David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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Legal Theory 18 (1):1-29 (2012)
Criminal law theorists overwhelmingly agree that for some conduct to constitute punishment, it must be imposed intentionally. Some retributivists have argued that because punishment consists only of intentional inflictions, theories of punishment can ignore the merely foreseen hardships of prison, such as the mental and emotional distress inmates experience. Though such distress is foreseen, it is not intended, and so it is technically not punishment. In this essay, I explain why theories of punishment must pay close attention to the unintentional burdens of punishment. In two very important contexts — punishment measurement and justification — we use the term “punishment” to capture not only intentional harsh treatment but certain unintentional harsh treatment as well. This means that the widely accepted view that punishment is an intentional infliction requires substantial caveats. It also means that any purported justification of punishment that addresses only the intentional infliction of punishment is woefully incomplete. [This paper has been published under a Creative Commons Attribution-NonCommercial-ShareAlike license.]
|Keywords||punishment retributivism intention doctrine of double effect prison consequentialism subjective experience|
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References found in this work BETA
K. G. Armstrong (1961). The Retributivist Hits Back. Mind 70 (280):471-490.
Mitchell N. Berman (2008). Punishment and Justification. Ethics 118 (2):258-290.
Joseph M. Boyle Jr (1980). Toward Understanding the Principle of Double Effect. Ethics 90 (4):527-538.
David Enoch (2007). Intending, Foreseeing, and the State. Legal Theory 13 (2):69.
Douglas N. Husak (1992). Why Punish the Deserving? Noûs 26 (4):447-464.
Citations of this work BETA
Douglas Husak (2014). Social Engineering as an Infringement of the Presumption of Innocence: The Case of Corporate Criminality. [REVIEW] Criminal Law and Philosophy 8 (2):353-369.
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