Oxford Journal of Legal Studies Advance Access originally published online on November 4, 2007
Oxford Journal of Legal Studies 2007 27(4):683-705; doi:10.1093/ojls/gqm020
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How To Reconcile Liberal Politics with Retributive Punishment
* Philosophy Department and Wits Centre for Ethics, University of the Witwatersrand. Email: Thaddeus.Metz{at}wits.ac.za.
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Abstract |
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There is a deep tension between liberalism and retributivism. On the face of it, one cannot coherently believe liberalism about the fundamental purpose of the state and retributivism about the basic end of legal punishment, given widely held and well-motivated or what I call ‘standard’ conceptions of these views. My aims in this article are to differentiate the types of conflict between liberalism and retributivism, to identify the strongest and most problematic type of conflict between them, to demonstrate that existing strategies in the literature that might be invoked to resolve this conflict fail, and to present a new, conclusive way to resolve it. The solution lies in changing the standard conception of liberalism, which change, I argue, is warranted on independent grounds. Liberalism, up to now, has been conceived in a way that fails to best capture liberal intuitions. Upon improving our understanding of what liberal purposes essentially are, it becomes clear that retributive punishment is not merely logically consistent with them, but also partially constitutive of them.