The rights-forfeiture theory of punishment attempts to explain and justify the practice of punishment by arguing that wrongdoers in virtue of their wrongdoing have forfeited the right not to be punished. The theory however faces many challenges, including how to explain just what right or rights have been forfeited. Most problematic for the theory is that, in claiming that wrongdoers forfeit their rights, it seems merely to restate the claim that punishment is morally permissible rather than providing an (...) explanation of why it is permissible. (shrink)

Dwayne Giles shot and killed Brenda Avie, his ex-girlfriend, and claimed self-defense. At trial, to rebut Giles's testimony that she was the aggressor, prosecutors introduced statements that Avie had made three weeks before the shooting to a police officer responding to a report of domestic violence. Crying while she spoke, Avie told the officer that Giles had choked, punched, and threatened to kill her. After he was convicted of murder, Giles claimed that the admission of Avie's hearsay statement was a (...) violation of the Confrontation Clause. The state responded that the defendant had forfeited his right to confront Avie by killing her. In the last week of its last Term, the United States Supreme Court considered these arguments in California v. Giles. The case was decided in the wake of Crawford v. Washington and Davis v. Washington, which together transformed the Confrontation Clause and, as a consequence, the prosecution of domestic violence. Giles, which generated five opinions and exposed a Court deeply ambivalent about the reinterpreted confrontation right, has done little to impose order on this chaos. This Essay, which will be published in Lewis and Clark's symposium issue on Giles, contemplates the future of domestic violence prosecution in a period of uncertainty. My analysis endeavors to guide lower courts in the task of application and to map a course for the evolution of prosecutorial approaches to battering. I conclude that Giles represents a significant opportunity for those concerned about the constraints Crawford and Davis had seemed to place on the prosecution of domestic violence. For the first time, the Court has identified "the domestic violence context" as a relevant construct, thereby compelling lower courts to grapple with the particularities of violence between intimates. This is a remarkable shift in relatively short order, and it allows us to glimpse the possibility of a jurisprudence informed by the realities of battering. (shrink)

This paper is not so much concerned with the question under which circumstances self-defense is justified, but rather with other normative features of self-defense as well as with the source of the self-defense justification. I will argue that the aggressor’s rights-forfeiture alone – and hence the liberty-right of the defender to defend himself – cannot explain the intuitively obvious fact that a prohibition on self-defense would wrong victims of attack. This can only be explained by conceiving of self-defense also (...) as a claim-right. However, I will also argue that a claim-right cannot ground the self-defense justification either. Rather, what grounds the self-defense justification and its particular strength and scope is the fact that self-defense is an act-specific agent-relative prerogative: a defender is allowed to give particularly grave weight to his interest in engaging in self-defense, which distinguishes self-defense from most other acts. This is not the same as saying that he has a right or a liberty to engage in self-defense. Thus, self-defense, understood as a normative concept, is a claim-right, a liberty-right, and an act-specific agent-relative prerogative. (shrink)

Menges (2022) seeks to identify the kind of blame that should be at issue in debates between skeptics and anti-skeptics about responsibility. Menges argues that such blame is constituted by responses that the target has a claim against, and by the blamer’s thought that they have forfeited this claim due to their bad action and state while engaged in that action. I identify a class of blame responses that Menges mistakenly excludes and offer an alternative, more general, account (...) in which the distinctive feature of controversial blame isn’t claim forfeiture, but the defeat of reasons grounded in the target’s interests. (shrink)

This book develops an alternative account of rights according to which rights forfeiture has a much smaller role to play because rights themselves are more contextually contingent. For example, those who threaten to cause harm without a right to do so have weaker claims not to be killed than innocent bystanders or those who have a right to threaten to cause harm. By framing rights as the output of a balance of competing claims, and by laying out a detailed (...) account of how to balance competing claims, Walen provides a more coherent account of when killing in war is permissible. (shrink)

Surprisingly often Kant asserts that it is possible to behave in such a degrading way that one ‘throws oneself away’ and turns oneself ‘into a thing’, as a result of which others may treat one ‘as they please’. Rather than dismiss these claims out of hand, I argue that they force us to reconsider what is meant and required by ‘respect for humanity’. I argue that to ‘throw away’ humanity is not to lose or extinguish it, but rather to refuse (...) or otherwise fail to claim the respect that it authorizes one to claim. If I refuse or fail to make this claim, there is a sense in which I become a thing, and I leave others no choice but to treat me as such. This is compatible with their respect for humanity in my person. (shrink)

