This collection of new essays aims to address some of the most perplexing issues arising from death and dying, as well as the moral status of persons and animals. Leading scholars, including Peter Singer and Gerald Dworkin, investigate diverse topics such as animal rights, vegetarianism, lethalinjection, abortion and euthanasia.
This paper contributes to the normative debate over capitalpunishment by looking at whether the role of executioner is one in which it is possible and proper to take pride. The answer to the latter question turns on the kind of justification the agent can give for what she does in carrying out the role. So our inquiry concerns whether the justifications available to an executioner could provide him with the kind of justification necessary for him to take (...) pride in what he does. If they cannot, I argue, this sheds some light on their adequacy as justifications. The main argument of the paper is that social control arguments for the death penalty fail to provide an adequate justification. I also give some consideration to retributive justifications. The argument is developed through close attention to the depiction of Albert Pierrepoint in the film, Pierrepoint: The Last Hangman. (shrink)
This article argues that even if we grant that murderers may deserve death in principle, retributivists should still oppose capitalpunishment. The reason? Our inability to know with certainty whether or not individuals possess the necessary level of desert. In large part due to advances in science, we can only be sure that no matter how well the trial is administered or how many appeals are allowed or how many years we let elapse, we will continue to execute (...) innocent persons for as long as we legalize capitalpunishment. Thus, on grounds of desert, this article argues that retributivists should oppose capitalpunishment. (shrink)
This book examines the extremely important issue of the consistency of medical involvement in ending lives in medicine, law and war. It uses philosophical theory to show why medical doctors may be involved at different stages of the capitalpunishment process. The author uses the theories of Emmanuel Kant and John S. Mill, combined with Gerwith's principle of generic consistency, to concretize ethics in capitalpunishment practice. This book does not discuss the moral justification of (...) class='Hi'>capitalpunishment, but rather looks at the possible forms of involvement and shows why consistency would demand medical involvement. The author takes a general approach, using arguments that may apply universally. The book broaches different academic fields, such as medicine, ethics, business, politics and defense. The Ethics of Medical Involvement in CapitalPunishment is of interest to students, teachers, lecturers and researchers working in the areas of capitalpunishment, medical, legal and business ethics, and political philosophy. (shrink)
One of the many arguments against capitalpunishment is that execution is irrevocable. At its most simple, the argument has three premises. First, legal institutions should abolish penalties that do not admit correction of error, unless there are no alternative penalties. Second, irrevocable penalties are those that do not admit of correction. Third, execution is irrevocable. It follows that capitalpunishment should be abolished. This paper argues for the third premise. One might think that the truth (...) of this premise is self-evident. But in his paper “Is the Death Penalty Irrevocable?” Mike Davis argues that it is false: the death penalty is not irrevocable. While Davis’ argument is itself somewhat compelling, it receives additional support from work in the metaphysics of death, specifically the literature on posthumous harm. Strengthened in this way, the argument deserves careful consideration. I begin with a quick sketch of Davis’ argument, then show how the Pitcher-Feinberg theory of posthumous harm enables a more robust argument against the irrevocability of capitalpunishment, defending their theory of harm against standard objections in the literature. Having established the coherency of the robust argument, I conclude that it nevertheless fails to make the case against irrevocability. This is because it ignores the full set of practical requirements incumbent on legal institutions that wrongly punish someone. (shrink)
Most readers believe that it is difficult, verging on the impossible, to extract concrete prescriptions from the ethics of Emmanuel Levinas. Although this view is largely correct, Levinas’ philosophy can, with some assistance, generate specific duties on the part of legal actors. In this paper, I argue that the fundamental premises of Levinas’ theory of justice can be used to construct a prohibition against capitalpunishment. After analyzing Levinas’ concepts of justice, responsibility, and interruption, I turn toward his (...) scattered remarks on legal institutions, arguing that they enable a sense of interruption specific to the legal domain. It is here that we find the conceptual resources most important to my Levinasian abolition. I argue that the interruption of legal justice by responsibility implies what I call the principle of revisability. The principle of revisability states a necessary condition of just legal institutions: To be just, legal institutions must ensure the possibility of revising any and all of their rules, principles, and judgments. From this, the argument against capitalpunishment easily follows. Execution is a legal act, perhaps the only legal act, that cannot be undone. An application of the principle of revisability to this fact leads to the conclusion that legal institutions cannot justly impose capitalpunishment. After defending these points at length, I conclude with some observations on the consequences of the principle of revisability for law more generally. (shrink)
