The problem of moral compliance is the problem of explaining how moral norms are sustained over extented stretches of time despite the existence of selfish evolutionary incentives that favor their violation. There are, broadly speaking, two kinds of solutions that have been offered to the problem of moral compliance, the reciprocity-based account and the punishment-based account. In this paper, I argue that though the reciprocity-based account has been widely endorsed by evolutionary theorists, the account is in fact deeply implausible. (...) I provide three arguments that suggest that moral norms are sustained by punishment, not reciprocity. But in addition to solving the problem of moral compliance, the punishment-based account provides an additional important theoretical dividend. It points the way for how theorists might build an evolutionary account of a feature of human groups that has long fascinated and troubled social scientists and moral philosophers – the existence of moral diversity. (shrink)
The idea that victims of social injustice who commit crimes ought not to be subject to punishment has attracted serious attention in recent legal and political philosophy. R. A. Duff has argued, for example, a states that perpetrates social injustice lacks the standing to punish victims of such injustice who commit crimes. A crucial premiss in his argument concerns the fact that when courts in liberal society mete out legitimate criminal punishments, they are conceived as acting in the name (...) of all citizens—on behalf of the whole political community. Resisting this premiss, Peter Chau has suggested that courts ought to be conceived as acting only in the name of “just citizens”: citizens who cannot be plausibly seen as having contributed to distributive injustice. When conceived in this way, Chau argues, courts can no longer plausibly be regarded as lacking standing to punish. This article uses the debate between Duff and Chau to explain why the question of whether to punish socially deprived offenders can only be answered adequately when connected to broader concerns of democratic theory. Specifically, it argues that Chau’s proposal is not available within the context of the kind of political community upon which (Duff rightly believes) a system of liberal criminal law depends for its justification and maintenance: a community in which citizens see the law as embodying shared norms whose specific demands they disagree about. State officials are morally permitted to see themselves as acting on behalf of a subset of the citizenry, I argue, only in circumstances of democratic crisis : circumstances in which a moral community can no longer be plausibly said to exist. (shrink)
Should those who get dirty hands be punished? There is strong disagreement among even those who support the existence of such scenarios. The problem arises because the paradoxical nature of dirty hands - doing wrong to do right - renders the standard normative justifications for punishment unfit for purpose. The Consequentialist, Retributivist and Communicative approaches cannot accommodate the idea that an action can be right, all things considered, but nevertheless also a categorical wrong. This paper argues that punishment (...) is indeed appropriate for those who dirty their hands and that there are three normative justifications that can be used to support this claim. These are the justifications from ‘Catharsis’, ‘Recognition of Evil Suffered’ and ‘Causal Responsibility’. Together they provide the sui generis justifications for punishing dirty hands. (shrink)
Many philosophers have claimed that the folk endorse moral universalism. Some have taken the folk view to support moral universalism; others have taken the folk view to reflect a deep confusion. And while some empirical evidence supports the claim that the folk endorse moral universalism, this work has uncovered intra-domain differences in folk judgments of moral universalism. In light of all this, our question is: why do the folk endorse moral universalism? Our hypothesis is that folk judgments of moral universalism (...) are generated in part by a desire to punish. We present evidence supporting this across three studies. On the basis of this, we argue for a debunking explanation of folk judgments of moral universalism. Our results not only further our understanding of the psychological processes underpinning folk judgments of moral universalism. They also bear on philosophical discussions of folk meta-ethics. (shrink)
The reform of offenders is often said to be one of the morally legitimate aims of punishment. After briefly surveying the history of reformist thinking I examine the ‘quasi-reform’ theories, as I call them, of H. Morris, J. Hampton and A. Duff. I explain how they conceive of reform, and what role they take it to have in the criminal justice system. I then focus critically on one feature of their conception of reform, namely, the claim that a reformed (...) offender will obey the relevant laws for moral reasons. I argue on consequentialist grounds that this requirement is objectionable. Consequentialism has always accepted reform as one legitimate goal of punishment, but it will not accept the narrowly moral conception of it that we find in the quasi-reform theorists. I situate my criticism within criminal law theory, but I also consider the claim in moral theory that acting from moral motives has intrinsic value. (shrink)
This study examines whether penalties issued to Chinese listed companies by securities regulators for violations of corporate law affect the cost of debt, and the moderating role of corporate social responsibility fulfillment on this relationship. Our sample consists of firms listed on Shanghai and Shenzhen stock exchanges from 2011 to 2017 and the data are collected from the announcements of China Securities Regulatory Commission. The findings are as follows: punishment announcements by regulatory authorities increase the cost of debt; and (...) the effect of punishment announcements on the cost of debt is partially offset by prior CSR performance. These findings are shown to be robust. The reputation insurance effect of CSR is more pronounced in state-owned enterprises and in an institutional environment with low marketization, a weak legal environment, and low information transparency. The findings support the reputation insurance hypothesis of CSR and employ the cost of debt as a governance mechanism. (shrink)
This classic collection of essays, first published in 1968, represents H.L.A. Hart's landmark contribution to the philosophy of criminal responsibility and punishment. Unavailable for ten years, this new edition reproduces the original text, adding a new critical introduction by John Gardner, a leading contemporary criminal law theorist.
