Thoughts on Zaibert’s Rethinking

Michael T. Cahill

In responding to Leo Zaibert’s Rethinking Punishment, I face a daunting although not altogether unwelcome challenge, namely that I am in firm and fundamental agreement with its central claims. Like Zaibert, I have spent some time in the past arguing against deontic retributivism (and addressing the work of some of the same scholars, such as Michael Moore) and have also spent some time arguing against theoretical monism and in favor of a more pluralistic account of punishment—not to spoil anything for potential readers of my work, but the title of my book chapter “Punishment Pluralism” pretty much gives the ending away in this regard. In rejecting a deontic and monistic account of retribution, I have advanced a framework I described as consequentialist retributivism, which would probably prove to have some modest distinctions from what Zaibert calls axiological retributivism if we worked out every last detail, but our general perspectives certainly have much more in common than not. We both reject the notion of retribution as a deontic duty, would characterize it more as an intrinsic good (or value), and recognize that it coexists with various other goods or values that the state generally, and the criminal-justice system in particular, must also pursue. I should note that, happily for my confidence in the soundness of these views yet unhappily for my sense of having made a unique contribution to the intellectual conversation, Zaibert and I are not at all alone among recent commentators in adhering to these positions.