The doctrine of the image of God is often regarded as grounding human dignity in something permanent and unchanging that transcends our attitudes and behaviors. Yet we persistently encounter the argument that particular human individuals or groups have acted so as to forfeit their moral standing as fellow humans. They are bestialized, categorized as non-human animals, lifting ordinary restraints on punishment. I examine the logic of this argument in John Locke, Thomas Aquinas, and contemporary felony disenfranchisement, showing how it involves (...) slippage between the unobjectionable notion that specific rights may in particular circumstances be forfeited, and the deeply troubling claim that one’s moral standing as human can as such be forfeited. I argue that an apparently similar rhetoric of dehumanization employed by Frederick Douglass, in contrast, refrains from stripping the opponent of moral considerability. (shrink)

Skepticism about blameworthiness says that there is good reason to doubt that, in our world, humans are ever blameworthy for their deeds. A significant problem for the discussion of this view is that it is unclear how to understand the kind of blame that should be at issue. This paper makes a new proposal. The basic idea is that the kind of blame skeptics should be skeptical about is constituted by responses that can violate the targets’ claims and by the (...) responders’ thought that the targets have forfeited this claim because of their morally objectionable actions and because of how they were when they performed them. This view identifies an important part of our everyday lives and frames discussions about skepticism about blameworthiness in a new way. (shrink)

Luck egalitarians contend that, while each person starts out with a claim to an equal quantity of advantage, she can forfeit this claim by making certain choices. The appeal of luck egalitarianism is that it seems to satisfy what this paper calls the moral tyranny constraint. According to this constraint, any acceptable theory of justice must preclude the possibility of an agent unilaterally, discretionarily, and foreseeably leaving others with less advantage under conditions of full compliance with the theory. (...) This paper argues that claim forfeiture is built into luck egalitarianism specifically to preclude such moral tyranny. However, it contends that the dominant interpretation of luck egalitarianism fails to fully satisfy the moral tyranny constraint. It offers an alternative interpretation that both eliminates the possibility of moral tyranny and rescues the position from two other prominent objections that have been directed against luck egalitarianism. (shrink)

This book offers a philosophical analysis of the moral and legal justifications for the use of force. While the book focuses on the ethics self-defense, it also explores its relation to lesser evil justifications, public authority, the justification of punishment, and the ethics of war. Steinhoff’s account of the moral use of force covers a wide range of topics, including the nature of justification in general, the precise elements of different justifications, the logic of claim- and liberty-rights and of (...) rights forfeiture, the value of human life and its limits, and the principles of reciprocity and precaution. While the author’s analysis is primarily philosophical, it is informed by a metaethical stance that also places heavy emphasis on existing law and legal scholarship. In doing so, the book appeals to widely shared moral intuitions, precepts, and concepts grounded in criminal law. Self-Defense, Necessity, and Punishment offers the most comprehensive and systematic account of the ethics of self-defense. It will be of interest to scholars and graduate students working in applied ethics and moral philosophy, philosophy of law, and political philosophy. (shrink)

Given quasi-realism, the claim is that any attempt to naturalise modal epistemology would leave out absolute necessity. The reason, according to Simon Blackburn, is that we cannot offer an empirical psychological explanation for why we take any truth to be absolutely necessary, lest we lose any right to regard it as absolutely necessary. In this paper, I argue that not only can we offer such an explanation, but also that the explanation won’t come with a forfeiture of the (...) involved necessity. Using ‘squaring the circle’ as evidence, I show that, contrary to quasi-realism, absolute necessity won’t be left out in attempts to naturalise modal epistemology. (shrink)

Sometimes a police officer can only stop a fleeing suspect by striking or shooting him. When is it morally justified to use such force rather than let the suspect go? Beginning with deadly force, this article disentangles key considerations. First, it distinguishes justifications for force that are premised on a liability or forfeiture from justifications premised upon lesser-evils considerations. Second, it unpacks the distinct interests the state might claim in subduing suspects, from adjudicating suspects, to punishing criminals, to (...) preventing crime. Drawing these distinctions shows that the state’s interests are weaker than they first appear, rarely sufficient to outweigh the individual’s strong interests against force, and many suspects are not liable to the force to which they are subjected. Ultimately, we conclude (perhaps unsurprisingly) many legally permissible uses of force are morally unjustified. Finally, we turn to ways our analysis can be extrapolated to nondeadly force. (shrink)

