Retributivism is usually taken to be a theory of the justification of punishment. In this contribution, I develop an alternative understanding of retributivism. Rather than as a theory of the justification of punishment, I propose to regard it as a hermeneutic theory, i.e.a theory about how we understand punishments. I start with an explanation of what "hermeneutical retributivism" is. In what follows, I examine the ramifications of this view. It leads to a different assessment of the relation between retributive theories (...) and prevention theories and of the relation between punishments and non-punitive mea- sures such as preventive custody. It also leads to a reconceptualisation of the problem of the justification of punishments. Some concluding remarks summarize the arguments in favor of hermeneutical retributivism. (shrink)

Some argue against coercive preventive measures on the grounds that they amount to cloaked forms of punishment. Others offer a qualified defence of such measures on the grounds that such measures have substantively different goals and purposes from punishment. Focusing on the case of civil preventive injunctions, I clear the ground and provide reasons for a third logical possibility: that coercive preventive measures are relevantly similar to punishment, but this does not itself give us a reason to oppose them. ‘Punishment’ (...) has a great deal of rhetorical force, and it thereby distracts us from the justificatory work that we need to do to specify proper restrictions on the state’s coercive powers. Whereas many commentators have proposed that legal theory provides grounds for challenging civil preventive orders, I argue for the opposite view. If we understand properly the function of civil preventive orders, we will endorse them at least in principle, and will come to rethink some central ideas in the grounding of the criminal justice processes. (shrink)