Retributivism and Legal Moralism DAVID O. BRINK* Abstract. This article examines whether a retributivist conception of punishment implies legal moralism and asks what liberalism implies about retributivism and moralism. It makes a case for accepting the weak retributivist thesis that culpable wrongdoing creates a pro tanto case for blame and punishment and the weak moralist claim that moral wrongdoing creates a pro tanto case for legal regulation. This weak moralist claim is compatible with the liberal claim that the legal enforcement of morality is rarely all-thing-considered desirable. Though weak moralism has some plausibility, it does not follow from weak retributivism if legitimate state functions are limited in certain ways. Retributivism is the thesis that the reactive attitudes and practices of blame and punishment should track desert and that the basis of desert is culpable wrongdoing. Legal moralism is the thesis that the state can and should criminalize immorality, as such, independently of whether the immorality involves harm. Both retributivism and legal moralism are controversial doctrines, but legal moralism is certainly the more controversial doctrine. At least since John Stuart Mill’s On Liberty (1859) liberals have tended to be deeply skeptical about legal moralism. 1 Michael Moore (1997) has done much to revive interest in, re-examine, and defend the doctrines of retribu- tivism and moralism. Indeed, Moore has linked the two doctrines, arguing that retributivism commits one to legal moralism. The basic idea is that if wrongdoing deserves punishment, then wrongdoing ought to be criminal- ized. Since the moralist conclusion of this argument is more controversial than the retributivist premise, this is an interesting and ambitious argument. * I would like to thank the organizers of the University of Bologna conference on issues of law and morality in the work of Michael Moore for hosting the conference and conference participants for helpful discussion of my presentation. Special thanks go to Craig Agule, Amy Berg, Michael Moore, and Nicos Stavropoulos for their comments on an earlier version of this material. 1 References to Mill’s writings are to the definitive edition of his works in Mill 1965–91. To facilitate common reference among readers using different editions, I will refer to Mill’s texts by chapter and paragraph number. bs_bs_banner Ratio Juris. Vol. 25 No. 4 December 2012 (496–512) © 2012 The Author. Ratio Juris © 2012 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden 02148, USA.