The aim of this article is to set out a theory for treatment of criminals that rejects retributive justification for punishment; does not fall afoul of a plausible prohibition on using people merely as means; and actually works in the real world. The theory can be motivated by free will skepticism. But it can also be supported without reference to the free will issue, since retributivism faces ethical challenges in its own right. In past versions of the account I’ve emphasized (...) the quarantine analogy for incapacitation together with the value of rehabilitation and reintegration. Here I pay special attention to the permissibility and the limits of general deterrence. (shrink)

Some philosophers believe that punishing convicted criminals in order to deter other, potential criminals would be morally questionable even if we had good evidence that doing so would achieve its goal, at least to a substantial degree. And they believe this because they believe that doing so would be an instance of “using” convicted criminals in a morally objectionable way. Tadros aims to show that we would indeed be “using” convicted criminals in such cases but that, while “using” others is (...) ordinarily morally wrong, there are cases in which it is in fact morally permissible . Moreover, he claims that punishing convicted criminals in order to deter other, potential criminals is an instance of “using” others that is sometimes clearly morally justifiable. My aim is to show how extraordinarily interesting some of Tadros’ arguments are but also why, in my view, they fail to establish the view he claims they support. I also suggest some ways in which Tadros might revise his arguments to support his central claim more effectively. (shrink)

Measures aimed at general deterrence are often thought to be problematic on the basis that they violate the Kantian prohibition against sacrificing the interests of some as a means of securing a greater good. But even if this looks like a weak objection because deterrence can be justified as a form of societal self-defence, such measures may be regarded as problematic for another reason: Harming in self-defence is only justified when it’s necessary, i.e., when there are no (...) relatively harmless alternatives. While there are few harmless ways to remove the threat posed by dangerous individuals, there are many relatively harmless methods for preventing crime. We can bracket off our preventative failings when we think of present threats, but we cannot do so when contemplating alternative preventative measures. (shrink)

Nuclear deterrence has recently come under attack from many quarters. And philosophers, no less than others, have participated in the attack. The philosophical attacks have come both from consequentialists and deontologists. Deterrence has also, of course, found its defenders, but the latter have tended to be consequentialist or contractarian. I have not yet seen what I take to be a wholly adequate deontological defense of nuclear deterrence. In this essay, I attempt to make such a defense.

It is widely held that the proper role of criminal punishment is to ensure in a cost-efficient manner that criminal laws will be obeyed. As James Buchanan puts it,the reason we have courts is not that we want people to be convicted of crimes but that we want people not to commit them. The whole procedure of the law is one, essentially, of threatening people with unpleasant consequences if they do things which are regarded as objectionable.According to the deterrence (...) theory of punishment, which I will here accept without argument in order to tease out some of its implications, legislators must be aware of opportunities to maximize the threat value of criminal prohibitions. By maximizing deterrence, we minimize the cost of crime. On the other hand, creating these threats, and carrying them out, is also costly. So we also wish to minimize the cost of avoiding crime. An efficient deterrent, therefore, will be one which minimizes the sum of the costs of crime and crime avoidance, where ‘cost’ is to be broadly construed. (shrink)

In Wrongs and Crimes, Victor Tadros argues that wrongdoers acquire special duties to those they’ve wronged, and from there he generates wrongdoers’ duties to contribute to general deterrence by being punished. In support, he contends that my manipulation argument against compatibilism fails to show that causal determination is incompatible with the proposed duties wrongdoers owe to those they’ve wronged. I respond that I did not intend my manipulation argument to rule out a sense of moral responsibility that features (...) such duties, and that I don’t believe it does. In fact, I’m willing to accept a restricted version of Tadros’s proposal, and I explain how this addition modifies the self-defense-based position on deterrence that I’ve defended in the past. (shrink)

