Criminal Law and Philosophy 5 (3):361-376 (2011)

Brian Rosebury
University of Central Lancashire
The purely retributive moral justification of punishment has a gap at its centre. It fails to explain why the offender should not be protected from punishment by the intuitively powerful moral idea that afflicting another person (other than to avoid a greater harm) is always wrong. Attempts to close the gap have taken several different forms, and only one is discussed in this paper. This is the attempt to push aside the ‘protecting’ intuition, using some more powerful intuition specially invoked by the situations to which criminal justice is addressed. In one aspect of his complex defence of pure retributivism, Michael S. Moore attempts to show that the emotions of well-adjusted persons provide evidence of moral facts which justify the affliction of culpable wrongdoers in retribution for their wrongdoing. In particular, he appeals to the evidential significance of emotions aroused by especially heinous crimes, including the punishment-seeking guilt of the offender who truly confronts the reality of his immoral act. The paper argues that Moore fails to vindicate this appeal to moral realism, and thus to show that intrinsic personal moral desert (as distinct from ‘desert’ in a more restricted sense, relative to morally justified institutions) is a necessary and sufficient basis for punishment. Other theories of the role of emotions in morality are as defensible as Moore’s, while the compelling emotions to which he appeals to clinch his argument can be convincingly situated within a non-retributivist framework, especially when the distinction between the intuitions of the lawless world, and those of the world of law, is recognised. -/- .
Keywords justification of punishment  retributive theory  moral significance of emotions  desert  resentment  guilt  moral realism
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DOI 10.1007/s11572-011-9117-x
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References found in this work BETA

The Theory of Moral Sentiments.Adam Smith - 1759 - Dover Publications.
Two Concepts of Rules.John Rawls - 1955 - Philosophical Review 64 (1):3-32.
Collected Papers.John Rawls - 1999 - Harvard University Press.

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Citations of this work BETA

Harm and Wrongdoing in Criminalisation Theory.Andreas von Hirsch - 2014 - Criminal Law and Philosophy 8 (1):245-256.
The Intrinsic Good of Justice.Brian John Rosebury - 2019 - Ratio Juris 32 (2):193-209.

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