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Pro Tanto Retributivism: Judgment and the Balance of Principles in Criminal Justice

Mark D. White

I recently posted a new paper to SSRN, "Pro Tanto Retributivism: Judgment and the Balance of Principles in Criminal Justice," forthcoming in my edited volume Retributivism: Essays on Theory and Policy (Oxford University Press):

In this chapter, I suggest a way that deontological retributivists can accommodate the compromises to the ideal of just punishment made necessary in the real world by scarce resources and competing societal needs and goals (a context also emphasized by Cahill and Markel in their chapters in this book). I consider recent work supporting consequentialist retributivism, in which trade-offs are allowed in order to maximize some measure of punishment or justice, but find the quantification of just punishment problematic due to the ideal or principled nature of justice inherent in the concept. Instead, I propose 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,” I compare it to other suggestions regarding how to balance competing interests within punishment, including Michael S. Moore’s “threshold retributivism,” and argue that my conception is both more flexible while adhering to a more deontological understanding of retributivism.

This is a philosophical companion of sorts to my chapter in Theoretical Foundations of Law and Economics, "Retributivism in a World of Scarcity" (pre-print draft available at SSRN here), which laid out the economic problems with a deontological retributivism that mandates just punishment of all criminals. The new paper suggests a way that deontologists can be comfortable with the compromises in just punishment that scarcity demands, drawing on a conception of balancing principles drawn from the thought of both Immanual Kant and Ronald Dworkin, an ongoing project of mine which is previewed here (as well as in my forthcoming Kantian Ethics and Economics: Autonomy, Dignity, and Character from Stanford).


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