IntroductionIssues in public policy have been challenging and remaking moral theory for two centuries. Such issues force us to question fundamental principles of ethics while they cast doubt on our ability to generalize from traditional intuitions. No issue poses more remarkable difficulties for moral theory than nuclear weapons policy. Because the consequences of their deployment and therefore possible use could be grievous beyond those of any previously conceivable human action, these weapons frame the conflict between outcome-based, especially utilitarian, and action-based (...) deontological moral theories more acutely than perhaps any other we have faced. Just because nuclear weapons may bring about the most grievous outcome imaginable, they elevate concern with outcomes over concern with actions. More generally, they wreak havoc with the focus on the morality of individual choices and actions, set limits to the notion of intention and the doctrine of double effect, call into question the so-called just-war theory, and overwhelm the intuitionist basis of much of ethical reasoning. (shrink)

The best of twentieth century philosophy questions the basic assumptions of modernity. These works reject the classical enterprise of epistemology by undermining the twin notions of foundationalism and essentialism, as well as the perceptual metaphors for the mind upon which they have rested. In addition, they expose the supposedly value-neutral, ahistorical methods of philosophy, including conceptual analysis. The demise of the analytic/synthetic distinction, the rejection of the appeal to the given, the failure of reference theories of meaning, and the incoherence (...) of correspondence theories of truth that go beyond Tarskian minimalism made the undermining of epistemology inevitable. Increasingly, there is the recognition that historicist claims about human knowledge and inquiry are simply unassailable and that justification is a holistic, social phenomena. (shrink)

Nuclear deterrence is paradoxical. One paradox of nuclear deterrence we may call the rationality paradox: While it is a rational policy to threaten nuclear retaliation against an opponent armed with nuclear weapons, it would not be rational to carry out the retaliation should the threat fail to deter; and what would not be rational to do is not, in the circumstances characteristic of nuclear deterrence, rational to threaten to do. This is a paradox in the standard sense (...) that it involves contradictory claims, for it implies that adopting a policy of nuclear deterrence is both rational and not rational, yet we have strong reason to believe that each of the claims is true. Claim is a recognition that, though we believe nuclear deterrence works, there would seem to be no reason to carry out the threat if it were to fail. Claim is part of the logic of all forms of deterrence, military and nonmilitary, and it relates to the important notion of credibility: if an opponent knows that one has no reason to carry out a threat, the threat would not be credible and so one would have no reason to make it. Further, it is characteristic of a state of nuclear deterrence that the opponent would recognize that one would have no reason to carry out the threat. The rationality paradox is but one of the paradoxes raised by nuclear deterrence. Some other of the paradoxes of nuclear deterrence have the same form as the rationality paradox: for a certain set of predicates x, the act of threatening nuclear retaliation is x, while the act of carrying out the threat would be not-x; and if it is not-x to perform some action, then, in the circumstances generally characteristic of a situation of nuclear deterrence, it is not-x to threaten to perform that action. (shrink)

This essay investigates the change in the Catholic attitude toward nuclear weapons as articulated by Pope Francis. Francis has generally followed the position of his immediate predecessors with regard to the Catholic teaching on just war. While the resort to armed force remains a morally justifiable option if the principles of just war have been met, the pope forcefully emphasises the tools of nonviolent peacebuilding. Recently, however, Francis made an original just war argument when he broke with the Church’s established (...) position on nuclear weapons. The pope declared both the use and possession of nuclear weapons “immoral” and, thus, abandoned the Church’s reluctant acceptance of nuclear deterrence that had survived the end of the Cold War. In this essay, I analyse the rationale behind Francis’s decision to break with nuclear deterrence, which is mainly grounded in the disillusionment about the failed promise of nuclear disarmament. Furthermore, I assess the impact of the new position with regard to Catholic soldiers serving in nuclear armed militaries. (shrink)

The argument in this paper is that although rationality and morality are distinguishable concepts, there is nevertheless a rational morality, a set of principles, namely, which it is rational of all to require of all. The argument of this paper is that such a morality would certainly issue in a general condemnation of aggressive war. (Whether this also makes it irrational for States to engage in such activities is another, and not entirely settled, matter). Correlatively, it would issue in (...) a strong right of defense. Would this right be sufficient to include resort to nuclear deterrence, if need be? It is argued that the answer must be in the affirmative - although the question of ‘need’ is by no means settled in current circumstances. (shrink)

