Res Publica 16 (1):73-81 (2010)
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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.
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Keywords | Criminal Fair-Play Law Punishment Reciprocity Retributivism |
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DOI | 10.1007/s11158-010-9119-x |
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[Book Review] Forgiveness and Mercy. [REVIEW]Jeffrie G. Murphy & Jean Hampton - 1990 - Ethics 100 (2):413-415.
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Citations of this work BETA
Punishment, Fair Play and the Burdens of Citizenship.Piero Moraro - 2019 - Law and Philosophy 38 (3):289-311.
Fairness-Based Retributivism Reconsidered.Göran Duus-Otterström - 2017 - Criminal Law and Philosophy 11 (3):481-498.
Regaining Traction on the Problem of Punishment: A Critique of David Boonin’s Use of the Entailment Test.Alex Howe - 2019 - Res Publica 25 (2):261-272.
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2010-03-24
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274 ( #38,489 of 2,497,797 )
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8 ( #89,700 of 2,497,797 )
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