Punishment as an Argument: In Defence of a Neutral Conception

Abstract

This article analyses the concept of punishment. This concept can be analysed as a normative, retributive concept (‘normative conception’); however, a justificatory neutral and formal analysis is also available (‘neutral conception’). Analysing punishment is important, particularly because legislators around the world have shown a tendency to circumvent the criminal law regime simply by claiming that a certain imposition of harm does not constitute punishment. The imposition is said to be a measure or an order and as such there is no need for it to be governed by the principles of the criminal law. This implies that the notions of ‘punishment’, ‘measure’, ‘order’ and so on are more than just labels in our debates on the criminal law. All too often they serve the function of argument. In response, I believe that one of the ways to judge whether a conception of punishment is fruitful is to determine how well it is equipped to expose any conceptual tricks. I argue in this article that the neutral conception is more fruitful in this respect than the normative conception.