The purpose of this paper is to provide a justification of punishment which can be endorsed by free will skeptics, and which can also be defended against the "using persons as mere means" objection. Free will skeptics must reject retributivism, that is, the view that punishment is just because criminals deserve to suffer based on their actions. Retributivists often claim that theirs is the only justification on which punishment is constrained by desert, and suppose that non-retributive justifications (...) must therefore endorse treating the people punished as mere means to social ends. Retributivists typically presuppose a monolithic conception of desert: they assume that action-based desert is the only kind of desert. But there are also personhood-based desert claims, that is, desert claims which depend not on facts about our actions, but instead on the more abstract fact that we are persons. Since personhood-based desert claims do not depend on facts about our actions, they do not depend on moral responsibility, so free will skeptics can appeal to them just as well as retributivists. What people deserve based on the mere fact of their personhood is to be treated as they would rationally consent to be treated if all they had in view was the mere fact of their personhood. We can work out the implications of this view for punishment by developing a hypothetical consent justification in which we select principles of punishment in the Rawlsian original position, so long as we are careful not to smuggle in the retributivist assumption that it is under our control whether we end up as criminals or as law-abiding citizens once we raise the veil of ignorance. (shrink)
Punishment is a topic of increasing importance for citizens and policy makers. Why should we punish criminals? Which theory of punishment is most compelling? Is the death penalty ever justified? These questions and many others are addressed in this highly engaging guide. Punishment is a critical introduction to the philosophy of punishment offering a new and refreshing approach that will benefit readers of all backgrounds and interests. This is the first critical guide to examine all leading (...) contemporary theories of punishment, including the communicative theory of punishment, restorative justice, and the unified theory of punishment. There are also several case studies examined in detail including capital punishment, juvenile offending, and domestic abuse. -/- Punishment highlights the problems and prospects of different approaches in order to argue for a more pluralistic and compelling perspective that is novel and groundbreaking. -/- Introduction; Retributivism; Deterrence; Rehabilitation; Restorative Justice; Rawls, Hart, and "mixed" theories; Expressivism; The Unified Theory; Capital Punishment; Juvenile Offending; Domestic Abuse; Sexual Crimes; Conclusion; Index. (shrink)
The punishment of criminals is a topic of long-standing philosophical interest since the ancient Greeks. This interest has focused on several considerations, including the justification of punishment, who should be permitted to punish, and how we might best set punishments for crimes. This entry focuses on the most important contributions in this field. The focus will be on specific theoretical approaches to punishment including both traditional theories of punishment (retributivism, deterrence, rehabilitation) and more contemporary alternatives (expressivism, (...) restorative justice, hybrid theories, unified theories) with an additional section on capital punishment, perhaps the particular form of punishment that has received the most sustained philosophical attention. These theories of punishment address two important questions: first, who should be permitted to punish and, secondly, who should be permitted to be punished. These questions then concern the justification of punishment and its distribution. While the majority today often identifies their theories as retributivist, there is a great diversity of theories defended. This entry will highlight the leading work for each view. (shrink)
The purpose of this paper is twofold. First, I defend and expand the Fortificationist Theory of Punishment. Second, I argue that this theory implies that non-consensual neurointerventions – interventions that act directly on one’s brain – are permissible. According to the FTP, punishment is justified as a way of ensuring that citizens who infringe their duty to demonstrate the reliability of their moral powers will thereafter be able to comply with it. I claim that the FTP ought to (...) be expanded to include citizens’ interest in developing their moral powers. Thus, states must ensure that their citizens develop their moral reliability, not only because they must enforce their citizens’ compliance with certain duties, but also because states have the duty to maintain the conditions for stability and satisfy their citizens’ interest in developing their moral powers. According to this account of the FTP, if neurointerventions are the only or best way of ensuring that offenders can discharge their fortificational duties, states have strong reasons to provide these interventions. (shrink)
It has recently been suggested that the fact that punishment involves an intention to cause suffering undermines expressive justifications of punishment. I argue that while punishment must involve harsh treatment, harsh treatment need not involve an intention to cause suffering. Expressivists should adopt this conception of harsh treatment.
