Punishment in Criminal Law

Edited by Gustavo Beade (Universidad de Buenos Aires (UBA), Christian-Albrechts-Universität zu Kiel)
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  1. added 2019-01-20
    The New Philosophy of Criminal Law.Chad Flanders & Zachary Hoskins (eds.) - 2015 - London, UK: Rowman & Littlefield International.
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  2. added 2019-01-04
    Responsible Brains: Neuroscience, Law, and Human Culpability.William Hirstein, Katrina L. Sifferd & Tyler Fagan - 2018 - New York, NY, USA: MIT Press.
    [This download includes the table of contents and chapter 1.] -/- When we praise, blame, punish, or reward people for their actions, we are holding them responsible for what they have done. Common sense tells us that what makes human beings responsible has to do with their minds and, in particular, the relationship between their minds and their actions. Yet the empirical connection is not necessarily obvious. The “guilty mind” is a core concept of criminal law, but if a defendant (...)
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  3. added 2018-12-20
    Response to Adam Kolber’s "Punishment and Moral Risk".Chelsea Rosenthal - 2018 - University of Illinois Law Review Online 2018 (2):175-183.
    Adam Kolber argues against retributivist theories of punishment, based on considerations of moral uncertainty. In this reply, I suggest that Kolber’s argument will not have the implications he supposes, in part because, if it’s able to raise difficulties for retributivism, similar problems will arise for a wide variety of other approaches to punishment.
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  4. added 2018-12-10
    The Promise of Corporate Character Theory. [REVIEW]Matthew Caulfield & William S. Laufer - 2018 - Iowa Law Review Online 103:101-122.
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  5. added 2018-12-04
    Punishment, Judges and Jesters: A Reply to Nathan Hanna.Bill Wringe - forthcoming - Ethical Theory and Moral Practice.
    Nathan Hanna has recently addressed a claim central to my 2013 article ‘Must Punishment Be Intended to Cause Suffering’ and to the second chapter of my 2016 book An Expressive Theory of Punishment: namely, that punishment need not involve an intention to cause suffering. -/- Hanna defends what he calls the ‘Aim To Harm Requirement’ (AHR), which he formulates as follows. AHR: ‘an agent punishes a subject only if the agent intends to harm the subject’ (Hanna 2017 p969). I’ll try (...)
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  6. added 2018-12-03
    Punishment and Democratic Rights: A Case Study in Non-Ideal Penal Theory.Steve Swartzer - 2018 - In Molly Gardner & Michael Weber (eds.), The Ethics of Policing and Imprisonment. pp. 7-37.
    In the United States, convicted offenders frequently lose the right to vote, at least temporarily. Drawing on the common observation that citizens of color lose democratic rights at disproportionately high rates, this chapter argues that this punishment is problematic in non-ideal societies because of the way in which it diminishes the political power of marginalized groups and threatens to reproduce patterns of domination and subordination, when they occur. This chapter then uses the case of penal disenfranchisement to illustrate how idealized (...)
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  7. added 2018-11-11
    Informants, Police, and Unconscionability.Luke William Hunt - 2018 - Institute of Art and Ideas (IAI Online Magazine).
    Essay exploring the extent to which certain agreements between the police and informants are an affront (both procedurally and substantively) to basic tenets of the liberal tradition in legal and political philosophy.
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  8. added 2018-10-23
    The Irrelevance of Responsibility: RODERICK T. LONG.Roderick T. Long - 1999 - Social Philosophy and Policy 16 (2):118-145.
    Responsibility is often thought of as primarily a legal concept. Even when it is moral responsibility that is at issue, it is assumed that it is above all in moralities based on law-centered patterns and models that responsibility takes center stage, so that responsibility is a legal concept at its core, and is applicable to the realm of private morality only by extension and analogy.
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  9. added 2018-10-10
    Grounding Procedural Rights.N. P. Adams - forthcoming - Legal Theory.
    Contrary to the widely accepted consensus, Christopher Heath Wellman argues that there are no pre-institutional judicial procedural rights. Thus commonly affirmed rights like the right to a fair trial cannot be assumed in the literature on punishment and legal philosophy as they usually are. Wellman canvasses and rejects a variety of grounds proposed for such rights. I answer his skepticism by proposing two novel grounds for procedural rights. First, a general right against unreasonable risk of punishment grounds rights to an (...)