Our purpose in this paper is to consider a procedural objection to the death penalty. According to this objection, even if the death penalty is deemed, substantively speaking, a morally acceptable punishment for at least some murderers, since only a small proportion of those guilty of aggravated murder are sentenced to death and executed, while the majority of murderers escape capitalpunishment as a result of arbitrariness and discrimination, capitalpunishment should be abolished. Our targets (...) in this paper are two recent attempts, by Thomas Hurka and Michael Cholbi respectively, to defend the view that âlevelling downâ (that is, reducing the punishment imposed on a criminal from the punishment he absolutely deserves to a less severe punishment in order to achieve proportionality relative to the criminals who have escaped the punishment they absolutely deserve) is, in the context of capitalpunishment, morally permissible. We argue that both Hurka and Cholbi fail to show why the arbitrariness and discrimination objection impugns the death penalty. (shrink)
This article constitutes excerpts of a videotaped discussion hosted by the New England Journal of Medicine on January 14, 2008, concerning a range of topics on lethalinjection prompted by the United States Supreme Court's January 7 oral arguments in Baze v. Rees. Dr. Atul Gawande moderated the roundtable that included two anesthesiologists - Dr. Robert Truog and Dr. David Waisel - as well as law professor Deborah Denno. The discussion focused on the drugs used in lethal (...)injection executions, whether physicians should participate, potential alternatives, and some of the legal parameters of Baze. (shrink)
Many political philosophers today think of justice as fundamentally about fairness, while those who defend capitalpunishment typically hold that justice is fundamentally about desert. In this paper I show that justice as fairness calls for capitalpunishment because the continued existence of murderers increases unfairness between themselves and their victims, increasing the harm to murdered persons. Rescuing murdered persons from increasing harm is prima facie morally required, and so capitalpunishment is a prima (...) facie duty of society and sentencing judges.1. (shrink)
This paper reviews the concept of human dignity as it has evolved in recent decisions by the United States Supreme Court, and the paper then sketches a “rights based” theory of human dignity. Among the principles of human dignity is a principle of compensation for mistakes in the treatment of any person. A broad concept of mistake is outlined, and, in terms of this concept and the principles of dignity, the practice of capitalpunishment is examined. An argument (...) by Jeffrie Murphy against capitalpunishment is stated and criticized and a stronger argument against capitalpunishment is presented. (shrink)
Debate has long been waged over the morality of capitalpunishment, with standard arguments in its favour being marshalled against familiar arguments that oppose the practice. In The Ethics of CapitalPunishment, Matthew Kramer takes a fresh look at the philosophical arguments on which the legitimacy of the death penalty stands or falls, and he develops a novel justification of that penalty for a limited range of cases. -/- The book pursues both a project of critical (...) debunking of the familiar rationales for capitalpunishment and a project of partial vindication. The critical part presents some accessible and engaging critiques of major arguments that have been offered in support of the death penalty. These chapters, suitable for use in teaching courses on capitalpunishment, valuably take issue with positions at the heart of contemporary debates over the morality of such punishment. -/- The book then presents an original justification for executing truly terrible criminals, a justification that is free-standing rather than an aspect or offshoot of a general theory of punishment. Its purgative rationale, which has not heretofore been propounded in any current philosophical and practical debates over the death penalty, derives from a philosophical reconception of the nature of evil and the nature of defilement. -/- As the book contributes to philosophical discussions of those phenomena, it also contributes importantly to general normative ethics with sustained reflections on the differences between consequentialist approaches to punishment and deontological approaches. Above all, the volume contributes to the philosophy of criminal law with a fresh rationale for the use of the death penalty and with probing assessments of all the major theories of punishment that have been broached by jurists and philosophers for centuries. Although the book is a work of philosophy by a professional philosopher, it is readily accessible to readers who have not studied philosophy. It will stir both philosophers and anyone engaged with the death penalty to reconsider whether the institution of capitalpunishment can be an appropriate response to extreme evil. -/- . (shrink)
This paper argues that Immanuel Kant’s practical philosophy contains a coherent, albeit implicit, defense of the legitimacy of capitalpunishment, one that refutes the most important objections leveled against it. I first show that Kant is consistent in his application of the ius talionis. I then explain how Kant can respond to the claim that death penalty violates the inviolable right to life. To address the most significant objection – the claim that execution violates human dignity – I (...) argue that motives of honor, as Kant conceives it, require a rational person to will her own execution, were she to commit murder. (shrink)
