Punishment: Theory and PracticeWhat actions should be punished? Should plea-bargaining be allowed? How should sentencing be determined? In this original, penetrating study, Mark Tunick explores not only why society punishes wrongdoing, but also how it implements punishment. Contending that the theory and practice of punishment are inherently linked, Tunick draws on a broad range of thinkers, from the radical criticisms of Nietzsche, Foucault, and some Marxist theorists through the sociological theories of Durkheim and Girard to various philosophical traditions and the "law and economics" movement. He defends punishment against its radical critics and offers a version of retribution, distinct from revenge, that holds that we punish not to deter or reform, but to mete out just deserts, vindicate right, and express society's righteous anger. Demonstrating first how this theory best accounts for how punishment is carried out, he then provides "immanent criticism" of certain features of our practice that don't accord with the retributive principle. Thought-provoking and deftly argued, Punishment will garner attention and spark debate among political theorists, philosophers, legal scholars, sociologists, and criminologists. This title is part of UC Press's Voices Revived program, which commemorates University of California Press's mission to seek out and cultivate the brightest minds and give them voice, reach, and impact. Drawing on a backlist dating to 1893, Voices Revived makes high-quality, peer-reviewed scholarship accessible once again using print-on-demand technology. This title was originally published in 1992. What actions should be punished? Should plea-bargaining be allowed? How should sentencing be determined? In this original, penetrating study, Mark Tunick explores not only why society punishes wrongdoing, but also how it implements punishment. |
Contents
ix | |
6 | |
10 | |
A Retributive Immanent Criticism of Legal Punishment | 11 |
Radical Criticisms of the Practice of Legal Punishment | 15 |
Nietzsche and Foucault | 17 |
Karl Menninger | 35 |
4 Marxist as Radical Critic | 44 |
2 Retributive Justifications of Legal Punishment | 82 |
3 Deciding between the Utilitarian and Retributive Accounts | 105 |
Retributive Immanent Criticism of Legal Punishment | 110 |
2 Immanent Criticism in a Complex Practice | 113 |
3 Practical Problems of Legal Punishment | 117 |
4 A Consequential Retributivism | 160 |
Immanent Criticism of an Essentially Contested Practice | 163 |
The Turn to Interpretation | 164 |
5 The Activity of Justifying a Whole Practice | 54 |
6 Immanent against Radical Criticism | 63 |
Justifications of the Practice Utilitarian and Retributive | 65 |
1 Utilitarians | 67 |
3 An Objection to the Retributive Interpretation of Punishment | 169 |
4 The Contemporary UtilitarianRetributive Debate | 170 |
5 Retributive Immanent Criticism in an Essentially Contested Practice | 178 |
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Common terms and phrases
actions actual practice anger appealing argues argument Barnett Beccaria Bentham chapter claim clutching committed concept condemnation convicted court criminal justice system criminal law defend deserved deter essay essentially contested practice example exclusionary rule Feinberg Foucault G. W. F. Hegel genealogy guilty H. L. A. Hart Hanna Pitkin Hart Hegel Hentig Ibid idea immanent critic inflicting punishment inside the practice insist interpretation ishment Joel Feinberg judge justify Kant Karl Menninger legal punishment lex talionis Marxist means Menninger mens rea ment mete moral Nietzsche Nietzsche's offense penal person philosopher plea plea-bargaining police political crime Posner prac practice of legal practitioners principle immanent principle of utility prison purpose of punishment question radical critics reason reform retributive account retributive principle retributivism retributivist revenge sense sentence society strict liability subpractice Theories of Punishment theorist tice University Press utilitarian vengeance violation whole practice wrong York