Abstract

One way out to avoid this tension is to adopt what legal theorists call a “mixed theory,” which presents the different penal elements as answering to different concerns. For example, one could hold that the justification of the institution of punishment requires a consequentialist answer focussed on various types of deterrence aimed at promoting social well-being, but that the distribution of actual punishments is decided in terms of desert and the degree of moral culpability of the criminal. This is the type of mixed theory A. J. Milne claimed to have found in Green’s Lectures on the Principles of Political Obligation. By contrast, Bradley is often interpreted as holding the converse mixed theory, according to which a right to punish is established via some retributive argument but, once this right is established, consequentialist considerations can then be introduced to determine the actual punishments doled out. The passage usually cited includes this sentence: “Having once the right to punish, we may modify the punishment according to the useful and the pleasant.”