Proponents and opponents of the death penalty both typically assume that punishment, in some form or other, is justified, somehow or other, and that just punishment must in some sense be proportionate to the crime. These shared assumptions turn out to embarrass both parties. Proponents have to explain why certain prima facie proportionate punishments, such as torture, are off the table, while death remains, so to speak, on it. Opponents have to explain why their favored alternatives to (...) class='Hi'>capitalpunishment, such as life without parole, are both proportionate to the worst crimes and not as bad as death. The commitment to proportionality makes trouble for both sides of the issue, and its resolution is unlikely until there is a satisfactory general account of proportionality in punishing. Such an account is nowhere in sight. (shrink)
Abstract In The Problem of Punishment, David Boonin offers an analysis of punishment and an account of what he sees as ethically problematic about it. In this essay I make three points. First, pace Boonin's analysis, everyday examples of punishment show that it sometimes isn't harmful, but merely ?discomforting.? Second, intentionally ?discomforting? offenders isn't uniquely problematic, given that we have cases of non-punitive intentional discomforture?and perhaps even harmful discomforture?that seem unobjectionable. Third, a notable fact about both non-harmful (...)punishment and non-punitive intentional discomforture is that they aim at improving the subject. This suggests that, if the prima facie wrongness of intentionally harming another person is the fundamental challenge for punishment, the ?educative defense? is the royal road to justifying the practice. I conclude by outlining one version of the educative defense that exploits this advantage while avoiding some traditional objections to the approach. (shrink)
Hegel claims that punishment is justified because it annuls crimes thereby revealing the criminal act for what it is, a will “null and void.” In this paper I analyze the complex notion of annulment, arguing that Hegel is claiming that punishment does not change the past, but alters the status of the criminal will so as to reveal that will for what it is, a violation of a victim’s rights. In short, punishment invalidates the criminal's will and (...) validates the victim's rights. I conclude that Hegel has offered a compelling reason to punish criminals and one that fits well a commitment to taking victim rights seriously. (shrink)
The paper’s central focus is the ‘duty’ theory of punishment developed by Victor Tadros in The Ends of Harm. In evaluating the ‘duty’ theory we might ask two broad closely related questions: whether in its own terms the ‘duty’ theory provides a justification of the imposition of hard treatment or suffering on an offender; and whether the ‘duty’ theory can provide a justification of punishment. This paper is principally concerned with the second question, which stems from a significant (...) difference between Tadros’s ‘duty view’ of punishment, as opposed to more familiar theories that seek to justify punishment as essentially the imposition of a penalty for (purported) wrongdoing. In addressing this question I highlight this particular difference as problematic for Tadros’s ‘duty’ theory. The issues concern Tadros’s conception of punishment and the central features of his ‘duty view’: the claim that punishment of some offenders can be justified as the (enforced) fulfilment of a duty of protection that they owe principally to those whom they have wrongfully harmed. (shrink)
Numerous studies indicate that racial minorities are both more likely to be executed for murder and that those who murder them are less likely to be executed than if they murder whites. Death penalty opponents have long attempted to use these studies to argue for a moratorium on capitalpunishment. Whatever the merits of such arguments, they overlook the fact that such discrimination alters the costs of murder; racial discrimination imposes higher costs on minorities for murdering through tougher (...) sentences, and it imposes lower costs on whites for murdering minorities by dispensing weaker sentences. These cost differentials constitute an injustice not simply to actual minority defendants in capital cases, nor simply to the actual minority victims of murder, but to all members of minority communities. I here offer two arguments for a moratorium on capitalpunishment: The first draws upon evidence of racial discrimination against minority defendants in capital cases, and claims that such discrimination modifies the costs of murder in such a way that minority individuals do not enjoy equal status under the law. The second draws upon the evidence regarding racial discrimination in relation to the race of victims, and claims that such discrimination modifies the costs of murder in such a way that minority individuals do not enjoy the equal protection of the law. Thus, by not assigning equal costs to murder, the American criminal justice system fails to provide racial minorities the equality under the law and discounts the value of their lives and liberties. A moratorium is the least unjust response to such a social injustice. I also reply to the criticism that a moratorium prevents us from executing deserving murderers. (shrink)