When a provocateur intentionally provokes a deadly affray, the law of self-defense holds that the provocateur may not use deadly force to defend himself. Why is this so? Provocateurs are often seen as just one example of the problem of actio libera in causa, the causing of the conditions of one’s defense. This article rejects theories that maintain a one-size-fits-all approach to actio libera in causa, and argues that provocateurs need specific rules about why they forfeit their defensive rights. This (...) article further claims that provocateurs need to be distinguished from their cousins, initial aggressors, as initial aggressors engage in conduct that grounds the permissibility of the defender’s behavior whereas the provocateur’s behavior does not justify the respondent’s use of force against him. In addition, this article rejects that the basis of this forfeiture can be found in the doctrines surrounding when and why mitigation for provocation is appropriate for the respondent. Provocateurs forfeit their defensive rights for the very simple reason that they start the fight. This forfeiture occurs when they behave culpably, meaning that they subjectively appreciate that they are running the risk of causing force to be used against them and they engage in this behavior without justification or excuse. The question of when the provocateur’s behavior is justified is incredibly complex. It requires analysis of when it is that one is justified in increasing the risk of another’s wrongdoing. Any analysis of this justification must take seriously the liberty rights of the potential provocateur to engage in otherwise permissible behavior. Moreover, the determination of whether the provocateur is justified will turn on whether the later acts that he puts into motion are themselves justified. Thus, when Charles Bronson in the movie Death Wish presents himself as a victim so that muggers will attack him, the justifiability of his conduct in appearing as a vulnerable victim will turn on whether he is entitled to engage in this conduct, intending to later defend himself. This article argues that in Death Wish-type cases, the reason that the provocateur is not justified is because he becomes a vigilante, thereby usurping the role of the state and undermining rule of law values. (shrink)

This essay contrasts two approaches to permissible self-defensive killing. The first is the forfeiture approach; the second is the elbow room for self-defense approach. The forfeiture approach comes in many versions — not all of which make prominent use of the word “forfeiture.” However, all versions presume that the permissibility of X killing Y (when X must kill Y in order to prevent herself from being unjustly killed) depends entirely on there being some feature of Y in (...) virtue of which Y has become liable to be killed, that is, in virtue of which Y has forfeited or lost or been stripped of his right not to be killed. Different versions of the forfeiture approach advance different claims about what feature of Y will render Y liable to being killed by X. I criticize versions of this approach offered by Thomson, Otsuka, and McMahan and argue that the shared deep error is the presumption that the permissibility of X’s action turns entirely on some feature of Y. In focusing entirely on Y, the forfeiture approach fails to take seriously X’s right of self-defense. In contrast, the elbow room for self-defense approach starts with an explication of a plausible right of self-defense and maintains that a proper explication of Y’s right not to be killed must make moral elbow room from X’s exercise of this right. Within the elbow room approach, Y’s liability to being killed is based upon X’s right of self-defense rather than the permissibility of X’s killing Y being based upon Y’s forfeiture. (shrink)

In this article, I contrast two theories of history: a Marxist theory (that of G. A. Cohen) and an anarchist theory. Both theories, in their respective attempts at explaining epochal transitions, seem to require some plausible construal of Marx's claim that revolutions occur when a society's economic relations ‘fetter’ the development of its productive forces. From an examination of a number of different construals of ‘fettering’—‘development fettering’, ‘use fettering’, ‘ACRU fettering’, ‘net fettering’, and even ‘forfeitur’—I conclude that none of (...) them supports the Marxist theory of revolution, while each is consistent with the anarchist theory of epochal transformation. (shrink)

McMahan argues that justification defeats liability to defensive attack (which would undermine the thesis of the "moral equality of combatants"). In response, I argue, first, that McMahan’s attempt to burden the contrary claim with counter-intuitive implications fails; second, that McMahan’s own position implies that the innocent civilians do not have a right of self-defense against justified attackers, which neither coheres with his description of the case (the justified bombers infringe the rights of the civilians) nor with his views about (...) rights forfeiture, is unsupported by independent argument, and, in any case, extremely implausible and counter-intuitive; and third, that his interpretation of the insulin case confuses the normative relations between an agent’s justification and non-liability on the one hand and permissible or impermissible interference with the agent’s act on the other. Similar confusions, fourth, affect his discussion of liability to compensation. (shrink)

