Abstract
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.
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Notes
It is a further question whether we should then justify punishment as a burdensome imposition which aims to removes that unfair advantage.
The distinction between mala in se and mala prohibita is of course neither clear nor uncontroversial, and my remarks here are grossly oversimplified; see Duff (2007: chs. 4.4, 7.3).
On the idea of crimes as ‘public’ wrongs, see Marshall and Duff (1998).
Note that in such cases, unlike those of murder or rape, the ‘burden’ is indeed one that a reasonable person would find burdensome: it involves giving up what can properly count as a good, such as money or freedom.
Dagger also argues, in s. 4, that some crimes are more serious than others precisely as violations of fair play: I cannot discuss this argument here, but suspect that it involves moving away from the idea of unfair advantage to that of respecting others as equal partners in a cooperative endeavour in a way that makes it harder to see how punishment is justified as removing an unfair advantage.
References
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Duff, A. The Incompleteness of ‘Punishment as Fair Play’: A Response to Dagger. Res Publica 14, 277–281 (2008). https://doi.org/10.1007/s11158-008-9072-0
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DOI: https://doi.org/10.1007/s11158-008-9072-0