Modern analytical political philosophy—characterized most notably by the work of John Rawls—has had very little to say about how punishment in particular and criminal law more generally might be justified. This is a puzzling omission, as punishment can be seen as the most serious use of coercive state power and therefore the one in greatest need of philosophical justification. With the idea of filling this gap, this chapter analyzes several major political theories of recent decades and examines how criminal justice (...) might fit into their thought. After discussing the various political theories of libertarianism, liberalism, communitarianism, Marxism, and republicanism, I offer a limited defense of one such theory, Rawls’s “political liberalism,” as offering a suitable way to approach issues of criminal justice and punishment in modern society. More broadly, my chapter invites political philosophers to speak more often and more specifically about how criminal justice fits within their theories. (shrink)

Rawls's “public reason” has not been without its critics. One criticism is that public reason is “conservative.” Public reason must rely on those beliefs that are “widely shared” among citizens. But if public reason relies on widely shared beliefs, how can it change without departing from those beliefs, thus violating public reason? In part one of my essay, I introduce the conservatism objection and describe two unsatisfactory responses to it. Part two argues that there are aspects of public reason which (...) diminish the force of the conservatism objection: first, that public reason is historical, and second, that it is mutable. (shrink)

The article argues for a conception of the justification of punishment that is compatible with a modern, politically liberal regime. Section I deals with what some have thought are the obvious soci...

La distinction entre les crimes qui impliquent un mal en soi et les crimes qui sont mauvais parce que la loi les désigne ainsi a longtemps intrigué les théoriciens. Le présent article soutient que cette distinction, bien qu’elle touche une différence réelle, est fondée sur une erreur. Cette erreur est commise tant par ceux qui considèrent le mal moral comme une condition nécessaire de la criminalité que par ceux qui croient que le simple fait de rendre une chose illégale suffit (...) à la rendre criminelle. Aucune de ces positions n’est correcte. Plutôt, ce qui rend un acte criminel, c’est le fait que cet acte implique la violation d’une loi qui a été justifiée en termes de «raison publique». (shrink)

The prohibition on “cruel and unusual” punishments, found in the Eighth Amendment to the U.S. Constitution, has long puzzled scholars. If punishments are cruel, why is that not sufficient to prohibit them? What does “unusual” add? Scholars have also disagreed on how to understand “cruel.” Should “cruel” refer only to those things that the authors of the Constitution believed were cruel, or does it extend to those things that are actually cruel? This chapter gives an overview of these debates and (...) describes the United States Supreme Court’s jurisprudence in the area. A concluding part takes a look at the possibility that some contemporary forms of punishment (e.g., imprisonment) are cruel and unusual, and even that punishment itself might be cruel and unusual. (shrink)

In his paper “Public Reason and the Justification of Punishment,” Zachary Hoskins develops and defends an idea of “public reason” that might be applicable to debates over punishment in the Western world. This short reply takes issue with some of Hoskins’ conclusions (while agreeing with many of his premises), and suggests that contra Hoskins, many versions of retribution are not compatible with the ideal of public reason as Rawls articulated it. Instead, debates over criminal justice and punishment should properly revolve (...) around the goods of public safety and harm reduction—rather than around any of the supposed metaphysical goods achieved by retributive punishment. (shrink)

This volume is a collection of twelve new essays, authored by leading philosophers and legal theorists, examining the central conceptual and normative questions underlying our institutions of criminal law.

Death penalty debates appear to be intractable because what is obvious to one side is just as obviously not the case to the other. One side finds it unconscionable that a murderer can still be walk...