This article is a contribution to a symposium on Kit Wellman’s intriguing monograph, Rights Forfeiture and Punishment. Primarily, the article grapples with Wellman’s claims regarding the moral permissibility of sadistic punishment. The metaphor of “philosophical languages” is employed throughout, to compare Wellman’s use of rights-forfeiture discourse to an approach that is grounded in practical-reasons discourse. This study in philosophical translation allows us to reassess and critique Wellman’s conclusions regarding the moral permissibility of sadistic punishment. On one level, the (...) article is an attempt to engage with Wellman’s book and rights-forfeiture based arguments on, and in, their own terms. Yet, the article is also an attempt to explain and defend a practical-reasons based approach to appraising moral permissibility. If the article succeeds, it both pays tribute to Wellman’s masterful rights-forfeiture arguments, while making the case that practical-reason arguments illuminate a wider range of salient considerations that we should wish to keep in view when considering the moral permissibility of sadistic punishments. (shrink)

This paper examines Thomas Scanlon’s Value of Choice account of substantive responsibility, on which the fact that choice has value accounts both for why people should be provided with certain opportunities and for why it may be permissible, in those cases, to let people bear certain opportunity-accompanying burdens. Scanlon contrasts his view with the familiar one according to which it is permissible to require people to bear certain burdens if and only if they have actively chosen those burdens, because of (...) the legitimating force of choice. The paper argues that Scanlon’s account, in its most distinctive version, is at best incomplete and can only justify claims about responsibility for a restricted class of burdens. It then goes on to suggest that, when Scanlon’s account is supplemented so as to be able to generate judgments of responsibility about a wider range of burdens, it is no longer clear that there is a difference between the Value of Choice account and a plausible version of the Forfeiture View. (shrink)

This article provides a response to the contributors of this symposium. Notably, I respond to the following objections: that my list of just war criteria is too long on an “ideal” level and too short for practical purposes; that in particular my rejection of legitimate authority is misguided; that I am wrong in claiming that in just war theory the conditions of proportionality and necessity, which are separate in the self-defense justification, must be merged; that my “social practice view” – (...) which denies the existence of an “immutable”, “deep” morality of war and holds instead that widely accepted conventions have moral force and are therefore partly constitutive of the morality of war – faces severe challenges and makes too much of standing to complain and considerations of reciprocity; and that my account of rights forfeiture is mistaken. (shrink)

A victim of a crime may claim that the criminal must make restitution of the benefit gained at his expense. The enrichment may arise directly from the criminal act. For example, a criminal demands money with menaces or obtains Property by fraud. No legal system will allow him to retain his enrichment gained at his victim's expense. More difficult problems arise if the criminal's enrichment is an indirect enrichment, for example, if he or members of his family used information (...) relating to his criminal activities and published his story. The victim's common law claim may be defeated by such submissions as: the benefit was not gained at the plaintiff's expense or the criminal did not act wrongfully in using the information so acquired. There is also the forfeiture rule which insures, in England, that neither the legal nor beneficial title to property vests in the criminal; in contrast, in the United States, the criminal will be deemed to hold the property on constructive trust. These issues are discussed in Part I and Part II of the article respectively. Part III of the article discusses briefly the English legislation which seeks to deprive criminals of the profits of their criminal activities. An important statute, the Criminal Justice Act 1988, is not well drafted. The existence of such statutes should not exclude the possibility of a common law restitutionary claim where no confiscation order has been, or can be, made. This point is examined further in Part IV of the article, which discusses the implications of the important decision of the English Court of Appeal in Attorney-General v. Blake in 1998, where the defendants conduct amounted, not only to a breach of contract, but to a serious criminal offense. Part V of the article asks whether there should be further legislative intervention and suggests that the American statutes provide only limited guidance for the English draftsman. The nature and scope of any future English legislation must now take into account the United Kingdom Human Rights Act 1998. Its possible impact is discussed in the final Part, VI, of the article. (shrink)

In this article, I contrast two theories of history: a Marxist theory and an anarchist theory. Both theories, in their respective attempts at explaining epochal transitions, seem to require some plausible construal of Marx's claim that revolutions occur when a society's economic relations ‘fetter’ the development of its productive forces. From an examination of a number of different construals of ‘fettering’—‘development fettering’, ‘use fettering’, ‘ACRU fettering’, ‘net fettering’, and even ‘forfeitur’—I conclude that none of them supports the Marxist theory (...) of revolution, while each is consistent with the anarchist theory of epochal transformation. (shrink)

