Marc DeGirolami’s searching recent essay in this Journal is — appropriately enough — hard to categorize, or even to summarize. It aims to criticize the rise of “theory” in the academic study of criminal punishment, but it does not stop at merely being critical. Rather, it attempts to revive the thought of James Fitzjames Stephen, and also to urge a better way of looking at the study of punishment: one that is more historically oriented as well as more pluralist. Stephen’s thought, DeGirolami complains, has been misunderstood and flattened, and it is our loss. We have lost not only the views of a surprising, and surprisingly relevant, historical figure, but more importantly we have lost a kind of sensitivity that is missing in much of contemporary philosophy of punishment.
I want to resist DeGirolami’s praise of Stephen, but more than this, I want to register an objection to his near-universal panning of theory. Theory in any case is poorly defined by DeGirolami, which ironically prevents him from seeing how Stephen himself was a theoretician, and how DeGirolami’s own pluralism is a theory, albeit an incomplete one (at best). Moreover, it is theory itself that shows us how Stephen is mistaken on several key substantive issues and why we are right to leave Stephen largely behind.
My paper divides into three parts. The first part is heavily critical of DeGirolami’s case against theory: the brickbats he throws at theory are poorly developed and for the most part misfire. What we need is not to get rid of theory (supposing this is even possible), but to have a better understanding of what theory is. The second part, more positive, aims to develop in a little more detail Stephen’s positions on various issues. Stephen had theories about criminal law and how to think about it, theories worth taking seriously. But at the same time, they were theories we should ultimately reject. I briefly conclude on the relevance of history to contemporary punishment theory and expand a little more on what I’ve said earlier about what punishment theory should become. Pace DeGirolami, we need punishment theory more than ever but punishment theory of the right kind.