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  10. added 2018-09-30
    Clockwork Corporations: A Character Theory of Corporate Punishment.Mihailis Diamantis - 2017 - Iowa Law Review 103:507.
    Retribution and deterrence currently drive the politics and scholarship of corporate criminal law. Since the potential harms and private gains of corporate crime are so large, corporate punishment under these theories must be exacting...too exacting. In fact, it is difficult under current law to punish many corporations formally without killing them. Ironically, this fact leads to the under-punishment of corporations. Prosecutors — understandably hesitant to shutter some of the country’s largest economic engines — increasingly offer corporations deferred prosecution agreements in (...)
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  11. added 2018-09-22
    Punishing with Care: Treating Offenders as Equal Persons in Criminal Punishment.Helen Brown Coverdale - 2013 - Dissertation, The London School of Economics and Political Science
    Most punishment theories acknowledge neither the full extent of the harms which punishment risks, nor the caring practices which punishment entails. Consequently, I shall argue, punishment in most of its current conceptualizations is inconsistent with treating offenders as equals qua persons. The nature of criminal punishment, and of our interactions with offenders in punishment decision-making and delivery, risks causing harm to offenders. Harm is normalized when central to definitions of punishment, desensitizing us to unintended harms and obscuring caring practices. Offenders (...)
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  12. added 2018-09-17
    ‘Drugs That Make You Feel Bad’? Remorse-Based Mitigation and Neurointerventions.Jonathan Pugh & Hannah Maslen - 2017 - Criminal Law and Philosophy 11 (3):499-522.
    In many jurisdictions, an offender’s remorse is considered to be a relevant factor to take into account in mitigation at sentencing. The growing philosophical interest in the use of neurointerventions in criminal justice raises an important question about such remorse-based mitigation: to what extent should technologically facilitated remorse be honoured such that it is permitted the same penal significance as standard instances of remorse? To motivate this question, we begin by sketching a tripartite account of remorse that distinguishes cognitive, affective (...)
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  13. added 2018-09-07
    Pinkerton Short-Circuits the Model Penal Code.Andrew Ingram - forthcoming - Villanova Law Review.
    I show that the Pinkerton rule in conspiracy law is doctrinally and morally flawed. Unlike past critics of the rule, I propose a statutory fix that preserves and reforms it rather than abolishing it entirely. As I will show, this accommodates authors like Neil Katyal who have defended the rule as an important crime fighting tool while also fixing most of the traditional problems with it identified by critics like Wayne LaFave. Pinkerton is a vicarious liability rule that makes conspirators (...)
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  14. added 2018-09-03
    Review: Thom Brooks: Hegel's Political Philosophy: A Systematic Reading of the Philosophy of Right. [REVIEW]Mark Tunick - 2009 - Mind 118 (470):449-453.
    Thom Brooks criticizes utilitarian and retributive theories of punishment but argues that utilitarian and retributive goals can be incorporated into a coherent and unified theory of punitive restoration, according to which punishment is a means of reintegrating criminals into society and restoring rights. I point to some difficulties with Brooks’ criticisms of retributive and utilitarian theories, and argue that his theory of punitive restoration is not unified or coherent. I argue further that a theory attempting to capture the complex set (...)
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  15. added 2018-08-29
    Who Can Blame Whom? Moral Standing to Blame and Punish Deprived Citizens.Gustavo A. Beade - forthcoming - Criminal Law and Philosophy:1-11.
    There are communities in which disadvantaged groups experience severe inequality. For instance, poor and indigent families face many difficulties accessing their social rights. Their condition is largely the consequence of the wrong choices of those in power, either historical or more recent choices. The lack of opportunities of these deprived citizens is due to state omissions. In such communities, it is not unusual for homeless members of these particular groups to occupy abandoned lands and build their shelters there. However, almost (...)
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  16. added 2018-08-29
    A Moral Predicament in the Criminal Law.Gary Watson - 2015 - Inquiry: An Interdisciplinary Journal of Philosophy 58 (2):168-188.
    This essay is about the difficulties of doing criminal justice in the context of severe social injustice. Having been marginalized as citizens of the larger community, those who are victims of severe social injustice are understandably alienated from the dominant political institutions, and, not unreasonably, disrespect their authority, including that of the criminal law. The failure of equal treatment and protection and the absence of anything like fair and decent life prospects for the members of the marginalized populations erode the (...)