In some cases, the U.S. should adopt a policy of assassinating national leaders. On just war theory, national leaders are sometimes combatants. This is because some leaders are both causal and logical agents of an unjust military campaign. Such leaders occupy this logical role because in some cases their position has an essential link to their nation’s military projects. In addition, such a policy aligns with some of the policies that motivate just war theory in that assassination does not target (...) innocent persons, is connected to self-defense, and does not violate any international agreements. Just war theory should probably be rejected, however, since it rests on dubious claims about the non-contractual essentialist conditions of combatant. On a self-defense theory, some national leaders may be killed because they are threats. They are threats because they originate a causal process that will likely bring about large amounts of unjust harm. In so doing, they forfeit those moral rights that protect them against injurious action and thus remove one of the major constraints against violence and killing. On a consequentialist theory, such a policy would likely bring about the best consequences since it would be a vital tool in the protection against genocide, unjust military aggression, and other horrendous state actions that have characterized the twentieth century. It is unlikely that the harm that would result from such a policy (e.g., its misuse) would outweigh the expected gain from it. (shrink)

The article claims that a person who deserves punishment deserves it because, and only because, she has performed a culpable wrongdoing . The article thus rejects the theory that the basis of deserved punishment is a bad moral character. The argument rejecting The Character Theory of Deserved Punishment is divided into two parts:1) that it is not necessarily the case that an intentional act reflects the agent's moral character, and2) that it is not necessarily the case that a culpable wrongdoing (...) reflects the agent's moral character. The article then proceeds to isolate instances of culpable wrongdoing and of bad moral character to see which of these factors accompanies the considered moral judgment that the agent deserves punishment. It concludes that our intuitions suggest deserved punishment and the amount of punishment someone deserves, correlate with culpable wrongdoing rather than with a person's bad moral character. Der Beitrag geht davon aus, daß eine Person dann und nur dann Strafe verdient, wenn sie eine rechtswidrige Tat schuldhaft begangen hat. Er wendet sich damit gegen die Auffassung, Basis für eine verdiente Strafe sei der schlechte Charakter der bestraften Person. Das Argument, das die letztere Lehre verwirft, zerfällt in zwei Teile. 1) Es ist nicht notwendigerweise so, daß eine Vorsatztat den schlechten Charakter des Handelnden, und 2) es ist nicht notwendigerweise so, daß schuldhaft begangenes Unrecht überhaupt den Charakter des Handelnden widerspiegelt. Anschließend untersucht der Beitrag Beispiele schuldhaftes Unrechttuns und Beispiele schlechten moralischen Charakters, um festzustellen, welcher dieser Faktoren das moralische Urteil, daß der Handelnde Strafe verdient, begleitet. Er kommt zu dem Ergebnis, daß unsere Intuitionen den Gedanken, jemand verdiene Strafe, und die Höhe der Strafe, die der Betreffende verdient, mit der Annahme einer schuldhaft begangenen rechtswidrigen Tat korrelieren und nicht mit der Annahme der Betreffende habe einen schlechten Charakter. (shrink)

A punitive desert-claim should be understood as a claim about the intrinsic value of punishment, where this value is grounded in an act or feature of the person to be punished. The purpose of my project is to explore the structure and justification of such punitive desert-claims. ;I argue that a true punitive desert-claim takes the form and , and that belief in these principles is justified on the basis of our considered moral judgments. The Principle of (...) Deserved Punishment. A person who deserves punishment deserves it because, and only because, she has performed a culpable wrongdoing. The Principle of the Proportionality of Deserved Punishment. A person receives the punishments she deserves if and only if the punishment she receives is proportional to her culpable wrongdoing. ;My analysis proceeds as follows. In chapter two, I argue in favor of the claim that a culpable wrongdoing is the sole basis for deserved punishment. ;In chapter three, I put forth an account of the structure of a punitive desert-claim and argue that deserved punishment is not justified via the consequences that result from punishment. Having clarified the basis and structure of deserved punishment, I then set out to provide the justification for it. ;In chapter four, I argue that deserved punishment cannot be justified by an appeal to more general moral principles. My argument here rests on the criticism of different types of theory that attempt to justify deserved punishment on the grounds of more general principles. Here I criticize those theories that attempt to justify and on the grounds of: the culpable wrongdoer's choice, the culpable wrongdoer's hypothetical consent, the state's promise to punish, the demands of a justified institution, and distributive justice. ;In the last chapter I argue that and best account for our considered moral judgments about specific cases. From this, I conclude that our belief in both principles is justified. (shrink)