The question "What can justify criminal punishment ?" becomes especially insistent at times, like our own, of penal crisis, when serious doubts are raised not only about the justice or efficacy of particular modes of punishment, but about the very legitimacy of the whole penal system. Recent theorizing about punishment offers a variety of answers to that question-answers that try to make plausible sense of the idea that punishment is justified as being deserved for past crimes; (...) answers that try to identify some beneficial consequences in terms of which punishment might be justified; as well as abolitionist answers telling us that we should seek to abolish, rather than to justify, criminal punishment. This book begins with a critical survey of recent trends in penal theory, but goes on to develop an original account (based on Duff's earlier Trials and Punishments) of criminal punishment as a mode of moral communication, aimed at inducing repentance, reform, and reconciliation through reparation-an account that undercuts the traditional controversies between consequentialist and retributivist penal theories, and that shows how abolitionist concerns can properly be met by a system of communicative punishments. In developing this account, Duff articulates the "liberal communitarian" conception of political society (and of the role of the criminal law) on which it depends; he discusses the meaning and role of different modes of punishment, showing how they can constitute appropriate modes of moral communication between political community and its citizens; and he identifies the essential preconditions for the justice of punishment as thus conceived-preconditions whose non-satisfaction makes our own system of criminal punishment morally problematic. Punishment, Communication, and Community offers no easy answers, but provides a rich and ambitious ideal of what criminal punishment could be-an ideal of what criminal punishment cold be-and ideal that challenges existing penal theories as well as our existing penal theories as well as our existing penal practices. (shrink)
In this paper, I discuss a distinctively non-paradigmatic instance of punishment: the punishment of non-citizens. I shall argue that the punishment of non-citizens presents considerable difficulties for one currently popular account of criminal punishment: Antony Duff’s communicative expressive theory of punishment. Duff presents his theory explicitly as an account of the punishment of citizens - and as I shall argue, this is not merely an incidental feature of his account. However, it is plausible that (...) a general account of the criminal law of the kind of idealized state that Duff focusses on will need to say something about how that law deals with non-citizens. In particular, I claim, it will need to provide a justification for punishing them. Because Duff's account says nothing about the punishment of non-citizens, it cannot do so. Furthermore, although Duff's more recent suggestion that non-citizens should be thought of as being guests in the state on whose territory they are present may provide for an account of their criminalization, it cannot easily be extended into an account that provides a justification for their punishment. (shrink)
The proposal that the criminal justice system should focus on rehabilitation – rather than retribution, deterrence, or expressive denunciation – is among the least popular ideas in legal philosophy. Foremost among rehabilitation’s alleged weaknesses is that it views criminals as blameless patients to be treated, rather than culpable moral agents to be held accountable. This article offers a new interpretation of the rehabilitative approach that is immune to this objection and that furnishes the moral foundation that this approach has lacked. (...) The view rests on the principle that moral agents owe it to one another to maintain the dependability of their moral capacities. Agents who culpably commit criminal wrongs, however, betray an unacceptable degree of moral unreliability. Punishment, on this theory, consists in the enforcement of the duties that offenders have to reduce their own likelihood of recidivism. (shrink)
Part of the Studies in Crime and Public Policy series, this book, written by one of the top philosophers of punishment, examines the main trends in penal theorizing over the past three decades. Duff asks what can justify criminal punishment, and then explores the legitimacy of actual practices by examining what would count as adequate justification for them. Duff argues that a "communicative conception of punishment," which he presents as a third way between consequentialist and retributive theories, (...) offers the most fruitful way of understanding punishment's meaning and justification. Duff addresses such questions as how much sentences should be constrained by proportionality requirements; what modalities of punishment best communicate their intended meaning; and what decisionmaking procedures he envisions. This book will appeal to criminologists, philosophers, and others interested in theories of punishment. (shrink)
Punishment -- Culpable mind -- Culpable action -- Responsibility for harm -- Liability for public welfare offences -- Justification -- Excuse -- Detention after acquittal -- The unity of the penal law.
