It also satisfies our intuition that punishment should be applied only to the guilty. .
While it is undoubtedly right to limit punishment to wrongdoers, the question arises as to whether relegating the retributivist principle to a mere formula for distribution really does satisfy our retributivist feelings. The common reaction, for example, upon hearing of Paul Bernardo' s torture and murder of Leslie Mahaffy and the subsequent mutilation of her body, is one of reprobation, outrage, and even revulsion. As John Mackie points out, we feel that wrong actions call for a hostile response. The positive retributivist principle has "immediate, underived moral appeal."(Hart, 1968) According to Mackie, if we did not feel the pull of positive retributivism, we would not be persuaded that arguments justifying punishment on the basis of some social benefit "would make it morally right to inflict suffering or deprivation on the criminal."(Hart, 1968) These observations indicate that feelings of reprobation towards the wrongdoer may, indeed, be one of the justifying reasons for punishment. .
Hart's mixed theory, though, simply does not explain the deeply reprobative nature of punishment. He claims, in fact, that denunciation of the crime is not a justification for punishment. He says the suggestion that it is should be treated as "a blurred statement of the truth that the aim not of punishment, but of criminal legislation is indeed to denounce certain types of conduct as something not to be practiced." (Hart, 1968) There can be no doubt that criminal legislation defines and denounces certain types of actions in a formal, impersonal way. The legislation, which is educative, is directed at the entire community. It communicates to the members of society which types of actions are forbidden. It has the socially beneficial aim of deterring crime. In other words, criminal legislation is a form of impersonal communication with the entire community.
