David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
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|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library|
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.
Similar books and articles
Adam J. Kolber (2009). The Subjective Experience of Punishment. Columbia Law Review 109:182.
Bill Wringe (2013). Must Punishment Be Intended to Cause Suffering? Ethical Theory and Moral Practice 16 (4):863-877.
J. Angelo Corlett (2001). Making Sense of Retributivism. Philosophy 76 (1):77-110.
David Wood (2010). Punishment: The Future. Philosophy Compass 5 (6):483-491.
David Wood (2010). Punishment: Consequentialism. Philosophy Compass 5 (6):455-469.
Alan Wertheimer (1977). Punishing the Innocent — Unintentionally. Inquiry 20 (1-4):45 – 65.
Thom Brooks (2003). Kant's Theory of Punishment. Utilitas 15 (02):206-.
Michael Cholbi (2010). Compulsory Victim Restitution is Punishment: A Reply to Boonin. Public Reason 2 (1):85-93.
Ido Weijers (2000). Punishment and Upbringing: Considerations for an Educative Justification of Punishment. Journal of Moral Education 29 (1):61-73.
Nathan Hanna (2014). Retributivism Revisited. Philosophical Studies 167 (2):473-484.
Shawn J. Bayern, The Significance of Private Burdens and Lost Benefits for a Fair-Play Analysis of Punishment.
Larry Alexander (1983). Retributivism and the Inadvertent Punishment of the Innocent. Law and Philosophy 2 (2):233 - 246.
Jane Johnson (2008). Revisiting Kantian Retributivism to Construct a Justification of Punishment. Criminal Law and Philosophy 2 (3):291-307.
Adam J. Kolber (2009). The Comparative Nature of Punishment. Boston University Law Review 89 (5):1565-1608.
Jeremy Bentham (2009). The Rationale of Punishment. Prometheus Books.
Added to index2012-04-09
Total downloads23 ( #75,237 of 1,101,604 )
Recent downloads (6 months)6 ( #44,913 of 1,101,604 )
How can I increase my downloads?