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  17. added 2018-08-01
    Why Reconciliation Requires Punishment But Not Forgiveness.Thaddeus Metz - forthcoming - In Krisanna Scheiter & Paula Satne (eds.), Conflict and Resolution: The Ethics of Forgiveness, Revenge, and Punishment (tentative title). Springer.
    Adherents to reconciliation, restorative justice and related approaches to dealing with social conflict are well known for being anti-retributive, that is, for rejecting the imposition of punishment on wrongdoers without the expectation of anything good, in the manner of ‘an eye for an eye’. In addition, proponents usually understand these approaches to prescribe either no punishment at all or at least its minimization, in favour of offenders hearing out victims, making an apology, and effecting compensation for wrongful harm, and then (...)
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  18. added 2018-07-17
    Hypocrisy, Inconsistency, and the Moral Standing of the State.Kyle G. Fritz - forthcoming - Criminal Law and Philosophy:1-19.
    Several writers have argued that the state lacks the moral standing to hold socially deprived offenders responsible for their crimes because the state would be hypocritical in doing so. Yet the state is not disposed to make an unfair exception of itself for committing the same sorts of crimes as socially deprived offenders, so it is unclear that the state is truly hypocritical. Nevertheless, the state is disposed to inconsistently hold its citizens responsible, blaming or punishing socially deprived offenders more (...)
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  19. added 2018-07-04
    Reconciliation as the Aim of a Criminal Trial: Ubuntu’s Implications for Sentencing.Thaddeus Metz - forthcoming - Constitutional Court Review 9.
    In this article, I seek to answer the following cluster of questions: What would a characteristically African, and specifically relational, conception of a criminal trial’s final end look like? What would the Afro-relational approach prescribe for sentencing? Would its implications for this matter forcefully rival the kinds of penalties that judges in South Africa and similar jurisdictions typically mete out? After pointing out how the southern African ethic of ubuntu is well understood as a relational ethic, I draw out of (...)
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  20. added 2018-07-02
    Kant e il diritto di punire.Daniela Tafani - 2000 - Quaderni Fiorentini Per la Storia Del Pensiero Giuridico Moderno:55-84.
  21. added 2018-06-25
    Multiple-Offense Sentencing Discounts: Score One for Hybrid Accounts of Punishment.Zachary Hoskins - 2017 - In Jesper Ryberg, Julian Roberts & Jan W. de Keijser (eds.), Sentencing Multiple Crimes. New York, USA: Oxford University Press. pp. 75-93.
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  22. added 2018-06-20
    Reactive Sentiments and the Justification of Punishment.Andrew Engen - 2015 - Philosophy and Public Issues - Filosofia E Questioni Pubbliche 5 (1).
    Traditional justifications of punishment, deterrence theory and retributivism, are subject to counterexamples that show that they do not explain why generally we have positive reason to punish those who commit serious crimes. Nor do traditional views sufficiently explain why criminals cannot reasonably object to punishment on the grounds that it deprives them of goods to which they are usually entitled. I propose an alternative justification of punishment, grounded in its blaming function. According to the “reactive theory,” punishment is justified because (...)
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  23. added 2018-06-20
    Communication, Expression, and the Justification of Punishment.Andy Engen - 2014 - Athens Journal of Humanities and Arts 1 (4):299-307.
    Some philosophers (Duff, Hampton) conceive of punishment as a way of communicating a message to the punished and argue that this communicative function justifies the harm of punishment. I object to communicative theories because punishment seems intuitively justified in cases in which it fails as a method of communication. Punishment fails as communication when the punished ignores the intended message or fails to understand it. Among those most likely to ignore or fail to understand the message of punishment are the (...)
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  24. added 2018-06-16
    An Ubuntu-Based Evaluation of the South African State's Responses to Marikana: Where's the Reconciliation?Thaddeus Metz - forthcoming - In Mia Swart (ed.), Marikana––Some Years on (tentative title). University of Cape Town Press.
    Reprint of an article first appearing in Politikon (2017).