Over the last decade, theorists have persistently criticised the assumption that the International Criminal Court (ICC) can produce a noteworthy deterrent effect. Consequently, consensus has emerged that we should probably look for different ways to justify the ICC or else abandon the prestigious project entirely. In this paper, I argue that these claims are ill founded and rest primarily on misunderstandings as to the idea of deterrence through punishment. They tend to overstate both the epistemic certainty as to and (...) the size of the deterrent effect necessary in order to thus justify punishment. I argue that we should in general expect reasonably humane punitive institutions to lead to better consequences than if we abolish punishment entirely, and I show that, contrary to widespread assumption among critics of the ICC, we should not expect the conditions characteristically surrounding mass atrocity to undermine this presumption. Properly understood, the ICC equals adding another “slice of cheese” to our comprehensive crime preventive system modelled along the lines of James Reason’s Swiss cheese model of accident causation and risk management. Undoubtedly, some future perpetrators will elope through the holes in this layer too, but others will be deterred. (shrink)

Anthony Ellis attempts to offer a deterrence theory of punishment that overcomes a number of common criticisms of deterrence theories in general. While his discussion does suggest many interesting responses that proponents of deterrence theories might use, the theory he defends is problematic for several reasons.

The entry into force of the Rome Statute on 1 July 2002 establishing the International Criminal Court has signified a shift in the goals pursued by international criminal law. Due to new types of warfare dynamics, international protection is in need of new orientations, particularly with regard to conflict deterrence aims. This urgency is widely documented by the normative action framework of the Responsibility to Protect and, more recently, by the UN Secretary-General 2012–2013 Reports for the RtoP’s implementation. (...) The scope of this study is twofold. On the one hand, it aims to explore theoretical overlapping between the jus post bellum and the RtoP with regard to deterrence effects of the ICC; on the other hand, it proposes to illustrate such dynamics by reference to Kenya’s post-electoral violence during the period 2007–2013. Kenya represents an instance of a post-conflict society whereby transitional justice actions have taken place under a de facto adoption of a RtoP framework. As a result, I defend a qualified correlation between ICC’s retribution and deterrence effects. I claim that the hypothesis of the ICC’s deterring effects accounts in Kenya is constructed upon a general condition of direct compliance by self-interested rational actors as well as on unintended effects of ethnic stabilization. I further consider that this possibility is reinforced by systemic interdependencies with other national and international initiatives such as the Kenyan National Dialogue and Reconciliation mediation initiative, the Grand Coalition Government, the Panel of African Eminent Personalities led by Kofi Annan, and the findings of the Commission of Enquiry of Post-Election Violence. (shrink)

This paper develops an incomplete information model of extended deterrence relationships. It postulates players who are fully informed about the costs of war and all other relevant variables, save for the values their opponents place on the issues at stake, i.e., the pawn. We provide consistent and intuitively satisfying parallel definitions for two types of players, Hard and Soft, in terms of the parameters of our model. We also answer several particular questions about the strategy choices of players in (...) an extended deterrence relationship and, by identifying all the Perfect Bayesian Equilibria of the game model we construct, specify typical behavior patterns.Our most general finding is that an Extended Deterrence Game always has a unique Perfect Bayesian Equilibrium with a rather simple form. A challenger initiates for certain if the pawn is valuable enough to it and never challenges otherwise, Likewise, a defender always resists if the pawn is valuable enough and never resists otherwise. (shrink)