The essays in this collection explore, from philosophical and religious perspectives, a variety of moral emotions and their relationship to punishment and condemnation or to decisions to lessen punishment or condemnation.
This article defends the fair-play theory of legal punishment against three objections. The first, the irrelevance objection, is the long-standing complaint that fair play fails to capture what it is about crimes that makes criminals deserving of punishment ; the others are the recently raised false-equivalence and lacks-integration objections. In response, I sketch an account of fair-play theory that is grounded in a conception of the political order as a meta- cooperative practice—a conception that falls somewhere between contractual (...) and communitarian conceptions—and draw on this account to show how the theory can overcome the objections. (shrink)
It is well documented that the effects of legal punishment tend to drift to the family members, friends, and larger communities of convicted offenders. Instead of conceiving of punishment drift as incidental to legal punishment, or as merely foreseen but not intended by state authorities and thus permissible, I argue that efforts ought to be undertaken to limit or ameliorate it. Failure to confine punishment drift comes perilously close to punishment of the innocent and is (...) at odds with other legal doctrines and broader penal practices that hold offenders, and offenders alone, responsible for their crimes. Numerous arguments urging tolerance of punishment drift, or more assertively defending it, are examined and found wanting. (shrink)
As philosophical and scientific arguments for free will skepticism continue to gain traction, we are likely to see a fundamental shift in the way people think about free will and moral responsibility. Such shifts raise important practical and existential concerns: What if we came to disbelieve in free will? What would this mean for our interpersonal relationships, society, morality, meaning, and the law? What would it do to our standing as human beings? Would it cause nihilism and despair as some (...) maintain or would it rather have a humanizing effect on our practices and policies, freeing us from the negative effects of belief in free will? In this chapter we consider the practical implications of free will skepticism and argue that life without free will and basic desert moral responsibility would not be as destructive as many people believe. We argue that prospects of finding meaning in life or of sustaining good interpersonal relationships, for example, would not be threatened. On treatment of criminals, we argue that although retributivism and severe punishment, such as the death penalty, would be ruled out, preventive detention and rehabilitation programs would still be justified. While we will touch on all these issues below, our focus will be primarily on this last issue. -/- We begin in section I by considering two different routes to free will skepticism. The first denies the causal efficacy of the types of willing required for free will and receives its contemporary impetus from pioneering work in neuroscience by Benjamin Libet, Daniel Wegner, and John-Dylan Haynes. The second, which is more common in the philosophical literature, does not deny the causal efficacy of the will but instead claims that whether this causal efficacy is deterministic or indeterministic, it does not achieve the level of control to count as free will by the standards of the historical debate. We argue that while there are compelling objections to the first route—e.g., Al Mele (2009), Eddy Nahmias (2002, 2011), and Neil Levy (2005)—the second route to free will skepticism remains intact. In section II we argue that free will skepticism allows for a workable morality, and, rather than negatively impacting our personal relationships and meaning in life, may well improve our well-being and our relationships to others since it would tend to eradicate an often destructive form of moral anger. In section III we argue that free will skepticism allows for adequate ways of responding to criminal behavior—in particular, incapacitation, rehabilitation, and alternation of relevant social conditions—and that these methods are both morally justified and sufficient for good social policy. We present and defend our own preferred model for dealing with dangerous criminals, an incapacitation account built on the right to self-protection analogous to the justification for quarantine (see Pereboom 2001, 2013, 2014a; Caruso 2016a), and we respond to recent objections to it by Michael Corrado and John Lemos. (shrink)
Criminal law theorists overwhelmingly agree that for some conduct to constitute punishment, it must be imposed intentionally. Some retributivists have argued that because punishment consists only of intentional inflictions, theories of punishment can ignore the merely foreseen hardships of prison, such as the mental and emotional distress inmates experience. Though such distress is foreseen, it is not intended, and so it is technically not punishment. In this essay, I explain why theories of punishment must pay (...) close attention to the unintentional burdens of punishment. In two very important contexts — punishment measurement and justification — we use the term “punishment” to capture not only intentional harsh treatment but certain unintentional harsh treatment as well. This means that the widely accepted view that punishment is an intentional infliction requires substantial caveats. It also means that any purported justification of punishment that addresses only the intentional infliction of punishment is woefully incomplete. -/- [This paper has been published under a Creative Commons Attribution-NonCommercial-ShareAlike license.]. (shrink)
