework and defends this way of justifying punishment as the only one consistent with the inviolability of the person. Finally, it describes the limitations of the formalist paradigm to which legal retributivism belongs.

Punishments require clear and convincing justification—by definition, they impose unpleasant and usually harmful consequences on offenders, and they also consume scarce public resources. Moreover, purposes of punishment often conflict in particular cases. Hybrid (or “mixed”) punishment theories seek to reconcile these conflicts while recognizing multiple punishment justifications. This chapter summarizes and critiques hybrid theories proposed by other writers, as well as nonhybrid theories (pure retributivism or utilitarianism). Particular attention is given to the more developed hybrid models proposed by Norval Morris, Paul Robinson, and Andrew von Hirsch. The chapter concludes that limiting retributivism—with the modifications and additions embodied in this book’s proposed model—is superior to other hybrid and nonhybrid models, all of which have major flaws both in theory and in practice. But there is a substantial degree of consensus on many points, and most of the proposed model’s sentencing principles have been endorsed by previous writers.

This chapter offers new perspectives on his position that punishment communicates the censure that the offender deserves for his crime, focusing on the challenge of explaining why penal “hard treatment” should be the appropriate means of communication. The chapter meets that challenge by showing that appropriate kinds of penal hard treatment can serve as a vehicle for a two-way communication between offender and political community—the communication of formal censure from community to offender, and of formally apologetic recognition from offender to community—which is motivated by the offender’s wrongdoing as ascertained during a fair trial, which Duff emphasizes as critical to the retributivist project. This chapter goes beyond the author's last book in developing the “apology” dimension and saying more about the relationship between retributive and restorative justice, bringing together ideas from some of the work that he has published since then (most in relatively obscure publications).

This chapter discusses the construction of an articulated hybrid distributive principle. When alternative principles conflict, a principled hybrid must define which of the competing principles is to be followed. This may be done by relying upon the principle with the greatest punishment, establishing priorities, distinguishing determining principles from limiting principles, combining principles to give a result influenced in part by all principles, and distinguishing liability assignment and amount of punishment from the method of punishment The American Law Institute's distributive principle of “limiting retributivism” is discussed.