Over the last decade, theorists have persistently criticised the assumption that the International Criminal Court (ICC) can produce a noteworthy deterrent effect. Consequently, consensus has emerged that we should probably look for different ways to justify the ICC or else abandon the prestigious project entirely. In this paper, I argue that these claims are ill founded and rest primarily on misunderstandings as to the idea of deterrence through punishment. They tend to overstate both the epistemic certainty as to and (...) the size of the deterrent effect necessary in order to thus justify punishment. I argue that we should in general expect reasonably humane punitive institutions to lead to better consequences than if we abolish punishment entirely, and I show that, contrary to widespread assumption among critics of the ICC, we should not expect the conditions characteristically surrounding mass atrocity to undermine this presumption. Properly understood, the ICC equals adding another “slice of cheese” to our comprehensive crime preventive system modelled along the lines of James Reason’s Swiss cheese model of accident causation and risk management. Undoubtedly, some future perpetrators will elope through the holes in this layer too, but others will be deterred. (shrink)

Although the Refugee Convention 1951 generally provided that contracting states should recognise those who came within its definition as refugees, it did not prescribe how contracting states should determine this in order to enable them to balance this obligation with their national interests. However, evidence from the background and drafting of the Refugee Convention 1951 suggests that the provisions that a contracting states would implement in order to protect its interests would be commensurate with the human rights spirit of the (...) treaty. This implied that contracting states would act fairly in balancing the competing interests in devising status determination policies and would take into account decent considerations. But, from a theoretical viewpoint, it is arguable that some recent asylum determination policies have been based on the threats posed by asylum seekers. Asylum seekers have come to be blamed for contributing to the national issues that some contracting states face and as such, some contracting states have adopted draconian measures as a result. (shrink)

First published in 1929, this book explores the crucial, ethical question of the objects and the justification of punishment. Dr. A. C. Ewing considers both the retributive theory and the deterrent theory on the subject whilst remaining commendably unprejudiced. The book examines the views which emphasize the reformation of the offender and the education of the community as objects of punishment. It also deals with a theory of reward as a compliment to a theory of punishment. Dr. Ewing’s treatment of (...) the topics is philosophical yet he takes in to account the practical considerations that should determine the nature and the amount of the punishment to be inflicted in different types of cases. This book will be of great interest to students of philosophy, teachers and those who are interested in the concrete problems of punishment by the state. It is an original contribution to the study of a subject of great theoretical and practical importance. (shrink)

RÉSUMÉ Ce texte porte sur l'élaboration des politiques publiques à partir d'une perspective conséquentialiste basée sur les probabilités. En utilisant l'exemple de la dissuasion par la menace nucléaire, je montre que ceux qui sont véritablement dévoués à la protection de l'environnement, ceux qui se soucient véritablement du problème de l'environnement devraient refuser le conséquentialisme basé sur les probabilités sans le principe de la reconsideration, un principe que nous proposons ici pour la première fois, le principe de la reconsideration doit être (...) adopté parce que, sans lui, le conséquentialisme basé sur les probabilités pourrait justifier qu'on poursuive l'application de politiques même lorsque celles-ci se sont révélées inadéquates, et même lorsqu'elles minent elles-mêmes leurs chances de succès. On peut ainsi conclure que le principe de la reconsidération est nécessaire pour assurer le lien entre les politiques justificatrices et leur succès. ABSTRACT This paper examines the making of public policy from a probability-based consequentialist perspective. Using nuclear deterrence policies as an example, I show that those truly committed environmental protection, those who truly care about the environment should not accept probability-based consequentialism without the reconsideration principle, a principle introduced in this paper. The reconsideration principle must be accepted, because without it, probability-based consequentialism can justify continuing to act on policies even when they have failed, and even when they undermine their original goal altogether. Thus, we conclude that the reconsideration principle is neeaed to insure connection between the justification policies and their success. (shrink)

In this chapter, I consider contemporary consequentialist theories of punishment. Consequentialist theories of punishment look to the consequences of punishment to justify the institution of punishment. Two types of theories fall into this category—teleology and aggregationism. I argue that teleology is implausible as it is based on a problematic assumption about the fundamental value of criminal punishment, and that aggregationism provides a more reasonable alternative. Aggregationism holds that punishment is morally justified because it is an institution that helps society to (...) aggregate important moral values. Several theories fall into this category, including general deterrence theories, specific deterrence theories, and preventionism. I critically evaluate these theories and argue that only one specific deterrence theory, namely, my rights-protection theory, provides the most reasonable consequentialist account of punishment. (shrink)