Should the state punish its disadvantaged citizens who have committed crimes? Duff has recently argued that where disadvantage persists the state loses its authority to hold individuals to account and to punish for criminal wrongdoings. I here scrutinize Duff’s argument for the claim that social justice is a precondition for the legitimacy of state punishment. I sharpen an objection to Duff’s argument: with his framework, we seem unable to block the implausible conclusion that where disadvantage persists the state lacks (...) the authority to punish any citizen for any crime. I then set out an alternative line of argument in support of the claim that social deprivation can threaten the states legitimate punitive authority. I argue that a penal system must incorporate certain proportionality principles, and that these principles cannot both be met where citizens suffer from deprivation. (shrink)
Nathan Hanna has recently argued against a position I defend in a 2013 paper in this journal and in my 2016 book on punishment, namely that we can punish someone without intending to harm them. In this discussion note I explain why two alleged counterexamples to my view put forward by Hanna are not in fact counterexamples to any view I hold, produce an example which shows that, if we accept a number of Hanna’s own assumptions, punishment does (...) not require an intention to harm, and discuss whether a definition and counter-example approach is the best way to proceed in the philosophy of punishment. I conclude with a brief exegetical discussion of H.L.A Hart’s Prolegomenon to the Principles of Punishment. (shrink)
Many philosophers hold that punishment has an expressive dimension. Advocates of expressive theories have different views about what makes punishment expressive, what kinds of mental states and what kinds of claims are, or legitimately can be expressed in punishment, and to what kind of audience or recipients, if any, punishment might express whatever it expresses. I shall argue that in order to assess the plausibility of an expressivist approach to justifying punishment we need to pay (...) careful attention to whether the things which punishment is supposed to express are aimed at an audience. For the ability of any version of expressivism to withstand two important challenges, which I call the harsh treatment challenge’ and the ‘publicity challenge’ respectively. will depend on the way it answers them. The first of these challenges has received considerable discussion in the literature on expressive theories of punishment; the second considerably less. This is unfortunate. For careful consideration of the publicity challenge should lead us to favor a version of the expressive theory which has been under-discussed: the view on which punishment has an intended audience, and on which the audience is society at large, rather than—as on the most popular version of that view—the criminal. Furthermore, this view turns out to be better equipped to meet the harsh treatment challenge, and to be so precisely because of the way in which it meets the publicity challenge. (shrink)
This chapter applies insights from the expressive theory of punishment to the case of the punishment of war criminals by international tribunals. Wringe argues that although such cases are not paradigmatic cases of punishment, the denunciatory account can still cast light on them. He argues that war criminals can be seen as members of an international community for which international tribunals can act as a spokesperson. He also argues that in justifying the punishment lof war criminals (...) we should pay especial attention to the expressive function of the trial. (shrink)
This book is the first comprehensive study of the meaning and measure of enforceability. While we have long debated what restraints should govern the conduct of our social life, we have paid relatively little attention to the question of what it means to make a restraint enforceable. Focusing on the enforceability of legal rights but also addressing the enforceability of moral rights and social conventions, Mark Reiff explains how we use punishment and compensation to make restraints operative in the (...) world. After describing the various means by which restraints may be enforced, Reiff explains how the sufficiency of enforcement can be measured, and he presents a unified theory of deterrence, retribution, and compensation that shows how these aspects of enforceability are interconnected. Reiff then applies his theory of enforceability to illuminate a variety of real-world problem situations. (shrink)
In this book, David Boonin examines the problem of punishment, and particularly the problem of explaining why it is morally permissible for the state to treat those who break the law in ways that would be wrong to treat those who do not? Boonin argues that there is no satisfactory solution to this problem and that the practice of legal punishment should therefore be abolished. Providing a detailed account of the nature of punishment and the problems that (...) it generates, he offers a comprehensive and critical survey of the various solutions that have been offered to the problem and concludes by considering victim restitution as an alternative to punishment. Written in a clear and accessible style, The Problem of Punishment will be of interest to anyone looking for a critical introduction to the subject as well as to those already familiar with it. (shrink)
In the Gorgias, Socrates argues that just punishment, though painful, benefits the unjust person by removing injustice from her soul. This paper argues that Socrates thinks the true judge (i) will never use corporal punishment, because such procedures do not remove injustice from the soul; (ii) will use refutations and rebukes as punishments that reveal and focus attention on psychological disorder (= injustice); and (iii) will use confiscation, exile, and death to remove external goods that facilitate unjust action.