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  25. added 2018-06-05
    Responsibility and Moral Luck: Comments on Benjamin Zipursky, Two Dimensions of Responsibility in Crime, Tort, and Moral Luck.Re'em Segev - 2008 - Theoretical Inquiries in Law 9 (1):17-24.
    The essence of the moral luck question is whether the responsibility of persons is determined only in light of actions that are within their control or also in light of factors, such as the consequences of their actions, which are beyond their control. Most people seem to have contrasting intuitions regarding this question. On the one hand, there is a common intuition that the responsibility of persons should be judged only in light of what is within their control. On the (...)
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  26. added 2018-05-28
    Do Wrongdoers Have a Right to Make Amends?Linda Radzik - 2003 - Social Theory and Practice 29 (2):325-341.
    The recent literature on criminal justice has yielded an intriguing suggestion: that someone who does wrong has a right to make amends. In this essay, I evaluate arguments for and against this claim with regard to cases of both criminal wrongdoing and private wrongs. I conclude that the balance of arguments speaks in favor of a right to make amends. This conclusion has ramifications for the just design of criminal sanctions, and these will also be addressed here.
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  27. added 2018-05-09
    Against Capital Punishment.Benjamin S. Yost - forthcoming - New York: Oxford University Press.
    _Against Capital Punishment_ offers an innovative proceduralist argument against the death penalty. Worries about procedural injustice animate many popular and scholarly objections to capital punishment. Philosophers and legal theorists are attracted to procedural abolitionism because it sidesteps controversies over whether murderers deserve death, holding out a promise of gaining rational purchase among death penalty retentionists. Following in this path, the book remains agnostic on the substantive immorality of execution; in fact, it takes pains to reconstruct the best arguments for capital (...)
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  28. added 2018-04-15
    Recovering Lost Moral Ground: Can Walt Make Amends?James Mahon & Joseph Mahon - 2016 - In Kevin Decker, David Koepsell & Robert Arp (eds.), Philosophy and Breaking Bad. New York, USA: Palgrave Macmillan. pp. 143-160.
    Is it possible to recover lost moral ground? In the closing episodes of the TV show "Breaking Bad", it becomes clear that the protagonist, Walter White, believes that the correct answer to this question is an affirmative one. Walt believes that he can, and that he has, recovered lost moral ground. "Breaking Bad" may be said to explore two distinct and incompatible ways of attempting to recover lost moral ground. The first way is revisionist. This is to rewrite the script (...)
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  29. added 2018-04-13
    Mandatory Minimums and the War on Drugs.Daniel Wodak - forthcoming - In David Boonin (ed.), Palgrave Handbook of Philosophy and Public Policy. Palgrave.
    Mandatory minimum sentencing provisions have been a feature of the U.S. justice system since 1790. But they have expanded considerably under the war on drugs, and their use has expanded considerably under the Trump Administration; some states are also poised to expand drug-related mandatory minimums further in efforts to fight the current opioid epidemic. In this paper I outline and evaluate three prominent arguments for and against the use of mandatory minimums in the war on drugs—they appeal, respectively, to proportionality, (...)
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  30. added 2018-04-09
    Crime Victims and the Right to Punishment.David Alm - forthcoming - Criminal Law and Philosophy:1-19.
    In this paper, I consider the question of whether crime victims can be said to have a moral right to see their victimizers punished that could explain why they often feel wronged or cheated when the state fails to punish offenders. In the first part, I explain what I mean by a “right to punishment” and what it is for such a right to “explain” the frustrated crime victim’s reaction. In the second part, I distinguish such a right from a (...)
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  31. added 2018-03-30
    Retributivism, Consequentialism, and the Risk of Punishing the Innocent: The Troublesome Case of Proxy Crimes.Piotr Bystranowski - 2017 - Diametros 53:26-49.
    This paper discusses differences between two major schools in philosophy of criminal law, retributivism and consequentialism, with regard to the risk of punishing the innocent. As it is argued, the main point of departure between these two camps in this respect lies in their attitude towards the high evidentiary threshold in a criminal trial: while retributivism seems to strongly support setting this standard high, consequentialists may find it desirable to relax it in some cases. This discussion is set in the (...)
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  32. added 2018-03-23
    Nonconsensual Neurocorrectives and Bodily Integrity: A Reply to Shaw and Barn.Thomas Douglas - forthcoming - Neuroethics:1-12.