We argue that the dead donor rule, which states that multiple vital organs should only be taken from dead patients, is justified neither in principle nor in practice. We use a thought experiment and a guiding assumption in the literature about the justification of moral principles to undermine the theoretical justification for the rule. We then offer two real world analogues to this thought experiment, voluntary active euthanasia and capitalpunishment, and argue that the moral permissibility of terminating (...) any patient through the removal of vital organs cannot turn on whether or not the practice violates the dead donor rule.Next, we consider practical justifications for the dead donor rule. Specifically, we consider whether there are compelling reasons to promulgate the rule even though its corresponding moral principle is not theoretically justified. We argue that there are no such reasons. In fact, we argue that promulgating the rule may actually decrease public trust in organ procurement procedures and medical institutions generally – even in states that do not permit capitalpunishment or voluntary active euthanasia.Finally, we examine our case against the dead donor rule in the light of common arguments for it. We find that these arguments are often misplaced – they do not support the dead donor rule. Instead, they support the quite different rule that patients should not be killed for their vital organs. (shrink)
Many Christians are split on whether they believe we should endorse or oppose capitalpunishment. Each side claims Biblical support for their professed position. This essay cannot hope to bring this debate to a conclusion. However, it will try to offer a different perspective. The essay recognizes that the Bible itself offers statements in support of each position. The proposed way forward is not to claim there is a contradiction, but to place greater emphasis on understanding these statements (...) in their particular contexts, specifically with reference to their relation to Jesus’ New Covenant. Such a perspective should lead us to oppose capitalpunishment. (shrink)
This essay exposes how recent attempts at lethalinjection reform have involved unethical and illegal research on prisoners. States are varying the doses and types of drugs used, developing methods designed for non-medical professionals to administer medical procedures, and gathering data or making provisions for the gathering of data to learn from executions gone wrong. When individual prisoners are executed under these conditions, states are conducting research on them. Conducting research or experimentation on prisoners in the process of (...) reform is problematic because it violates ethical frameworks and state laws. The Supreme Court has recently taken up the challenge of elucidating the standard for determining the constitutionality of lethalinjection. If the Court suggests an approach to lethalinjection reform that is akin to some of the more thoughtful and cautious approaches other courts have proposed, the Court's decision may also contravene state laws or ethical precepts regarding research with prisoners. Thus, this paper provides important limitations on the kinds of reform that may be permissible and outlines the open questions that must be addressed before it can be determined whether the risks and uncertainties involved in lethalinjection can be remedied. (shrink)
What is the strongest argument grounded in African values, i.e., those salient among indigenous peoples below the Sahara desert, for abolishing capitalpunishment? I defend a particular answer to this question, one that invokes an under-theorized conception of human dignity. Roughly, I maintain that the death penalty is nearly always morally unjustified, and should therefore be abolished, because it degrades people’s special capacity for communal relationships. To defend this claim, I proceed by clarifying what I aim to achieve (...) in this essay, criticizing existing objections to the death penalty that ethicists, jurists and others have proffered on ‘African’ grounds, and, finally, advancing a new, dignity-based objection with a sub-Saharan pedigree that I take to be the most promising. (shrink)
Evidence that some executed prisoners suffered excruciating pain has reinvigorated the ethical debate about physician participation in executions. In widely publicized litigation, death row inmates argue that participation of anesthesiologists in their execution is constitutionally required to minimize the risk of unnecessary suffering. For many years, commentators supported the ethical ban on physician participation reflected in codes of professional medical organizations. However, a recent wave of scholarship concurs with inmate advocates, urging the law to require or permit physician participation. Both (...) the anti- and pro-physician-participation literature share a common premise: the ethics of physician participation should be analyzed independently from the moral status of capitalpunishment. This considerable literature implausibly divorces the ethics of physician participation from the moral status of the death penalty. Any ethical position on physician involvement requires some judgment about the moral status of capitalpunishment. The article examines anti- and pro-participation arguments to show that each one either is unpersuasive without discussion of the death penalty's moral status or implicitly assumes a view on the social worth of the death penalty. The article then articulates the practical implications of its arguments for both lawmakers and professional medical organizations. (shrink)
