Publications and Research
Document Type
Book Chapter or Section
Publication Date
2024
Abstract
Philosophers of punishment have paid little attention to resource constraints, which have an undeniable impact on how various approaches to punishment work in the real world. It has fallen on economists, with their central focus on scarcity and opportunity cost, to analyze the resource demands of different philosophies of punishment. However, the utilitarian nature of mainstream economics limits the scope of economic theories of punishment to deterrence, which fits naturally into mathematical economic techniques, as opposed to retributivism, the principled nature of which resists quantification. This chapter explores the resource implications of punishment. It starts by identifying shortcomings of the economic analysis of deterrence, and then considers proposals from economists and legal scholars to incorporate resource constraints into retributivism, many of which introduce some degree of quantification or consequentialism. The rest of the chapter proposes an alternative choice procedure, based on the theory of judicial decision-making of Ronald Dworkin, which enables incommensurate principles and goals to be considered and balanced against each other, with resource constraints serving a secondary role in resolving conflicts. This way of including resource concerns into discussions of punishment emphasizes their importance while avoiding the reduction of all aspects of punishment to the terms of efficiency, which would distort their true nature and introduces unnecessary noise and inaccuracy to the analysis.
Comments
Forthcoming in The Oxford Handbook of the Philosophy of Punishment, ed. Jesper Ryberg, Oxford University Press, 2024, pp. 627–641.