    In this issue, Elizabeth Shaw and Gulzaar Barn offer a number of replies to my arguments in ‘Criminal Rehabilitation Through Medical Intervention: Moral Liability and the Right to Bodily Integrity’, Journal of Ethics. In this article I respond to some of their criticisms.
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  33. added 2018-03-13
    How Should Free Will Skeptics Pursue Legal Change?Marcelo Fischborn - 2018 - Neuroethics 11 (1):47-54.
    Free will skepticism is the view that people never truly deserve to be praised, blamed, or punished for what they do. One challenge free will skeptics face is to explain how criminality could be dealt with given their skepticism. This paper critically examines the prospects of implementing legal changes concerning crime and punishment derived from the free will skeptical views developed by Derk Pereboom and Gregg Caruso. One central aspect of the changes their views require is a concern for reducing (...)
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  34. added 2018-03-12
    Introduction.Thomas Douglas & David Birks - forthcoming - In David Birks & Thomas Douglas (eds.), Treatment for Crime: Philosophical Essays on Neurointerventions in Criminal Justice. Oxford: Oxford University Press.
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  35. added 2018-03-12
    Biological Interventions for Crime Prevention.Christopher Chew, Thomas Douglas & Nadira Faber - forthcoming - In David Birks & Thomas Douglas (eds.), Treatment for Crime: Philosophical Essays on Neurointerventions in Criminal Justice. Oxford: Oxford University Press.
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  36. added 2018-03-09
    Justice Without Retribution: An Epistemic Argument Against Retributive Criminal Punishment.Gregg D. Caruso - forthcoming - Neuroethics:1-16.
    While retributivism provides one of the main sources of justification for punishment within the criminal justice system, there are good philosophical and practical reasons for rejecting it. One such reason is that it is unclear that agents truly deserve to suffer for the wrongs they have done in the sense required by retributivism. In Section 1 of this paper, I explore the retributivist justification of punishment and explain why it is inconsistent with free will skepticism. In Section 2, I then (...)
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  37. added 2018-03-08
    Resolving Judicial Dilemmas.Alexander Sarch & Daniel Wodak - forthcoming - Virginia Journal of Criminal Law.
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  38. added 2018-03-05
    Unlocking Morality From Criminal Law.Thom Brooks - 2017 - Journal of Moral Philosophy 14 (3):339-352.
    This review article critically examines R. A. Duff and Stuart P. Green’s wide-ranging Philosophical Foundations of Criminal Law. The book captures well a crucial debate at the heart of its topic: is morality a key for understanding criminal law? I first consider legal moralism arguments answering this question in the affirmative and argue they should be rejected. I next consider alternatives to argue that philosophers of criminal law should look beyond legal moralism for more compelling theories about criminal law.
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  39. added 2018-03-05
    A Précis of Punishment.Thom Brooks - 2015 - Philosophy and Public Issues - Filosofia E Questioni Pubbliche 5 (1).
    Punishment is a topic of increasing importance for citizens and policy-makers. The same can be said for academic researchers and students. Mass imprisonment has reached record high levels while public confidence is often lacking. New thinking is required urgently to address these challenges. Moreover, there have been several key developments in the philosophy of punishment over the last 20 years absent in leading guides including the communicative theory of punishment, restorative justice and my novel unified theory of punishment. -/- My (...)
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  40. added 2018-03-05
    Defending Punishment. Replies to Critics.Thom Brooks - 2015 - Philosophy and Public Issues - Filosofia E Questioni Pubbliche 5 (1).
    I am very grateful to the contributors for this symposium for their essays on my Punishment book. Each focuses with different elements of my work. Antony Duff examines the definition of punishment in my first few pages. Michelle Madden Dempsey analyses the importance given to coherence in my account and critique of expressivist theories of punishment. Richard Lippke considers my statements about negative retributivism in an important new defence of that approach. I examine each of these in turn below. While (...)
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  41. added 2018-03-05
    On F. H. Bradley’s “Some Remarks on Punishment”.Thom Brooks - 2014 - Ethics 125 (1):223-225,.