In the Metaphysics of Morals Kant clearly, and indeed ardently, upholds the state's right to impose the death penalty in accordance with the law of retribution (ius talionis). The “principle of equality” as between crime and punishment demands that those who wrongfully kill another should be put to death, for, in having inflicted such an evil upon another, the murderer has effectively killed himself. Kant is quite emphatic on this point: those who have committed murder “must die”. Here, he (...) argues, “there is no substitute that will satisfy justice”, for there “is no similarity between life, however wretched it may be, and death, hence no likeness between the crime and the retribution unless death is judicially carried out upon the wrongdoer […]”. The ius talionis is, for Kant, the basic principle and measure in accordance with which criminal justice functions. Since the ius talionis entails a strict equality between crime and punishment, Kant's insistence that only the death penalty serves as the appropriate response to murder (or to any other equally egregious crime) is fairly straightforward. (shrink)
We will consider alternative ways that Kant’s philosophical views on ethics generally and on punishment more particularly could be brought into harmony with the present near consensus of opposition to the death penalty. We will make use of the notion of the contemporary consensus about certain issues, particularly equality of the sexes and the death penalty, found in widespread agreement, though not unanimity. Of course, it is always possible that some consensuses are wrong, or misguided, or mistaken. We should (...) not put too much philosophical weight on the notion of a consensus here. If there is a consensus for the equality of women as citizens, and against the death penalty, this will simply suggest to us that we will want to reconsider Kant’s views on such topics. In both instances mentioned, his views lie outside the current consensus. We will consider how to revise Kant’s views to bring them into accord with these current consensuses, within a theory that is still, in as significant a sense as possible, Kantian. Since the use of the idea of a consensus is a sort of short-cut, there will not be much direct discussion of arguments for or against the equality of women as citizens, or for or against the advisability of using the death penalty. Yet the discussions of these issues will illuminate certain facts about the structure of Kant’s moral and political theories, and about how the basic principles within those theories relate to particular moral applications or topics. If we can still end up with a thoroughly Kantian view on the death penalty, that also will tell us something about the relation of Kantian ethical and legal principles to the death penalty as that issue is discussed today. Opposition to the death penalty in present day circumstances is not at variance with the basic principles of Kantian ethical, political, and legal theory, including his retributivism in the justification of punishment. Indeed, there is a way of revising Kant’s views to bring them into harmony with abolition. (shrink)
The United States Supreme Court recently ruled that execution by a commonly used protocol of drug administration does not represent cruel or unusual punishment. Various medical journals have editorialized on this drug protocol, the death penalty in general and the role that physicians play. Many physicians, and societies of physicians, express the opinion that it is unethical for doctors to participate in executions. This Target Article explores the harm that occurs to murder victims' relatives when an execution is delayed (...) or indefinitely postponed. By using established principles in psychiatry and the science of the brain, it is shown that victims' relatives can suffer brain damage when justice is not done. Conversely, adequate justice can reverse some of those changes in the brain. Thus, physician opposition to capitalpunishment may be contributing to significant harm. In this context, the ethics of physician involvement in lethalinjection is complex. (shrink)
The death penalty by lethalinjection is a legal punishment in the United States. Sodium Thiopental, once used in the death penalty cocktail, is no longer available for use in the United States as a consequence of this association. Anesthesiologists possess knowledge of Sodium Thiopental and possible chemical alternatives. Further, lethalinjection has the look and feel of a medical act thereby encouraging physician participation and comment. Concern has been raised that the death penalty by (...)lethalinjection, is cruel. Physicians are ethically directed to prevent cruelty within the doctor-patient relationship and ethically prohibited from participation in any component of the death penalty. The US Supreme Court ruled that the death penalty is not cruel per se and is not in conflict with the 8th amendment of the US constitution. If the death penalty is not cruel, it requires no further refinement. If, on the other hand, the death penalty is in fact cruel, physicians have no mandate outside of the doctor patient relationship to reduce cruelty. Any intervention in the name of cruelty reduction, in the setting of lethalinjection, does not lead to a more humane form of punishment. If physicians contend that the death penalty can be botched, they wrongly direct that it can be improved. The death penalty cocktail, as a method to reduce suffering during execution, is an unverifiable claim. At best, anesthetics produce an outward appearance of calmness only and do not address suffering as a consequence of the anticipation of death on the part of the condemned. (shrink)
