The Jurisprudence of Punishment

INTRODUCTION Does a complete punishment theory require a particular theory of legality, that is, a theory of what makes a valid legal rule valid? I suspect that most punishment theorists' initial response to this question will be contradictory. On one hand, it seems obvious that a theory of punishment, if it is a theory of legal punishment, must assume some account of legality. It seems equally clear which theory of punishment matches which school of jurisprudence. We assume that an aretaic theory is necessarily part of a natural law jurisprudence or that a consequentialist punishment theory is tied somehow to legal positivism. Fewer observers would make a connection between Dworkinian jurisprudence and deontological punishment theory, but a shared emphasis on moral principle and right answers in hard cases makes it easy to draw an equally plausible connection there. On the other hand, if, as this answer assumes, we think of punishment theories as subdivisions of the great traditions in moral philosophy, then this answer must be wrong. Moral philosophy is orthogonal to jurisprudence as the plausible but entirely specious connection between Dworkin and Kant indicates--and if this is so, then there is no necessary connection between any particular jurisprudence and any particular theory of punishment. The fact that a theory of punishment does not require a theory of legality is trivial. To say, for example, that an aretaic theory of punishment can be reconciled with legal positivism means no more than to say that an aretaic theory of punishment can be reconciled with an interpretation of the gnostic gospels or a reading of Dr. Seuss. For the advocate of a punishment theory, however, establishing this trivial point is not itself trivial. For many of those interested in punishment theory, the point will in fact be a revelation. It is difficult to say how widespread this confusion is, but it seems sufficiently widespread to merit attention and correction. It matters to the field of punishment theory if a consequentialist in punishment theory dismisses natural law jurisprudence out of hand, particularly if she then uses that dismissal as a reason to reject an aretaic theory of punishment as well. To see that punishment theory and jurisprudence are orthogonal to one another would have the effect of removing this large and entirely illusory constraint on the development of punishment theory. The difficulty is that it is not clear that jurisprudence and punishment theory really are orthogonal to one another. For one thing, the presumed subordination of punishment theory to moral theory is false. The moral justification of punishment is only one of the standing questions that a theory of punishment addresses, if it is meant to be a comprehensive theory of punishment. And most of these other questions are not questions in moral theory. Instead, most questions in punishment theory concern the description of criminal law: What is the difference between a defense in the nature of justification and a defense denying responsibility for wrongdoing? Is culpability or, the term preferred here, criminal fault part of the structure of wrongdoing? If so, does fault apply per offense or per element? Does the term "excuse" refer to denials of responsibility, to the absence of fault, or to both? Where does duress or provocation fall in these categories? Given punishment theory's large descriptive component, we might begin to think that descriptive jurisprudence is not orthogonal to punishment theory at all. It is true that the two disciplines as ordinarily conducted have little or nothing to do with one another. Jurisprudence is focused exclusively on explaining the validity of legal norms, whereas the descriptive questions with which punishment theory is concerned ordinarily do not include the question of legal validity. On the other hand, there is no reason to assume that punishment theory is not sensitive to differing conceptions of legal validity--as the intuition behind the first answer to the opening question of this Essay indicates. …