I. A CENTURY (OR SO) AND A TAXONOMY (1)
From the turn of the twentieth century (e.g., in Hastings Rashdell's "The Ethics of Forgiveness" (2)) until the end of the nineteen fifties (e.g., in H.L.A. Hart's "Prolegomenon to the Principles of Punishment" (3)), at least one thing was agreed upon in the philosophy of punishment: consequentialism, deontology, or a mixed theory of the two were the only normative ethical theories that could possibly justify the punishment of a citizen by the state. (4) With these justificatory constraints agreed upon, much of the debate revolved around which normative ethical theory could indeed justify legal punishment. Unanimous agreement, it goes without saying, was elusive; but it is worth noting that many philosophers of punishment were convinced of two things: (i) unadulterated consequentialism seemed to justify the punishment of innocent citizens (e.g., whenever the punishment of an innocent citizen would bring about the best consequences); and (ii) unadulterated deontology seemed to offer citizens as sacrifices to some abstract moral law or duty (e.g., whenever a moral law or duty enjoined punishment without concern for the consequences of the punishment). (5) As a result, some philosophers attempted to ameliorate and defend consequentialist justifications of punishment; some philosophers attempted to ameliorate and defend deontological justifications of punishment; and some philosophers attempted to avoid the perceived weaknesses of consequentialist and deontological justifications by constructing mixed theories of justification. (6) For the first sixty years of the twentieth century, then, every attempt to justify legal punishment (henceforth "punishment") was grounded in consequences, duties, or both.
In nineteen fifty-eight, however, Elizabeth Anscombe argued that deontology and consequentialism were literally incoherent outside of a law conception of ethics (a conception ostensibly found in the Judaic, Christian, and Islamic traditions); for they necessarily made use of concepts that could not exist outside of a law conception of ethics--concepts such as "duty" and "obligation" and "requirement." In place of deontology and consequentialism, Anscombe argued for a return to Aristotelian virtue ethics. (7) Whatever the merits of Anscombe's arguments, her suggestion galvanized other philosophers--e.g., Alaisdair MacIntyre, Bernard Williams, Philippa Foot--and it was not long before virtue ethics reemerged as a rival to consequentialism and deontology. Indeed, by the twenty-first century, some philosophers were willing to declare that virtue ethics had achieved full status as a normative ethical theory. (8)
Given this protracted change in normative ethics (from the nineteen sixties until the present), one would expect to see a corresponding change in the debate over the justification of punishment. More specifically, one would expect to see some philosophers of punishment attempting to justify punishment via virtue ethics, not just consequentialism, deontology, or some mixture of the two. Strangely, this is not what one sees in the literature. As far as I can tell, from the nineteen sixties until the present, only one legal philosopher--Kyron Huigens--has justified punishment via virtue ethics, and this has been only recently. (9) It is as if philosophers of punishment have never heard of virtue ethics. (10)
Taking all of the above into account, it is clearly time to expand the taxonomy of the normative ethical theories that could possibly justify punishment. At the very least, the taxonomy must include four genera:
(1) Consequentialism: For all X, the state ought to punish X if and only if punishing X will bring about the best consequences--and the best consequences determine our duties and the virtues, not vice versa. Here, then, the good (understood in terms of consequences) is logically prior to duty and virtue, viz., duty and virtue are defined in terms of the good. …