In medio stat virtus. The Justification of Punishment between Deontology and Utilitarianism

Abstract

In this paper, we aim to defend the claim that psychologically and normatively plausible justificatory theories of punishment are those that virtuously merge deontological (notably retributivist) and consequentialist (utilitarian) elements. In many ordinary cases, such alternative views readily converge – in practice, if not in principle – when it comes to determining whether, and to what extent, a given culprit ought to be punished. Punishing the offender may indeed often subserve both retributivist and utilitarian ends at once – say, respectively, restoring justice by punishing those who deserve to be punished and maximizing the general utility. In the paper, however, we will present a case study displaying the tension occurring when retributivist and utilitarian views point to different punishing behaviors. Especially in such cases, but also in principle, subscribing to utilitarian views might appear to be the best option. Utilitarianism, indeed, is often described as both more humane and more in line with an empirically sound understanding of human action. At the same time, utilitarian views – be they understood in their “act” or “rule” version – can be challenged by worrisome objections, among which there are the risks of scapegoating and exaggerating punishment. To avoid such excesses, we will argue that mixed theories of punishment, merging retributivist and utilitarian criteria, are to be preferred.