Rethinking Punishment

The age-old debate about what constitutes just punishment has become deadlocked. Retributivists continue to privilege desert over all else, and consequentialists continue to privilege punishment's expected positive consequences, such as deterrence or rehabilitation, over all else. In this important intervention into the debate, Leo Zaibert argues that despite some obvious differences, these traditional positions are structurally very similar, and that the deadlock between them stems from the fact they both oversimplify the problem of punishment. Proponents of these positions pay insufficient attention to the conflicts of values that punishment, even when justified, generates. Mobilizing recent developments in moral philosophy, Zaibert offers a properly pluralistic justification of punishment that is necessarily more complex than its traditional counterparts. An understanding of this complexity should promote a more cautious approach to inflicting punishment on individual wrongdoers and to developing punitive policies and institutions.

1. Punishment as a Problem: I. Punishment, Theodicies, and Meaning; II. The Axiological and the Deontic; III. Monism and Pluralism; IV. Conflicts, Remainders, and Forgiveness; V. Overview; 2. Prolegomena to any Future Axiology: I. Ideal Utilitarianism, Desert, and the Richness of the Moral Universe; II. Organic Wholes and the Sounds of Justice; III. Variance and its Discontents; IV. Conclusion; 3. The Persistence of Consequentialism: I. Giving Desert its Due; II. The Pieties of Impunity; III. The Avoidance of Suffering and Sour Grapes; IV. Conclusion; 4. The Gerrymandering Gambit: Retributivism in the Budget Room: I. Holistic Retributivism and Sharing Stages; II. Emotions, Moral Luck, and Arrogance; III. Cutting Oneself Off from the Human Condition; IV. Punishment, Revenge, and the Pale Cast of Thought; V. Talking to Oneself; VI. Conclusion; 5. Communication, Forgiveness, and Topography: I. The Limits of Communication; II. Games People Play; III. A Variety of Skepticisms; IV. Tales from Topographic Oceans; V. Conclusion; 6. The Allure of the Ledger: Better Than a Dog Anyhow: I. Moral Luck and Moral Mathematics; II. The Critique of the Morality System; III. Punishment, the Peculiar Institution; IV. Pluralism, the Value of Forgiveness, and the Messiness of the World; V. Conclusion; 7. The Right Kind of Complexity: I. Retributivism and Magical Thinking; II. Utilitarianism, Forgiveness, and Moral Reasons; III. Micro-Managing Life; IV. From Unconditional Forgiveness to Unconditional Punishment; V. Conclusion; 8. The Jugglery of Circumstances: Dirty Hands and Impossible Stories: I. Punishing Innocence; II. Moral Taints: From Aulis to Theresienstadt; III. Moral Brilliance and Moral Imagination; IV. Conclusion.

Leo Zaibert is Professor and Chair of the Department of Philosophy at Union College, New York.