Abstract
This is a slightly revised text of Jeffrie G. Murphy’s Presidential Address delivered to the American Philosophical Association, Pacific Division, in March 2006. In the essay the author reconsiders two positions he had previously defended—the liberal attack on legal moralism and robust versions of the retributive theory of punishment—and now finds these positions much more vulnerable to legitimate attack than he had previously realized. In the first part of the essay, he argues that the use of Mill’s liberal harm principle against legal moralism cannot be cabined in such a way as to leave intact other positions that many liberals want to defend—in particular, certain fundamental constitutional rights and character retributivism in criminal sentencing. In the second part of the essay, he expresses serious doubts—some inspired by Nietzsche—about the versions of character retributivism that he had once enthusiastically defended and now describes himself as no more than a “reluctant retributivist.”
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Notes
From William Blake (c. 1800–1803) ‘Auguries of Innocence’, first published in Dante Gabriel Rossetti (Ed.), William Blake, Poems, 1863.
References
I have provided a list of the publications of mine on which I have drawn in preparing my Presidential Address and a list of the works of some other contemporary philosophers (I am sure that I have forgotten many) who have greatly influenced my thinking on the topics covered in the address. Full citations to Kant may be found in (3) below, and full citations to Nietzsche may be found in (7) below.
Works by Jeffrie G. Murphy
1. (1973). Marxism and retribution. Philosophy and Public Affairs, 2, 217–243.
2. (1985). Retributivism, moral education, and the liberal state. Criminal Justice Ethics, 4, 3–11.
3. (1987). Does Kant have a theory of punishment? Columbia Law Review, 87, 509–532.
4. (1988). Forgiveness and mercy, with Jean Hampton. Cambridge: Cambridge University Press.
5. (1995). Legal moralism and liberalism. Arizona Law Review, 37, 73–94. This essay contains an appendix in which I try to respond to critiques from Jean Hampton and Herbert Morris on the main body of the essay.
6. (1997). Repentance, punishment, and mercy. In A. Etzioni (Ed.), Repentance—a comparative perspective (pp. 143–170). Lanham: Rowman and Littlefield.
7. (1999). Moral epistemology, the retributive emotions, and the ‘clumsy moral philosophy’ of Jesus Christ. In S. Bandes (Ed.), The passions of law (pp. 149–167). New York: New York University Press.
8. (1999). Shame creeps through guilt and feels like retribution. Law and Philosophy, 18, 327–344.
9. (2003). Getting even—forgiveness and its limits. New York: Oxford University Press.
10. (2004). Law like love. Syracuse Law Review, 55, 15–32.
11. (2006). Remorse, apology, and mercy. Forthcoming in Ohio State Journal of Criminal Law.
Works by others
Burgh, R. (1982). Do the guilty deserve punishment? Journal of Philosophy, 74, 193–213. Powerful skeptical case against certain forms of retributivism.
Devlin, P. (1965). The enforcement of morals. Oxford: Oxford University Press. This contains as Chapter 1 a reprinting of the 1959 Maccabaean lecture ‘The enforcement of morals’ and some responses to Hart’s critique of that essay.
Dolinko, D. (1991). Some thoughts about retributivism. Ethics, 101, 537–559. One of several insightful essays in which Dolinko develops a critique of retributivism.
Dressler, J. (1990). Hating criminals: how can something that feels so good be wrong? Michigan Law Review, 88, 1448. In this essay Dressler accuses me, with some justice, of exhibiting excessively ‘macho’ attitudes in my defense of retributive hatred in Forgiveness and Mercy.
Duff, R. A. (1986). Trials and punishments. Cambridge: Cambridge University Press. Sympathetic treatment of some forms of retributivism while locating them in a framework of more communitarian values.
Dworkin, R. (1985). A matter of principle. Cambridge, MA: Harvard University Press. Develops the idea that governmental neutrality is central to liberalism.
Feinberg, J. (1987). Some unswept debris from the Hart–Devlin debate. Synthese, 72, 249–275. Seeks to meet with a principle of fairness Devlin’s critique of Millian liberalism.
Hampton, J. (1985). How you can be both a liberal and a retributivist: comments on ‘Legal moralism and liberalism’ by Jeffrie Murphy. Arizona Law Review, 37, 105–116
Hart, H. L. A. (1963). Law, liberty and morality. Stanford: Stanford University Press. A critique of Lord Devlin’s Maccabaean lecture ‘The enforcement of morals.’
Hart, H. L. A. (1968). Prolegomenon to the principles of punishment. In Punishment and responsibility—essays in the philosophy of law (pp. 1–27). Oxford: Oxford University Press. Distinguishes between a distributive question about punishment and a question about punishment’s general justifying aim.
Kant, I. (1960). Religion within the limits of reason alone (pp. 33–34), trans. T. M. Greene and Hoyt H. Hudson. New York: Harper.
Moore, M. S. (1987). The moral worth of retribution. In F. Schoeman (Ed.), Responsibility, character and the emotions (pp. 179–219). Cambridge: Cambridge University Press. In my view, this joins Herbert Morris’s ‘Persons and punishment’ as one of the two most powerful philosophical defenses of retributivism.
Morris, H. (1968). Persons and punishment. Monist, 52, 475–501. A powerful defense of robust retributivism that almost single-handedly rendered such retributivism philosophically respectable again.
Morris, H. (1995). Professor Murphy on liberalism and retributivism. Arizona Law Review, 37, 73–104
Nozick, R. (1977). Anarchy, state and utopia. New York: Basic Books. Challenges fairness arguments based on mere receipt of benefits.
Rawls, J. (1955). Two concepts of rules. Philosophical Review, 64, 3–13. A generally rule-utilitarian defense of retribution conceived as limiting punishment to the legally guilty.
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An earlier version of this essay was delivered as the Presidential Address of the American Philosophical Association, Pacific Division, on March 24, 2006. A transcript of the Address will appear in Proceedings and Addresses of the American Philosophical Association.
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Murphy, J.G. Legal moralism and retribution revisited. Criminal Law, Philosophy 1, 5–20 (2007). https://doi.org/10.1007/s11572-006-9000-3
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DOI: https://doi.org/10.1007/s11572-006-9000-3