Punishment and Personal Responsibility

desert as such which does the justificatory work. But this is the price one
must pay for not settling for intrinsic-good retributivism.
A third thing to note is that it may seem as if I am confusing different
levels of analysis here. Whereas Dolinko wondered why desert
should count as a reason for the act of punishment, I have argued that
desert gives birth to a penal regime which is superior to other regimes.
Does this mean that I do not have anything to say about the most fundamental
question of all in the philosophy of punishment: what, if anything,
justifies punishment? No. While the institutional reason is obviously
not an argument for punishment as such – it is only an argument
for a particular kind of penal regime once we have one - the symbolic
reason is a direct argument for punishment. It states, as we have just
seen, that the act of retribution respects rule breakers as persons, which is
a good thing. This, then, counts in favour of a singular act of retributive
punishment just as it underscores the claim that a retributive penal regime
is symbolically superior to rival regimes.
Suppose that the institutional and symbolic reasons are sound, and
that they count in favour of a retributive answer to (Q). A final thing to
note is that it is unclear what the ultimate justification of that answer is.
Retributivism has of course traditionally been understood as a deontological
theory (Dolinko 1997). If my argument is read as a deontological
one, we would say that a retributive penal regime is good because it
treats people fairly and with respect, and thereby adheres to obligations
we have to each other. But this interpretation seems to be silent on a fundamental
question: why we have a practice of punishment in the first
place. It is one thing to argue that the institutional and symbolic reason
count in favour of preferring a retributive penal regime over ones based
on deterrence and rehabilitation. But can fair and respectful treatment
really explain why we are right in punishing rule breakers in the first
place? This not only questions whether retributivism can supply us with
an answer as to why we have a practice of punishment. More to the
point, it also questions whether the reasons in favour of a retributive
penal regime are really deontological. It might just as well be that they
are of a consequentialist, indeed even straightforwardly utilitarian sort: it
might be that we have reason to prefer a regime which gives us what we
deserve because it would leave us on aggregate better off than other regimes.
I will return to these difficult questions concerning the ultimate justification
of a retributive penal regime in the concluding chapter. Here it
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