Chapter

Punishment and Desert-adjusted Utilitarianism

Jesper Ryberg

in Retributivism Has a Past

Published in print December 2011 | ISBN: 9780199798278
Published online January 2012 | e-ISBN: 9780199919376 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199798278.003.0005

Series: Studies in Penal Theory and Philosophy

Punishment and Desert-adjusted Utilitarianism

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This chapter focuses on one theoretical alternative to retributivism. It considers the version of desert-adjusted consequentialism that has been most thoroughly developed by its recent advocates, namely, desert-adjusted utilitarianism. The chapter is organized as follows. Section I presents the theory and outlines some of its implications with regard to the justification of punishment. Section II points out that in order for the theory to be operational—that is, in order to provide genuine action guidance with regard to how criminals should be punitively dealt with—there are several theoretical challenges that need to be met; challenges, however, that do not seem to allow for easy answers. Section III presents a moral objection against the theory. The overall thinking behind this criticism is the simple assumption that the idea of a hybrid theory is to avoid the difficulties with which each of the involved theories in its pure form is confronted, while at the same time maintaining the insights of both. Or, somewhat more modestly, that such a theory must have a comparative advantage. While it is hard to compare the pros and cons of different theories, it is dubious that desert-adjusted utilitarianism in this respect constitutes a viable position. However, the fact that it is possible to let desert considerations operate within a consequentialist framework directs attention to a weakness in the way in which retributivism has been defended within the modern era of penal theory.

Keywords: retributivism; desert-adjusted consequentialism; punishment; penal theory

Chapter.  8819 words. 

Subjects: Criminal Law

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