International Journal of Applied Philosophy

Volume 22, Issue 1, Spring 2008

Whitley Kaufman
Pages 37-57

The Rise and Fall of the Mixed Theory of Punishment

In the middle of the twentieth century, many philosophers came to believe that the problem of morally justifying punishment had finally been solved. Defended most famously by Hart and Rawls, the so-called “Mixed Theory” of punishment claimed that justifying punishment required recognizing that the utilitarian and retributive theories were in fact answers to two different questions: utilitarianism answered the question of why we have punishment as an institution, while retribution answered the question of how to punish individual wrongdoers. We could thus reconcile the two great competing theories of punishment, and show how they were both right and not in conflict at all. Unfortunately, it gradually became apparent that the solution would not work. This essay attempts to set out the reasons why the Mixed Theory was bound to fail, and why the problem of reconciling the utilitarian and retributive goals remains with us.