“What if the death penalty were a drug?” This question opens the essay and is pursued through two very different kinds of texts. On the one hand, Derrida's 1999–2000 Death Penalty Seminar is brought to bear for its analysis of what is called there the “anesthesial logic” of capitalpunishment. This logic, Derrida argues, has determined both pro– and anti–death penalty discourses since at least the mid-eighteenth century. On the other hand, the essay gathers evidence of events that (...) led, in 2010, to the unavailability in the United States of sodium thiopental—the anesthetic component of the three-drug protocol of the lethalinjection—which forced many death penalty states to halt executions. Current events thus confirm the philosopher's analysis that anesthesia is indeed the lynchpin of the apparatus of state-sanctioned executions. But the analysis of this anesthesial logic also leads one to pose the further question of who is being anesthetized by this protocol and its discursive devices: the sentenced or the sentencers? (shrink)
This is a critical discussion of the Baldus study of capital sentencing in Georgia. It concludes that the Baldus finding of a "race-of-the-victim" effect is less robust than capital-punishment abolitionists have claimed. But the flaws in the Baldus study should not comfort death-penalty advocates, for they reveal an epistemological barrier to the US Supreme Court's ever being able to satisfy itself both that the sentence reflects particularized consideration of the circumstances and character of the defendant (mandated by (...) Woodson v North Carolina) and that it is not the product of racial bias (condemned in Furman v Georgia and Gregg v Georgia). (shrink)
This article defends the fair-play theory of legal punishment against three objections. The first, the irrelevance objection , is the long-standing complaint that fair play fails to capture what it is about crimes that makes criminals deserving of punishment; the others are the recently raised false-equivalence and lacks-integration objections. In response, I sketch an account of fair-play theory that is grounded in a conception of the political order as a meta- cooperative practice—a conception that falls somewhere between contractual (...) and communitarian conceptions—and draw on this account to show how the theory can overcome the objections. (shrink)
In The Right to Threaten and the Right to Punish, Warren Quinn justifies punishment on the ground that it can be derived from the rights of persons to protect themselves against crime. Quinn, however, denies that a right of self-protection justifies the punishment of an aggressor solely on the ground that such punishment deters others from harming the victim of that aggression or others. He believes that punishment so justified would constitute a morally objectionable instance of (...) using the punished individual as a means. Contrary to Quinn, I argue that (1) an individual can, on the very ground of a right to self-protection that Quinn ultimately relies upon to justify punishment, justify the punishment of an individual as a means of deterring others from committing crimes; and that (2) an individual or individuals (including state officials) can, on the ground of vindicating the right of protection that others possess, justify the punishment of an individual as a means of deterring others from committing crimes. (shrink)
The debate over whether ‘fair-play’ can serve as a justification for legal punishment has recently resumed with an exchange between Richard Dagger and Antony Duff. According to the fair-play theorist, criminals deserve punishment for breaking the law because in so doing the criminal upsets a fair distribution of benefits and burdens, and punishment rectifies this unfairness. Critics frequently level two charges against this idea. The first is that it often gives the wrong explanation of what makes crime (...) deserving of punishment, since the wrongfulness of murder is not primarily about unfairness. The second is that it implies that all crimes deserve the same degree of punishment, because all crimes create the same degree of unfairness. These objections are viewed as revealing fatal flaws in the theory. Although Dagger attempts to meet these objections by drawing on political theory, Duff responds that this still draws upon the wrong kind of resources for meeting these objections. This paper argues that these two objections rest on a crucial mistake that has been overlooked by both the defenders and critics of fair-play. This mistake results from failing to distinguish between what justifies punishment as a response to crime (which requires a common element to all crime) and what justifies attaching particular penalties to crimes (which requires making distinctions in the severity of crime). The arguments presented will give reasons to consider fair-play as a viable justification for legal punishment. (shrink)
In this essay, I apply international human rights theory to the domestic discussion of criminalization. The essay takes as its starting point the “right not to be punished” that Douglas Husak posited in his recent book Overcriminalization . By reviewing international human rights norms, I take up Husak’s challenge to imbue this right with further normative content. This process reveals additional relationships between the criminal law and human rights theory, and I discuss one analogy: the derogation by states of an (...) individual’s human rights under specified conditions has certain similarities to the punishment by states of an individual who holds a right not to be punished. Along the way, I highlight the normative implications of defining a human right not to be punished under both generalist and specificationist perspectives on moral rights. Noting the similarities as well as the differences in the concepts of punishment and derogation, this essay aims to contribute to the exchange between theories of human rights and the criminal law. (shrink)
