Criminal Law and Philosophy 5 (3):361-376 (2011)
|Abstract||The purely retributive moral justification of punishment has a gap at its centre. It fails to explain why the offender should not be protected from punishment by the intuitively powerful moral idea that afflicting another person (other than to avoid a greater harm) is always wrong. Attempts to close the gap have taken several different forms, and only one is discussed in this paper. This is the attempt to push aside the â€˜protectingâ€™ intuition, using some more powerful intuition specially invoked by the situations to which criminal justice is addressed. In one aspect of his complex defence of pure retributivism, Michael S. Moore attempts to show that the emotions of well-adjusted persons provide evidence of moral facts which justify the affliction of culpable wrongdoers in retribution for their wrongdoing. In particular, he appeals to the evidential significance of emotions aroused by especially heinous crimes, including the punishment-seeking guilt of the offender who truly confronts the reality of his immoral act. The paper argues that Moore fails to vindicate this appeal to moral realism, and thus to show that intrinsic personal moral desert (as distinct from â€˜desertâ€™ in a more restricted sense, relative to morally justified institutions) is a necessary and sufficient basis for punishment. Other theories of the role of emotions in morality are as defensible as Mooreâ€™s, while the compelling emotions to which he appeals to clinch his argument can be convincingly situated within a non-retributivist framework, especially when the distinction between the intuitions of the lawless world, and those of the world of law, is recognised|
|Keywords||justification of punishment retributive theory moral significance of emotions desert resentment guilt moral realism|
|Through your library||Configure|
Similar books and articles
Lene Bomann-Larsen (2009). Revisionism and Desert. Criminal Law and Philosophy 4 (1):1-16.
Howard Simmons (2010). Moral Desert: A Critique. University Press of America.
Tamler Sommers (2009). The Two Faces of Revenge: Moral Responsibility and the Culture of Honor. Biology and Philosophy 24 (1):35-50.
Brian Rosebury (2009). Private Revenge and its Relation to Punishment. Utilitas 21 (1):1-21.
Greg Roebuck & David Wood (2011). A Retributive Argument Against Punishment. Criminal Law and Philosophy 5 (1):73-86.
Jules Holroyd (2010). The Retributive Emotions: Passions and Pains of Punishment. Philosophical Papers 39 (3):343-371.
J. Angelo Corlett (2001). Making Sense of Retributivism. Philosophy 76 (1):77-110.
Raffaele Rodogno (2010). Guit, Anger, and Retribution. Legal Theory 16 (1):59-76.
Jami L. Anderson (1997). Reciprocity as a Justification for Retributivism. Criminal Justice Ethics 16 (1):13-25.
Benjamin Vilhauer (2013). Persons, Punishment, and Free Will Skepticism. Philosophical Studies 162 (2):143-163.
Richard Stalley (2012). Adam Smith and the Theory of Punishment. Journal of Scottish Philosophy 10 (1):69-89.
Adam J. Kolber (2009). How to Improve Empirical Desert. Brooklyn Law Review 75 (2):433-461.
Thaddeus Metz (2000). Censure Theory and Intuitions About Punishment. Law and Philosophy 19 (4):491-512.
D. Dolinko (1997). Retributivism, Consequentialism, and the Intrinsic Goodness of Punishment. Law and Philosophy 16 (5):507-528.
Nathan Hanna (2009). The Passions of Punishment. Pacific Philosophical Quarterly 90 (2):232-250.
Added to index2011-04-01
Total downloads14 ( #83,183 of 549,198 )
Recent downloads (6 months)1 ( #63,397 of 549,198 )
How can I increase my downloads?