Retributive and deterrence theories of punishment
The existing theories of punishment
view the rules of evidence and the rules of criminal procedure--not the substantive rules of criminal law--as the legal vessels charged with protecting innocent defendants.
Other aspects of particular theories of punishment
might provide restraints on the scope of the criminal law, but we will know what those restraints are only by investigating those particular theories in detail.
Beccaria rejects retributive theories of punishment
and argues for a system of publicly engineered penalties that would deter crimes and generate greater utility:
Third, to the extent that Murphy's concern here is sound, it would indict not just retributive justice, but likely all theories of punishment
For recent scholarship complicating the dominant understanding of retributivism, and challenging the strict divide between retfibutivist and consequentialist theories of punishment
, see Mitchell N.
However, to claim that no due has been given to the talion is incorrect, especially in light of the considerable work done on the vindictive emotions in respect of theories of punishment
and forgiveness, by such authors as Jeffrie Murphy and Jean Hampton.
The principal alternative to retributive theories of punishment
, of course, are those theories that justify punishment on consequentialist grounds.
The "scapegoating objection" is aimed particularly at consequentialist theories of punishment
She then relates these findings to theories of punishment
put forth by von Hirsch (1993) and Duff (2001).
expressivist thesis is at home with conventional theories of punishment
Consequentialist theories of punishment
must appeal indirectly to the widespread belief that punishment is deserved for crime, and argue that if the law did not accommodate this belief, then negative consequences for social welfare--self-help, blood feud, and anarchy--would ensue.