Punishment and Justification

Human practices, like other phenomena, often encompass a core and a periphery. Here, Berman distinguishes core from peripheral cases of punishment. Roughly, the core involves "correct" cases; peripheral cases involve adjudicative error or the infliction of excessive punishment. She seeks to unearth the logic of justification by addressing two questions: what creates a need of justification, and how can such a need be met? She argues that for some practice to need justification, considerations must first be identified that place its overall justifiability or permissibility in doubt. She justifies punishment in light of the analysis of justification and identifies the demand basis that underlies the proposition that punishment stands in need of justification. She argues that core cases of punishment are justified by cancellation on retributivist grounds and that peripheral cases of punishment are justified by override on consequentialist grounds. Finally, she suggests that peripheral cases can be justified against this demand basis only if the consequential benefits produced by such punishment have overriding weight.