Contemporary moral philosophy, political theory, and jurisprudence have converged to create a quite baffling dilemma. This dilemma is generated by the apparent incompatibility of three principles, each of which grounds features of our system of law and government, and each of which carries substantial normative weight. The first I shall call the punishment principle - a moral principle, doctrinally entrenched in American criminal and civil law, which holds that individuals who are morally justified in their actions ought not to be blamed or punished for those actions. The second is the principle of the rule of law - a complex jurisprudential principle that requires law to conform to a set of formal values, such as generality and coherence, as a means of protecting substantive moral values like liberty and equality. The third is the principle of democracy and the separation of powers - a principle of political morality that vindicates the right of majorities to be self-governing by assigning policymaking powers to a democratic legislature and restricting the executive and judiciary to the secondary tasks of policy implementation and application.
These three principles now serve as cornerstones of our legal and political systems. Yet, if genuinely incompatible, one or more of them must be abandoned: we must resign ourselves to the punishment of the justified or sacrifice systemic values that have long been invoked to justify our commitment to structural pluralism and rule-governed adjudication.
Heidi M. Hurd,
Justifiably Punishing the Justified,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol90/iss8/2