Peculiarly Criminal: Resolving the prudential deterrence problem

Abstract

This article contributes to the debate in the philosophy of law over the justification of punishment. It focusses on the ‘communicative’ theory of punishment as articulated by Antony Duff in his chapter of the recently published Oxford Handbook of the Philosophy of Punishment (2024). In the chapter Duff elaborates his theory and proposes that the ‘prudential deterrence’ problem is the most serious objection to it. In this article I propose a novel solution to the problem. I argue that the problem arises from Duff’s failure to properly outline the role of his theory in relation to the different kinds of law (principally criminal and non-criminal). Accordingly, I clarify this relation by suggesting that the communicative theory ought to be designated as what justifies the criminal law in particular, while the considerations raised by the prudential deterrence problem are what defines the law apart from particular criminal or non-criminal considerations.