Philosophers have highlighted a dilemma for the criminal law. Unjust, racist policies in the United States have produced conditions in which the dispossessed are more likely to commit crime. This complicity undermines the standing of the state to blame their offenses. Nevertheless, the state has reason to punish those crimes in order to deter future offenses. Tommie Shelby proposes a way out of this dilemma. He separates the state’s right to condemn from its right to punish. I raise doubts about (...) Shelby’s proposed resolution. So long as punishment is widely and reasonably understood to condemn crime, Shelby’s proposal does not resolve the dilemma. Moreover, there is reason to think the blaming aspect of punishment plays a role in the justification of its hard treatment. I conclude by considering some other ways out of the dilemma, focusing especially on how the United States might take responsibility for its complicity. (shrink)
This chapter examines the tension between the justification and the punishment of civil disobedience, and theorists’ common solutions to it, by focusing on two central questions: first, should the state punish civil disobedience? Second, should the civil disobedient accept punishment? It presents the theoretical lay of the land on each of these questions, with particular attention to American jurisprudence on civil disobedience. The third part takes a step back to ask anew, how should we think about civil disobedience? (...) and uncovers some problematic assumptions behind the common theoretical approach to the “problem” of civil disobedience. (shrink)
Within the criminal justice system, one of the most prominent justifications for legal punishment is retributivism. The retributive justification of legal punishment maintains that wrongdoers are morally responsible for their actions and deserve to be punished in proportion to their wrongdoing. This book argues against retributivism and develops a viable alternative that is both ethically defensible and practical. Introducing six distinct reasons for rejecting retributivism, Gregg D. Caruso contends that it is unclear that agents possess the kind of (...) free will and moral responsibility needed to justify this view of punishment. While a number of alternatives to retributivism exist - including consequentialist deterrence, educational, and communicative theories - they have ethical problems of their own. Moving beyond existing theories, Caruso presents a new non-retributive approach called the public health-quarantine model. In stark contrast to retributivism, the public health-quarantine model provides a more human, holistic, and effective approach to dealing with criminal behavior. (shrink)
In the past decade, experiments on altruistic punishment have played a central role in the study of the evolution of cooperation. By showing that people are ready to incur a cost to punish cheaters and that punishment help to stabilise cooperation, these experiments have greatly contributed to the rise of group selection theory. However, despite its experimental robustness, it is not clear whether altruistic punishment really exists. Here, I review the anthropological literature and show that hunter-gatherers rarely (...) punish cheaters. Instead, they avoid dealing with them and switch to other partners. I suggest that these data are better explained by individual selection, and in particular by partner choice models, in which individuals are in competition to be recruited by cooperative partners. I discuss two apparent problems for partner choice theories: large-scale cooperation and punishments in economic games. I suggest that rather than favouring group selection theory, these two phenomena provide evidence in favour of individual selection: (1) people produce large-scale cooperation through institutions in which punishment is not altruistic but rewarded on an individual basis; (2) punishment in experimental games can be explained without altruism and is indeed often better explained by individual interests. (shrink)
Recent studies have shown that pharmacological treatment may have an impact on aggressive and impulsive behavior. Assuming that these results are correct, would it be morally acceptable to instigate violent criminals to accept pharmacological rehabilitation by offering this treatment in return for early release from prison? This paper examines three different reasons for being skeptical with regard to this sort of practice. The first reason concerns the acceptability of the treatment itself. The second reason concerns the ethical legitimacy of making (...) offers under coercive conditions. The third relates to the acceptability of the fact that those criminals who accepted the treatment would be exempted from the punishment they rightly deserved. It is argued that none of these reasons succeeds in rejecting this sort of offer. (shrink)
It is sometimes thought that the normative justification for responding to large-scale violations of human rights via the judicial appararatus of trial and punishment is undermined by the desirability of reconciliation between conflicting parties as part of the process of conflict resolution. I take there to be philosophical, as well as practical and psychological issues involved here: on some conceptions of punishment and reconciliation, the attitudes that they involve conflict with one another on rational grounds. But I shall (...) argue that there is a conception of political reconciliation available which does not involve forgiveness and this forms of reconciliation may be the best we can hope for in many conflicts. Reconciliation is nevertheless likely to require the expression of what Darrell Moellendorf has called 'political regret' and the denunciatory role aspect of punishment makes it particularly well-suited to this role. (shrink)
