University of Pennsylvania Carey Law School Penn Law: Legal Scholarship Repository Faculty Scholarship at Penn Law 2011 Two Kinds of Retributivism Mitchell N. Berman University of Pennsylvania Carey Law School Follow this and additional works at: https://scholarship.law.upenn.edu/faculty_scholarship Part of the Criminal Law Commons, Ethics and Political Philosophy Commons, Law and Philosophy Commons, Law Enforcement and Corrections Commons, and the Public Law and Legal Theory Commons Repository Citation Berman, Mitchell N., "Two Kinds of Retributivism" (2011). Faculty Scholarship at Penn Law. 2353. https://scholarship.law.upenn.edu/faculty_scholarship/2353 This Article is brought to you for free and open access by Penn Law: Legal Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship at Penn Law by an authorized administrator of Penn Law: Legal Scholarship Repository. For more information, please contact
[email protected]. Draft, April 7, 2010. Please do not cite, quote or distribute. TWO KINDS OF RETRIBUTIVISM Mitchell N. Berman* Introduction The philosophy of criminal law covers a broad range of concerns. Its practitioners explore such diverse conceptual and normative matters as the character of a culpable act and the proper contours of criminal liability for an omission, the principles of causation, the difference between defenses of justification and of excuse, the nature of complicity, and a variety of puzzles involving attempts, among innumerable other topics. Historically, however, one question has dominated the rest: in virtue of what is the state morally justified in subjecting an individual to criminal punishment—i.e., the intentional infliction of suffering and/or the deprivation of substantial liberties, joined to moral censure or condemnation? Answers to this question routinely travel under the heading of “theories of punishment,” though “justifications for punishment” would be more apt.