Until very recently the dominant approach to the theory of punishment has been to discuss it in isolation from any general theory of the just distribution of benefits and burdens in a society. Almost without exception, the debate between the competing theories of punishment has run separately from the theory of distributive justice, as if the words “just” in “just punishment” and “just reward” belonged to two different species of “justice”. Perhaps the most important exception to this rule has been the position of radical utilitarians — i.e., act-utilitarians of J. J. C. Smart's genre, or wealth-maximization theorists of Richard Posner's ilk — who consciously treat the domains of economic distribution and of criminal punishment as two areas of application of one and the same set of over-arching principles. But, since neither for Smart nor for Posner is distributive justice (whether regarding economic goods, or penalties) a morally significant virtue, their theories really do not detract from the general trend that, in the literature on punishment, the conceptions of retributive and distributive justice are largely independent.
Reflections on Some Theories of Punishment