This essay argues that the thief, a liminal figure that haunts the boundary of political membership and the border between the law of reason and the law of beasts, drives Locke’s accounts of the foundation of the commonwealth and the right to rebellion in the Second Treatise of Government. Locke’s political theory is best read through punishment as a theory of subject formation, which relies on an unstable concept of proportionality to produce this liminal figure in order to secure (...) the member as a “stable” political subject. (shrink)
Should an adolescent offender be punished more leniently than an adult offender? Many theorists believe the answer to be in the affirmative. According to the diminished culpability model, adolescents are less mature than adults and, therefore, less responsible for their wrongdoings and should consequently be punished less harshly. This article concerns the first part of the model: the relation between immaturity and diminished responsibility. It is argued that this relation faces three normative challenges which do not allow for easy answers (...) and which are still widely ignored in the comprehensive discussion of the diminished culpability model. (shrink)
This paper objects to certain forms of punishments, such as supermax confinement, on grounds that they are inappropriately contemptuous. Building on discussions in Kant and elsewhere, I flesh out what I take to be salient features of contempt, features that make contempt especially troubling as a form of moral regard and treatment. As problematic as contempt may be in the interpersonal context, I contend that it is especially troubling when a person is treated contemptuously by her political community’s institutions -- (...) such as by certain forms of punishment. Punishment is contemptuous if it fails to respect offenders as moral persons, who as such are always capable of moral reform. Respect for offenders therefore requires, at least, that punishment not tend to undermine the prospect of offenders’ reform. I flesh out this constraint by considering various ways in which punishments may tend to undermine offenders’ reform. In particular, I discuss ways in which supermax confinement tends to violate the reform-based constraint. Finally, I address several potential objections to my account. (shrink)
Negligence is a problematic basis for being morally blamed and punished for having caused some harm, because in such cases there is no choice to cause or allow—or risk causing or allowing—such harm to occur. The standard theories as to why inadvertent risk creation can be blameworthy despite the lack of culpable choice are that in such cases there is blame for: (1) an unexercised capacity to have adverted to the risk; (2) a defect in character explaining why one did (...) not advert to the risk; (3) culpably acquiring or failing to rid oneself of these defects of character at some earlier time; (4) flawed use of those practical reasoning capacities that make one the person one is; or (5) chosen violation of per se rules about known precautions. Although each of these five theories can justify blame in some cases of negligence, none can justify blame in all cases intuitively thought to be cases of negligence, nor can any of these five theories show why inadvertent creation of an unreasonable risk, pure and simple, can be blameworthy. (shrink)
As recorded in the Analects, Kongzi (Confucius) held that using punishment to influence ordinary citizens will do little to develop a sense of shame (chi 恥) in them. This term is usually taken to refer to a sense of shame described here as “ autonomous,” understood as a predisposition to feel ashamed when one does something wrong because it seems wrong to oneself, and not because others regard it as wrong or shameful. Historically, Confucian philosophers have thought a great (...) deal about the habits and character traits necessary for someone to have a sense of shame that is truly autonomous. The article looks at their views on this matter and shows how they help to articulate the hypothesis that coercive punishments undermine or work at cross-purposes with the cultivation of an autonomous sense of shame. It then uses this analysis to explicate the proposal that governing people by cultivating a sense of shame is to be preferred to governing by threat of punishment. It concludes by weighing its merits as a view about effective governance, observing that its strength and plausibility depends on whether we take the threat of punishment to be direct or indirect. (shrink)
In this paper we explore the relationship between forgiving and punishment. We set out a number of arguments for the claim that if one forgives a wrongdoer, one should not punish her. We then argue that none of these arguments is persuasive. We conclude by reflecting on the possibility of institutional forgiveness in the criminal justice setting and on the differences between forgiveness and acts of mercy.