This paper tries to explain against the backdrop of the history of German criminal theory why and in which way the fault elements are seen differently in Germany and in Anglo-American countries. It shows how Feuerbach’s psychological model of guilt convinced Feuerbach’s German contemporaries in the 19th century that the suppression of the actual will to violate a criminal prohibition must be the reason for punishment. For such deterrence theory, direct intention is the central criterion of imputation. There is (...) no room for extensions like indirect intention. The resulting gap was filled by representatives of the will theory who created dolus eventualis as a criterion of imputation. The paper then concentrates on the gradual change which dolus eventualis has undergone due to the development of a ‘normative’ concept of guilt, i.e. a perception of guilt as a failure to live up to certain expected standards. It is outlined how the normative concept of guilt has facilitated Welzel’s decision to transplant dolus from the guilt level to the level of definitional elements. Transferring dolus to the definitional level led to a further change from a primarily voluntative to a cognitive content of the notion. It became appropriate to view dolus eventualis as acceptance of the prohibited state of affairs. For reasons of clarification the terms dolus eventualis and recklessness are compared in an annex to the paper. (shrink)

Le général André Bach dans une réflexion sur l’« horizon de mort dans la violence de guerre » part d’une approche anthropologique du phénomène de violence et de la peur (quasiment biologique) qu’il engendre en soulignant les difficultés des sociétés occidentales à penser la mort. C’est l’État qui donne à la guerre un sens politique et sacré et qui crée les catégories fonctionnelles de la guerre (les concepts de paix et de guerre ne sont pas en eux-mêmes opérationnels). Dans le (...) cadre d’une réflexion clausewitzienne sur la montée aux extrêmes, l’« extrême » pour le soldat est toujours sa propre mort (plus que celle de l’ennemi). Les notions de barbarisation et humanisation ne peuvent en ce sens rendre compte de la violence et de la peur radicales présentes dans toute guerre où le rôle du commandement est toujours de mettre en œuvre un degré de violence supérieur à celui de l’adversaire, sans aucune considération de « proportionnalité » de cette violence. La mise à distance technique ne diminue pas la violence mais l’augmente à proportion de l’éloignement de la peur. Seul le politique peut et doit mettre des limites à cette violence militaire par nature illimitée. La modernisation des armes ne relève jamais d’une humanisation du combat mais d’une recherche d’une violence plus efficace. L’entraînement du soldat en temps de paix n’est jamais entraînement à la violence mais apprentissage de savoir-faire et effort de constitution d’un groupe soudé, doté d’un bon moral. L’ordre et la formation tentent de limiter la sauvagerie mais il existe une constitution endogène de comportements propres au soldat, que la hiérarchie tente de canaliser dans une symbolique guerrière fondée sur le sentiment de l’honneur (destiné à compenser la peur d’être une proie vouée à mourir et à faire préférer la lutte au coude à coude sur l’instinct de conservation). Le couple violence/honneur fait que l’armée dépourvue de contrat social n’est pas soluble dans le politique (aujourd’hui dans les écoles militaires on ne parle plus d’« honneur » mais d’« éthique »…, mais pour dire la même chose). La conscription fut une rupture de la logique endogène de l’armée et introduisit une brèche dans ce système archaïque. Mais religion (au Moyen Âge) ou logique démocratique (de nos jours) s’avèrent surtout des « béquilles idéologiques » qui, en définitive, sont souvent plus efficaces pour accroître la barbarisation que pour l’éviter (exemple de la colonisation algérienne où une armée de paix, fonctionnarisée et rigoureusement canalisée, appartenant à une génération n’ayant jamais connu de violence de guerre, développe des massacres de masse). (shrink)