In "Kant on Freedom and the Appropriate Punishment," the author begins by noting that in The Metaphysics of Morals , Kant asserts that a wrongdoer should be given a punishment that is similar to his wrongdoing. He then makes two interpretive claims with regard to this assertion.First, he claims that the best way to understand this assertion in the context of other things Kant says is that the state is obligated to punish a wrongdoer in a way that imposes on (...) the wrongdoer an amount of suffering equal to what he caused and through an action that is similar in type to the wrongdoer's offense. The argument in support of this claim occurs in section II and rests on two more specific interpretive claims about Kant's theory: that state punishment should resemble the wrongdoer's acts and should involve the same level of suffering as was involved in the original wrongdoing and that punishment in accordance with these constraints is an obligatory duty.Second, the author claims that on Kant's theory this principle of appropriate punishment is justified because it restores equality in the distribution of freedom for members of the state. The argument in support of this claim occurs in section III. The argument rests in part on Kant's justification of the state and coercion in terms of the value of equalized freedom. By applying this same justification to Kant's principle of appropriate punishment, the author claims to be able to account for the principle as well as to relate the principle to Kant's political theory. Der vorliegende Beitrag beginnt mit der Feststellung, daß Kant in der Metaphysik der Sitten geltend macht, ein Übeltäter solle eine Bestrafung erleiden, die mit seiner Tat vergleichbar ist. Im Hinblick auf diese Forderung Kants werden zwei Thesen aufgestellt.Erstens wird behauptet, die genannte Forderung sei vor dem Hintergrund sonstiger Äußerungen Kants am besten dahingehend zu verstehen, daß der Staat verpflichtet sei, einen Übeltäter in einer Weise zu bestrafen, die diesem ein Maß von Leid zufügt, das dem von ihm selbst verursachten gleichkommt. Geschehen müsse dies durch eine Handlung, die in ihrer Art dem vom Übeltäter begangenen Verbrechen entspricht. Die Begründung dieser These erfolgt in Abschnitt II und stützt sich wiederum auf zwei mehr in die Einzelheiten gehende Thesen zu Kants Theorie: Staatliche Bestrafung sollte den Handlungen des Übeltäters ähneln und Leid in einer Größenordnung mit sich bringen, wie es auch die ursprüngliche Tat zur Folge hatte. Bestrafung in Übereinstimmung mit diesen Bedingungen ist eine Pflicht.Zweitens wird die Auffassung vertreten, dieses Prinzip angemessenen Strafens sei im Rahmen der Theorie Kants gerechtfertigt, weil es für die Mitglieder des Staates die Gleicheit in bezug auf die Verteilung der Freiheit wiederherstelle. Die Begründung dieser These findet sich in Abschnitt III und beruht zum Teil auf Kants Rechtfertigung von Staat und Zwang durch den Verweis auf den Wert gleichmäßig verteilter Freiheit. Die Übernahme eben dieser Rechtfertigung auch für Kants Theorie angemessenen Strafens soll sowohl dazu dienen, das Prinzip selbst zu begründen, als auch dazu, es in Kants politische Theorie einzuordnen. (shrink)

A particular amount of punishment is justified if and only if that amount of punishment is deserved and the desert claim is not overridden. In the case of some multiple murderers or people who perform serious violent acts in addition to murder, the deserved punishment must involve torture. I argue that this legitimate desert claim is not overridden by objections based on notions of brutality and inhumanity, the Kantian concern that persons be treated as ends, the intuitive distaste (...) that many persons have for torture, the negative consequences of institutionalized torture, the concern for bias in the imposition of punishment, and the need for accuracy in measuring harms. (shrink)

In Rights Forfeiture and Punishment, Christopher Heath Wellman argues that those who seek to defend the moral permissibility of punishment should shift their focus from general justifying aims to moral side constraints. On Wellman's view, punishment is permissible just in case the wrongdoer has forfeited her right against punishment.

Joseph Raz argues that legal authority includes a claim by the law to replace subjects’ contrary reasons. I reply that this cannot be squared with the existence of choice-of-evils defenses to criminal prosecutions, nor with the view that the law has gaps (which Raz shares). If the function of authority is to get individuals to comply better with reason than they would do if left to their own devices, it would not make sense for law to claim both (...) to pre-empt our contrary reasons and to leave open spaces or catch-all exceptions which we must use our own devices to fill. (shrink)

