Rescuing fair-play as a justification for punishment

Res Publica 16 (1):73-81 (2010)

Authors
Matt Stichter
Washington State University
Abstract
The debate over whether ‘fair-play’ can serve as a justification for legal punishment has recently resumed with an exchange between Richard Dagger and Antony Duff. According to the fair-play theorist, criminals deserve punishment for breaking the law because in so doing the criminal upsets a fair distribution of benefits and burdens, and punishment rectifies this unfairness. Critics frequently level two charges against this idea. The first is that it often gives the wrong explanation of what makes crime deserving of punishment, since the wrongfulness of murder is not primarily about unfairness. The second is that it implies that all crimes deserve the same degree of punishment, because all crimes create the same degree of unfairness. These objections are viewed as revealing fatal flaws in the theory. Although Dagger attempts to meet these objections by drawing on political theory, Duff responds that this still draws upon the wrong kind of resources for meeting these objections. This paper argues that these two objections rest on a crucial mistake that has been overlooked by both the defenders and critics of fair-play. This mistake results from failing to distinguish between what justifies punishment as a response to crime (which requires a common element to all crime) and what justifies attaching particular penalties to crimes (which requires making distinctions in the severity of crime). The arguments presented will give reasons to consider fair-play as a viable justification for legal punishment.
Keywords Criminal  Fair-Play  Law  Punishment  Reciprocity  Retributivism
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DOI 10.1007/s11158-010-9119-x
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References found in this work BETA

The Problem of Punishment.David Boonin - 2008 - Cambridge University Press.
Some Thoughts About Retributivism.David Dolinko - 1991 - Ethics 101 (3):537-559.
Punishment as Fair Play.Richard Dagger - 2008 - Res Publica 14 (4):259-275.
Playing Fair with Punishment.Richard Dagger - 1993 - Ethics 103 (3):473-488.

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Citations of this work BETA

Fairness-Based Retributivism Reconsidered.Göran Duus-Otterström - 2017 - Criminal Law and Philosophy 11 (3):481-498.
Punishment, Fair Play and the Burdens of Citizenship.Piero Moraro - 2019 - Law and Philosophy 38 (3):289-311.

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