    Most philosophers reject what we might call "penal pluralism": the idea that punishment can and should encompass multiple penal goals or principles. This is rejected because it is often held that different penal goals or principles will conflict: the goal of punishing an offender to the degree deserved may differ and even undermine the goal of enabling deterrence or rehabilitation. For this reason, most philosophers argue that we must make a choice, such as choosing between retribution and its alternatives. In (...)
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  42. added 2018-03-05
    Law and Legal Theory.Thom Brooks (ed.) - 2013 - Brill.
    brings together some of the most important essays in the area of the philosophy of law written by leading, international scholars and offering significant contributions to how we understand law and legal theory to help shape future debates.
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  43. added 2018-03-05
    Rousseau and Law.Thom Brooks - 2005
    Jean-Jacques Rousseau stands as one of the most influential figures in the history of philosophy. His masterpiece-The Social Contract-has had a profound effect on legal and political theorists ever since its appearance. Rousseau and Law presents for the first time in one collection the most important contemporary work exploring his many contributions to legal theory. These essays deal with a variety of issues, such as social contract theories, democratic rights, fundamental law, natural law and natural rights, affinities between Rousseau and (...)
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  44. added 2018-03-05
    T.H. Green's Theory of Punishment.T. Brooks - 2003 - History of Political Thought 24 (4):685-702.
    Green agrees with Kant on the abstract character of moral law as categorical imperatives and that intentional dispositions are central to a moral justification of punishment. The central problem with Kant's account is that we are unable to know these dispositions beyond a reasonable estimate. Green offers a practical alternative, positing moral law as an ideal to be achieved, but not immediately enforceable through positive law. Moral and positive law are bridged by Green's theory of the common good through the (...)
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  45. added 2018-02-17
    What is Legal Moralism?Thomas Søbirk Petersen - 2011 - SATS 12 (1):80-88.
    The aim of this critical commentary is to distinguish and analytically discuss some important variations in which legal moralism is defined in the literature. As such, the aim is not to evaluate the most plausible version of legal moralism, but to find the most plausible definition of legal moralism. As a theory of criminalization, i.e. a theory that aims to justify the criminal law we should retain, legal moralism can be, and has been, defined as follows: the immorality of an (...)
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  46. added 2018-02-16
    Liability to International Prosecution: The Nature of Universal Jurisdiction.Anthony Reeves - 2017 - European Journal of International Law 28 (4):1047-1067.
    The paper considers the proper method for theorizing about criminal jurisdiction. It challenges a received understanding of how to substantiate the right to punish, and articulates an alternative account of how that theoretical task is properly conducted. The received view says that a special relationship is the ground of a tribunal’s authority to prosecute and, hence, that a normative theory of that authority is faced with identifying a distinctive relation. The alternative account locates prosecutorial standing on an institution’s capacity to (...)
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  47. added 2018-02-16
    Law, Morality, and Society: Essays in Honour of H. L. A. Hart.P. M. S. Hacker & Joseph Raz (eds.) - 1977 - Oxford University Press.
    Law, Morality and Society Essays in Honour of H.L.A Hart.
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  48. added 2018-01-18
    Criminal Attempts and the Penal Lottery.Andrew C. Khoury - 2018 - Australasian Journal of Philosophy 96 (4):779-792.
    In most penal systems, success is punished more than failure. For example, murder is punished more severely than attempted murder. But success or failure is often determined by luck. It thus appears that punishment is allotted on the basis of arbitrary factors. The problem of criminal attempts is the question of how to best resolve this apparent tension. One particularly sophisticated attempt at resolution, first developed by David Lewis, holds that such differential punishment is not unjust when understood as a (...)
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  49. added 2018-01-08
    Punishment and the Rebalancing of Status.Gerald Lang - 2014 - Philosophy and Public Issues - Filosofia E Questioni Pubbliche 4 (3):53-67.
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  50. added 2017-11-28
    A New Societal Self-Defense Theory of Punishment—The Rights-Protection Theory.Hsin-Wen Lee - 2018 - Philosophia 46 (2):337-353.
    In this paper, I propose a new self-defense theory of punishment, the rights-protection theory. By appealing to the interest theory of right, I show that what we call “the right of self-defense” is actually composed of the right to protect our basic rights. The right of self-defense is not a single, self-standing right but a group of derivative rights justified by their contribution to the protection of the core, basic rights. Thus, these rights of self-defense are both justified and constrained (...)
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1 — 50 / 955