The forfeiture thesis is posed as an independent thesis in moral philosophy according to which agents forfeit (or lose) rights if they perform certain act-types. According to many, this thesis plays a crucial role in the justification of (legal) punishment. In this paper, I argue that the forfeiture thesis is unnecessary – we can simply dismiss it without any substantive loss. Echoing an aspect of the specificationist approach to rights, the reason is that we may replace the (...) class='Hi'>forfeiture thesis with an exception clause in the very content of the right not to be subjected to hard treatment: P has no right not to be subjected to hard treatment simpliciter, but a right not to be subjected to hard treatment unless P performs an act-type φ – e.g., murdering an innocent person. This alternative has substantive advantages over the forfeiture thesis, which, in turn, shows that the former cannot be reduced to the latter. (shrink)

In his Rights Forfeiture and Punishment, Christopher Heath Wellman argues that his preferred ‘strong’ version of rights forfeiture theory makes the moral rights of due process and a fair trial null and void for guilty offenders. They may still possess legal rights to due process, but these are not strong pre-institutional moral rights. I explain here why I disagree with Wellman. I also suggest that he is not entitled, by his own lights, to affirm strong forfeiture theory, (...) at least in our social world. (shrink)

Privacy rights can surely be waived. But can they also be forfeited? If so, why and under what conditions? This article takes up these questions by developing a novel theory of privacy rights forfeiture that draws inspiration from Judith Thomson’s canonical work on privacy. The paper identifies two species of forfeiture rooted in modes of negligent and reckless conduct and argues that both self-directed and other-regarding considerations play a role in grounding forfeiture. The paper also contributes to (...) the literature by proposing a new taxonomy of how Hohfeldian entitlements can be divested generally. It likewise engages at length with a recent article by Benedict Rumbold and James Wilson in which the authors criticize Thomson’s work and appear to reject the very idea of privacy forfeiture. In response, I make the case that Rumbold and Wilson’s forfeiture-free model of privacy is unconvincing on substantive moral grounds. (shrink)

In this paper, I defend the following thesis: The Problem of Symmetrical Attackers does not falsify forfeiture theory. The theory asserts that except in the case where violence is necessary to avoid a catastrophe, only those who forfeit their rights are liable for defensive violence. The problem focuses on the following sort of case. Symmetrical Attacker Case Al and Bob are doppelgangers. They both mistakenly but justifiably think that the other is about to attack him. They both respond with (...) violence that is necessary and that they think is necessary to prevent the attack. The problem is that one person forfeit his right if and only if the second does not and that it appears to be impossible for both or neither to forfeit. I argue that the forfeiture theory is not falsified by this problem because the problem is equally damaging to every plausible theory of permissible defensive violence. (shrink)

This paper clarifies and defends my account of the rights forfeiture theory of punishment in response to analyses by Michelle Madden Dempsey and Gerald Lang.

In this paper, I set out a version of the Forfeiture Theory of Punishment. Forfeiture Theory: Legal punishment is just or permissible because offenders forfeit their rights.On this account, offenders forfeit their rights because they infringed on someone’s rights. My strategy is to provide a version of the Forfeiture Theory and then to argue that it survives a number of initially intuitive seeming objections, most having their origins in the recent work of David Boonin.

In this paper, I bring into conversation with each other two views about the justification of punishment: the rights forfeiture theory and the duty view. I argue that philosophers attracted to the former should instead accept the latter.

A fresh explication of the Thomist justification of self-defense casts off the hobbles of the principle of double effects to find a more secure footing in the historicaldevelopment of subjective natural rights by medieval jurists, and a straight-forward application to the latent threat of death in childbirth posed by non-consensual pregnancy. By articulating the implicit Thomistic right to defensive abortion in terms of conditional rights bestowed in Creation as correlative to particular natural law duties, justly proportionate limits to defensive abortion (...) are identified, and balanced against the forfeited or reserved natural rights variously imputed to conceptus and embryo in non-consensual pregnancies. Subsequently, the varieties of involuntary consent are examined from a Thomist perspective with a view to their relevance in justifying recourse to a rehabilitated practice of defensive abortion when free and full consent to impregnation and childbirth is absent. (shrink)

"We believe the government’s conduct in forfeiture cases leaves much to be desired. We are certainly not the first to be ‘enormously troubled by the government’s increasing and virtually unchecked use of the civil forfeiture statutes and the disregard for due process that is buried in those statutes’" (Quoting Judge George Pratt in US v. All Assets of Statewide Auto Parts, Inc., 971 F.2d 896, 905 (2d Cir. 1992)). US v. $506,231 in U.S. Currency, 125 F.3d 442 (7th (...) Cir. 1997). (shrink)

On May 3, 1999, at the Cato sponsored conference, "Forfeiture Reform: Now, or Never?", Representative Henry Hyde announced that he was, once again, introducing Forfeiture Reform legislation to Congress. For six years, he has been trying to get legislation passed that would..