Richard Dagger (in this issue) provides perhaps the most persuasive version of a ‘fair play’ theory of criminal punishment, grounded in an attractive liberal republican political theory. But, I argue, his version of the theory still faces serious objections: that its explanation of why some central mala in se are properly criminalised is still distorting, despite his appeal to the burdens of ‘general compliance’; and that it cannot adequately explain (as it should explain) the differential seriousness and wrongfulness of (...) different kinds of crime. (shrink)
The Eighth Amendment of the United States Constitution dictates that “Excessive bail shall not be required, excessive fines imposed, nor cruel and unusual punishments inflicted.”[i] I have often wondered, and perhaps the reader has as well: just what purpose is served by the addition of the word “unusual” to the constitutional clause prohibiting cruel punishments? When a legislature enacts or a judge levies a punishment that is much harsher than what the norm is for such an offense, this unusual (...)punishment is often taken to be unconstitutional. But while it is certainly unusual to bestow a life sentence without parole upon a petty thief, is not this excessive punishment cruel and thus wouldn’t a ban of just cruel punishments suffice? If “cruel” in a constitutional sense means something like “unjustifiably harsh,” why would a punishment need to have any other property to be unconstitutional? Of course, there are punishments that are unjust but not cruel. One such case would occur when a judge gives a guilty friend an unusually light sentence. But the word “unusual” could not have been added to render such lenient sentences unconstitutional for the crucial phrase of the Eighth Amendment is a conjunction and not a disjunction. It does not prohibit cruel or unusual punishments but cruel and unusual punishments. (shrink)
Shannon Shipp argues for the Modified Vendetta Sanction as a method of corporate-collective punishment. He claims that this sanction evades the difficulties of Peter French's Hester Prynne Sanction. In this paper I argue that, though the Modified Vendetta Sanction evades the problems that Shipp poses for it, it fails to evade some of the difficulties that I pose for French's method. Moreover, there are some difficulties that plague the Modified Vendetta Sanction which do not count against the Hester Prynne (...) Sanction. Therefore, if my analysis holds, then Shipp's method neither improves significantly on the Hester Prynne Sanction nor is unproblematic in its own right. The significance of this paper is that it foils yet another attempt by some corporate punishment theorists to establish the plausibility of a method of corporate-collective punishment. (shrink)
There is a need of further research to understand how social capital in the organization can be fostered. Existing literature focuses on the design of reciprocity norms, procedures and stability employment practices as the main levers of social capital in the workplace. Complementary to these mechanisms, this paper explores the impact of ethical managerial behaviour on the development of social capital. We argue that a managerial behaviour based on the true concern for the well-being of employees, as (...) well as their motivational and ethical development, can be particularly important for the generation of social capital in the organization. It is suggested that manager's behaviour should be based on three principles: following examplary behaviour, helping the employees to value the consequences of their actions in other persons, and not betraying employee's trust. When the manager conforms to those principles, he can ease the process through which employees develop associability and identification-based trust with the firm, the two main components of 'Organizational Social Capital'. Bringing ethics into the debate of social capital creation seems to us fundamental, as social capital in the firm is likely to be influenced by the ethical and motivational development of its members. (shrink)
Evidence from the Apology, Crito, Protagoras, and Gorgias is mustered in defense of the claim that for Socrates, dialectic typifies just punishment: Dialectic benefits the punished by making her more just, since it disabuses her of the false beliefs that stand in the way of her acquiring knowledge of justice. Though painful and disorienting to the interlocutor, having one’s opinions refuted by Socrates—who is wiser than his interlocutors due to his awareness of the vastness of his ignorance—is in fact (...) a benefit. Socrates’ attitude toward his own pending death sentence, his claim that the virtues are unified around wisdom, and his opposition to vengeance or retaliation as a moral motive, all underscore how dialectical engagement is a paradigm instance of just Socratic punishment. (shrink)
This paper focuses on the role of punishment as a critical social mechanism for cheating prevention in MMORPGs. The role of punishment is empirically investigated in a case study of the MMORPG Tibia (Cipsoft 1997–2011 ) ( http://www.tibia.com ) and by focusing on the use of bots to cheat. We describe the failure of punishment in Tibia, which is perceived by players as one of the elements facilitating the proliferation of bots. In this process some players act (...) as a moral enterprising group contributing to the reform of the game rules and in particular to the reform of the Tibia punishment system by the game company. In the conclusion we consider the ethical issues raised by our findings and we propose some general reflections on the role of punishment and social mechanisms for the governance of online worlds more generally. (shrink)
This book considers the problem of law's physical control of persons and it illuminates competing visions of the law: as both a tool of regulation and as an ...
