Abstract
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.
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Notes
At the time of this writing, Boonin’s book was not yet in print. I am grateful to him for allowing me to cite from the ‘‘CUP version’ of his book as it appeared on his website (http://stripe.colorado.edu/~boonind) in February 2008.
See also Matravers (2000, p. 62): ‘fair play theory risks reducing all criminal actions to the same act: the non-mediation of one’s self-interest by the duty of fair play.’
For the purposes of this essay, I do not think it necessary to distinguish between so-called contractarian and contractualist versions of social-contract theory, as has been done in recent years.
In a reference to ‘Playing Fair with Punishment’, Montague brings me into the complaint: ‘Dagger provides no reason at all to believe that many (or any) murderers, rapists, and so on, act contrary to agreements when they commit their crimes.’ He also says, ‘Nor does [Dagger] argue that, even if some seriously harmful acts are also unfair to those who are harmed, such acts should be punished because they are unfair rather than because they are harmful’ (Montague 1995, p. 166, n. 14). My point, however, was and is that the state has the right to punish law breakers because it is the state’s responsibility to preserve the political or legal order as a cooperative enterprise. Other things equal, law breaking should be punished for its unfairness even when it is not obviously harmful.
I owe this point to Antony Duff.
As we have seen, Boonin and Montague raise much the same objection, as does Matravers (2000, p. 64).
In this way the direct response provides an answer to Matravers’ complaint that ‘in focusing [as fair-play theory does] on the restoration of some state of affairs the important retributive connection between the act of the offender and that offender’s punishment is threatened’ (Matravers 2000, pp. 60–61). As I see it, restoring the proper state of affairs—a state of fair play—requires that the offender’s act be connected to his or her punishment, at least in the sense that some offenses are more serious violations of fair play than others.
Readers more familiar with cricket than with baseball will appreciate Antony Duff’s way of stating the example: ‘if I bowl a live grenade rather than a ball at an opposing batsman, my wrongdoing is more heinous than that of someone who bowls a beamer, or who cheats—but I don’t think that that’s a matter of unfairness.’ I have borrowed this example to respond to an objection that Duff raised to the draft of this paper presented at the Stirling conference.
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Acknowledgments
For helpful comments on an earlier draft of this essay, I am grateful to the other participants in the Stirling Law and Philosophy Conference. I am especially grateful to Antony Duff, the assigned commentator, for his acute but sympathetic criticism.
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Dagger, R. Punishment as Fair Play. Res Publica 14, 259–275 (2008). https://doi.org/10.1007/s11158-008-9071-1
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DOI: https://doi.org/10.1007/s11158-008-9071-1