According to the self-defense view, the moral justification of punishment is derived from the moral justification of an earlier threat of punishment for an offense. According to the forfeiture view, criminals can justly be punished because they have forfeited certain rights in virtue of their crimes. The paper defends three theses about these two views. (1) The self-defense view is false because the right to threaten retaliation is not independent of the right to carry out that threat. (2) A (...) more plausible account of the right to threaten says instead that the right to retaliate is primary to the right to threaten, and that the former right in turn arises because aggressors forfeit the right not to suffer retaliation. (3) The ?fair warning thesis,? according to which just punishment must be preceded by a threat, is less plausible than first appearances suggest and is therefore no serious obstacle to the view of threats described above. (shrink)

Retributive theories of punishment argue that punishing a criminal for a crime she committed is sufficient reason for a justified and morally permissible punishment. But what about when the state gets lucky in its decision to punish? I argue that retributive theories of punishment are subject to “Gettier” style cases from epistemology. Such cases demonstrate that the state needs more than to just get lucky, and as these retributive theories of punishment stand, there is no anti-luck condition. I’ll argue that (...) Gettier-style cases demonstrate an impermissible instance of punishment, even though they meet the conditions of retributive theories of punishment. Retributive theories are, therefore, too weak. The safety condition from epistemology provides the anti-luck condition needed for permissible punishment. I argue that two forms of retributivism, rights-forfeiture and what I call standard retributivism, are both subject to Gettier-style cases. Unlike the literature on standards of proof, this paper argues that safety is a condition on punishment itself, i.e., in all nearby possible worlds, the accuser must correctly accuse the convicted for the crime they actually committed. (shrink)

Truthmaker theorists hold that propositions about higher-level entities (e.g. the proposition that there is a heap of sand) are often made true by lower-level entities (e.g. by facts about the configuration of fundamental particles). This generates a problem: what should we say about these higher-level entities? On the one hand, they must exist (since there are true propositions about them), on the other hand, it seems that they are completely superfluous and should be banished for reasons of ontological parsimony. Some (...) truthmaker theorists—most prominently David Armstrong—have tried to solve this puzzle by arguing that these entities are ‘an ontological free lunch’, i.e. real existents that are still ‘no addition of being’. This answer is prima facie attractive, but I argue in this paper that the standard approaches to truthmaking—modal theories and grounding theories—are unable to vindicate the doctrine of the ontological free lunch, and thus fail to solve the problem of higher-level entities. Fortunately, there is a non-standard account of truthmaking available, the reductive explanation account, which succeeds where the standard approaches fail. (shrink)

A person deserves a punishment if and only if he did a culpable wrongdoing and in virtue of this it is other-things-being intrinsically good that he receive punishment and if he were to receive that punishment then it would be through a non-deviant causal chain that includes the culpable wrongdoing. The wrongdoing may be institutional or pre-institutional depending on whether the moral right that the wrongdoer trespasses upon is dependent on a political institution’s goal. Desert in general, and punitive desert (...) in particular, has a ground for which the agent is blameworthy or praiseworthy and it does not itself general a duty on anyone’s behalf. Both features make desert a different type of moral entity than a moral right. In addition, the two stand in a different relation to autonomy: rights protect a sphere in which autonomy may be exercises whereas desert, including punitive desert, provides a guide to the exercise of autonomy. They thus have different connections to one of the most important value-creating features of a person. This difference between desert and moral rights indicates the need for a separate analysis of each in the context of punishment. (shrink)

Mackie drew attention to the distinct semantic and metaphysical claims made by metaethical realists, arguing that although our evaluative discourse is cognitive and objective, there are no objective evaluative facts. This distinction, however, also opens up a reverse possibility: that our evaluative discourse is antirealist, yet objective values do exist. I suggest that this seemingly farfetched possibility merits serious attention; realism seems committed to its intelligibility, and, despite appearances, it isn‘t incoherent, ineffable, inherently implausible or impossible to defend. I argue (...) that reflection on this possibility should lead us to revise our understanding of the debate between realists and antirealists. It is not only that the realist‘s semantic claim is insufficient for realism to be true, as Mackie argued; it‘s not even necessary. Robust metaethical realism is best understood as making a purely metaphysical claim. It is thus not enough for antirealists to show that our discourse is antirealist. They must directly attack the realist‘s metaphysical claim. (shrink)