In this article I spell out a conception of dignity grounded in African moral thinking that provides a plausible philosophical foundation for human rights, focusing on the particular human right not to be executed by the state. I first demonstrate that the South African Constitutional Court’s sub-Saharan explanations of why the death penalty is degrading all counterintuitively entail that using deadly force against aggressors is degrading as well. Then, I draw on one major strand of Afro-communitarian thought to develop a (...) novel conception of dignity as the view that what is special and inviolable about human nature is our capacity for harmonious relationships. I argue that a principle of respect for the dignity of such a capacity entails that the death penalty is an indignity but that deadly force in self- or other-defense need not be, and I contend that this African- inspired principle promises to do no worse than the more Western, Kantian principle of respect for autonomy at accounting for a broad range of human rights. (shrink)
It a mistake to think that opponents of the death penalty are invariably sentimentalists, motivated by tenderness to those convicted of deliberate murder. They might, quite rightly, often be motivated by compassion for others branded as criminals, who in more rational, more just, or kinder dispensations would not be criminals at all – for example, soliciting prostitutes and drug addicts. They might also understand, although (a different thing) neither condone nor forgive, murder committed in the unmeditated grip of passion. Such (...) attitudes are prompted by sympathy for the difficulties that can divert a life into making a hell for itself and others – or just for the frailties of the human spirit, so numerous and sometimes so final that they seem to be its destiny. (shrink)
In this essay I develop and defend a theory of state punishment within a wider conception of political legitimacy. While many moral theories of punishment focus on what is deserved by criminals, I theorize punishment within the specific context of the state’s relationship to its citizens. Central to my account is Rawls’s “liberal principle of legitimacy,” which requires that all state coercion be justifiable to all citizens. I extend this idea to the justification of political coercion to (...) criminals qua citizens. I argue that the liberal principle of legitimacy implicitly requires states to respect the basic political rights of those who are guilty of committing crimes, thus prohibiting capitalpunishment. (shrink)
What should be a police department's policies and regulations on the use of deadly force? What is the relevance for this of the state law on capitalpunishment?
It is possible to defend the death penalty for aggravated murder in more than one way, and not every defence is equally compelling. The paper takes up arguments put forward by two very distinguished advocates of the death penalty, Mill and Kant. After reviewing Mill's argument and some weaknesses in it, I shall sketch another line of reasoning that combines his conclusion with premisses to be found in Kant. The hybrid argument provides at least the basis for a sound defence (...) of execution for the most serious murders. (shrink)
This is a critical review of Death Penalties by constitutional scholar Raoul Berger. It rebuts Berger's argument that the Eighth Amendment "no cruel and unusual punishments" clause validates capitalpunishment.
In my 'A Deterrence Theory of Punishment', I argued that a deterrence system of punishment can avoid the charge that it illegitimately uses offenders if its punishments are carried out 'quasiautomatically': threats are issued by a legislature for deterrent purposes, but those who carry out the punishments have no authority to take deterrent considerations into account. Sprague has objected that under such a system, those who carry out punishments will be unable to justify their actions. I reply that (...) if it is justifiable to set up the system in this way in the first place, then this justification will transmit to all actions carried out under it; and that it is justifiable to set up an institution of punishment in this way. (shrink)
In my 'A Deterrence Theory of Punishment', I argued that a deterrence system of punishment can avoid the charge that it illegitimately uses offenders if its punishments are carried out 'quasiautomatically': threats are issued by a legislature for deterrent purposes, but those who carry out the punishments have no authority to take deterrent considerations into account. Sprague has objected that under such a system, those who carry out punishments will be unable to justify their actions. I reply that (...) if it is justifiable to set up the system in this way in the first place, then this justification will transmit to all actions carried out under it; and that it is justifiable to set up an institution of punishment in this way. (shrink)
Retributivism is generally thought to forbid the punishment of the innocent, even if such punishment would produce otherwise good results, such as deterrence. It has recently been argued that because capitalpunishment always entails the risk of executing an innocent person, instituting capitalpunishment is tantamount to intentionally taking innocent lives and therefore cannot be justified on retributive grounds. I argue that there are several versions of retributivism, only one of which might categorically forbid (...) risking punishing innocent persons. I also argue that our moral practices reveal either that we do not hold this particular version of retributivism, or that we reject equating risking punishing the innocent with intentionally doing so. *** DIRECT SUPPORT *** A9102008 00005. (shrink)
What is the point of teaching about abortion, euthanasia, and capitalpunishment, if the students are cheating in the course? As much as eighty per cent of our students cheat. Cheating is the norm. Furthermore, ethics courses are not immune. I decided, therefore, to seize the bull by the horns and challenge my ethics students not to cheat. I employed a form of so-called contract grading, which placed the burden of honesty on the students instead of the usual (...) cat-and-mouse of teacher enforcement. Herein I report on the results of this ten-year experiment. (shrink)
Natural law as fact, theory, and sign of contradiction -- The second tablet project -- The mystery of what? -- The natural, the connatural, and the unnatural -- Accept no imitations: natural law vs. naturalism -- Thou shalt not kill . . . whom? the meaning of the person -- Capitalpunishment: the case for justice -- Constitution vs. constitutionalism -- Constitutional metaphysics -- The liberal, illiberal religion.