This book addresses the retributive and "orthodox subjectivist" theories that dominate criminal justice theory alongside recent "revisionist" and "postmodern" approaches. Norrie argues that all these approaches, together with their faults and contradictions, stem from their orientation to themes in Kantian moral philosophy. He explores an alternative relational or dialectical approach; examines the work of Ashworth, Duff, Fletcher, Moore, Smith, and Williams; and considers key doctrinal issues.
Female genital alteration is any cutting, removal or destruction of any part of the external female genitalia. Various FGA practices are common throughout the world. While most frequent in Africa and Asia, transglobal migration has brought ritual FGA to Western nations. All forms of FGA are generally considered undesirable for medical and ethical reasons when performed on minors. One ritual FGA procedure is the vulvar nick. This is a small laceration to the vulva that does not cause morphological changes. Besides (...) being performed as a primary ritual procedure it has been proposed as a substitute for more extensive forms of FGA. Measures advocated or taken to reduce the burden of FGA can be punitive or non-punitive. Even if it is unethical to perform VN, we argue that it also is unethical to attempt to suppress it through punishment. First, punishment of VN is likely to cause more harm than good overall, even to those ostensibly being protected. Second, punishment is likely to exceed legitimate retributive ends. We do not argue in favor of performing VN. Rather, we argue that non-punitive strategies such as education and harm reduction should be employed. (shrink)
This paper describes developments in punishment theory since the middle of the twentieth century. After the mid–1960s, what Stanley I. Benn called “preventive theories of punishment”—whether strictly utilitarian or more loosely consequentialist like his—entered a long and steep decline, beginning with the virtual disappearance of reform theory in the 1970s. Crowding out preventive theories were various alternatives generally (but, as I shall argue, misleadingly) categorized as “retributive”. These alternatives include both old theories (such as the education theory) resurrected (...) after many decades in philosophy’s graveyard and some new ones (such as the fairness theory). Only in the last decade or so have new vares o “consequentialism” appeared to dilute a debate among philosophers that had become almost entirely about “retributivism”. I shall describe this trend in more detail. The description will be less an update of my 1990 survey than a rethinking of it. The conclusion I draw from this rethinking is that we need to drop the utilitarian–retributivist (and nonconsequentialist–nonconsequentialist) distinction in favor of one sorting punishment theories according to whether they rely in part on empirical considerations (externalist theories) or instead rely (almost) entirely on conceptual relations (internalist theories). (shrink)
Nathan Hanna has recently addressed a claim central to my 2013 article ‘Must Punishment Be Intended to Cause Suffering’ and to the second chapter of my 2016 book An Expressive Theory of Punishment: namely, that punishment need not involve an intention to cause suffering. -/- Hanna defends what he calls the ‘Aim To Harm Requirement’ (AHR), which he formulates as follows. AHR: ‘an agent punishes a subject only if the agent intends to harm the subject’ (Hanna 2017 (...) p969). I’ll try to show in this note that Hanna’s latest attempts to defend AHR fail. I’ll start by setting out my own view, drawing attention to one significant, but perhaps understandable, misstatement of Hanna’s. I’ll then discuss two alleged counter-examples that Hanna presents to my view, and show that they both fail in their own terms. I’ll also argue that, given assumptions that Hanna is willing to make a scenario closely related to one that Hanna presents counts against AHR. I’ll then discuss how significant it would be if these counter-examples were successful. My view is that it wouldn’t matter much, and that anyone attracted to abolitionism should agree. I’ll conclude with a brief discussion of Hart, which may be of interest to enthusiasts and Hart scholars. (shrink)
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