This is a presentation of the utilitarian approach to punishment. It is meant for students. The first section discusses Bentham's psychological hedonism. The second briefly criticizes it. The third section explains abstractly how utilitarianism would determine of the right amount of punishment. The fourth section applies the theory to some cases, and brings out how utilitarianism could favor punishments more or less severe than the lex talionis.
If one can judge a society by how it treats its prisoners, one can surely judge a society by how it treats cognitively- and learning-impaired children. In the United States children with physical and cognitive impairments are subjected to higher rates of corporal punishment than are non-disabled children. Children with disabilities make up just over 13% of the student population in the U.S. yet make up over 18% of those children who receive corporal punishment. Autistic children are among (...) the most likely to receive corporal punishment. -/- Although they may deny or redescribe particular instances of corporal punishment or their use of restraints, educators defend such actions as legitimate punishment. In this paper, I assess the logic underlying the use of restraints and corporal punishment on autistic children by educators. The rationalizations for the corporal punishment or restraint of autistics stems from the educator’s desire to control the autistic children so as to end typical autistic behaviors such as rocking, repetitive verbalizations, or “flapping” but also the autistic child’s non-affective responses such as not appearing to feel remorse or shame or the absence of a verbal acknowledgement of remorse or shame. The educators assume that the autistic’s failure to exhibit the desired responses is evidence of the autistic’s moral incorrigibility and is, therefore, evidence of the appropriateness of corporal punishment. But this assumption of the incorrigibility of the autistic child is questionable. -/- Indeed accepting this incorrigibility assumption reveals two important problems. First, instructors using physical punishment on autistic children do not understand autism. Second, they are not working with a tenable conception of punishment. Any action undertaken to induce socially acceptable behaviors (whether it be the end of autistic acts or responses such as remorse) is to fail to understand what the legitimate punishment of children is about. (shrink)
The article analyses the necessary conditions an argument for popular punishment would need to meet, and argues that it faces the challenge of a dilemma of reasonableness: either popular views on punishment are unreasonable, in which case they should carry no weight, or they are reasonable, in which case the reasons that support them, not the views, should carry weight. It proceeds to present and critically discuss three potential solutions to the dilemma, arguing that only an argument for (...) the beneficial effects of coherence between popular views and penal policy is persuasive, but that it makes popular punishment less important than proponents claim, and offers a justification proponents will find it difficult to advance. (shrink)
While retributivism provides one of the main sources of justification for punishment within the criminal justice system, there are good philosophical and practical reasons for rejecting it. One such reason is that it is unclear that agents truly deserve to suffer for the wrongs they have done in the sense required by retributivism. In Section 1 of this paper, I explore the retributivist justification of punishment and explain why it is inconsistent with free will skepticism. In Section 2, (...) I then argue that even if one is not convinced by the arguments for free will skepticism, there remains a strong epistemic argument against causing harm on retributivist grounds that undermines both libertarian and compatibilist attempts to justify it. I maintain that this argument provides sufficient reason for rejecting the retributive justification of legal punishment. I conclude in Section 3 by briefly sketching my public health-quarantine model, a non-retributive alternative for addressing criminal behavior that draws on the public health framework and prioritizes prevention and social justice [12-15]. I argue that the model is not only consistent with free will skepticism and the epistemic argument against retributivism, it also provides the most justified, humane, and effective way of dealing with criminal behavior. (shrink)
Strong Reciprocity theorists claim that cooperation in social dilemma games can be sustained by costly punishment mechanisms that eliminate incentives to free ride, even in one-shot and finitely repeated games. There is little doubt that costly punishment raises cooperation in laboratory conditions. Its efficacy in the field however is controversial. I distinguish two interpretations of experimental results, and show that the wide interpretation endorsed by Strong Reciprocity theorists is unsupported by ethnographic evidence on decentralised punishment and by (...) historical evidence on common pool institutions. The institutions that spontaneously evolve to solve dilemmas of cooperation typically exploit low-cost mechanisms, turning finite games into indefinitely repeated ones and eliminating the cost of sanctioning. (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)
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)
Perhaps no one has written more extensively, more deeply, and more insightfully about determinism and freedom than Ted Honderich. His influence and legacy with regard to the problem of free will—or the determinism problem, as he prefers to frame it—looms large. In these comments I would like to focus on three main aspects of Honderich ’s work: his defense of determinism and its consequences for origination and moral responsibility; his concern that the truth of determinism threatens and restricts, but does (...) not eliminate, our life-hopes; and his attack on the traditional justifications for punishment. In many ways, I see my own defense of free will skepticism as the natural successor to Honderich ’s work. There are, however, some small differences between us. My goal in this paper is to clarify our areas of agreement and disagreement and to acknowledge my enormous debt to Ted. If I can also move him toward my own more optimistic brand of free will skepticism that would be great too. (shrink)
Christopher Bennett presents a theory of punishment grounded in the practice of apology, and in particular in reactions such as feeling sorry and making amends. He argues that offenders have a 'right to be punished' - that it is part of taking an offender seriously as a member of a normatively demanding relationship that she is subject to retributive attitudes when she violates the demands of that relationship. However, while he claims that punishment and the retributive attitudes are (...) the necessary expression of moral condemnation, his account of these reactions has more in common with restorative justice than traditional retributivism. He argues that the most appropriate way to react to crime is to require the offender to make proportionate amends. His book is a rich and intriguing contribution to the debate over punishment and restorative justice. (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.
Many believe that a citizen who engages in civil disobedience is not exempt from the sanctions that apply to standard law-breaking conduct. Since he is responsible for a deliberate breach of the law, he is also liable to punishment. Focusing on a conception of responsibility as answerability, I argue that a civil disobedient is responsible (i.e. answerable) to his fellows for the charges of wrongdoing, yet he is not liable to punishment merely for breaching the law. To support (...) this claim, I defend an account of political obligation framed in terms of respect for (rather than mere obedience to) the law, and argue that the mere illegality of civil disobedience does not suffice to establish wrongdoing. I then discuss and reject three objections to my argument. (shrink)
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)
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)
This paper makes two essential claims about the nature of shame and shame punishment. I argue that, if we properly understand the nature of shame, that it is sometimes justifiable to shame others in the context of a pluralistic multicultural society. I begin by assessing the accounts of shame provided by Cheshire Calhoun (2004) and Julien Deonna, Raffaele Rodogno, & Fabrice Teroni (2012). I argue that both views have problems. I defend a theory of shame and embarrassment that connects (...) both emotions to “whole-self” properties. Shame and embarrassment, I claim, are products of the same underlying emotion. I distinguish between moralized and nonmoralized shame in order to show when, and how, moral and non-moral shame may be justly deployed. Shame is appropriate, I argue, if and only if it targets malleable moral or non-moral normative imperfections of a person’s ‘whole-self.’ Shame is unjustifiable when it targets durable aspects of a person’s “whole-self.” I conclude by distinguishing shame punishments from guilt punishments and show that my account can explain why it is wrong to shame individuals on account of their race, sex, gender, or body while permitting us to sometimes levy shame and shame punishment against others, even those otherwise immune to moral reasons. (shrink)
In this essay I develop and defend a theory of state punishment within a wider conception of political legitimacy. While many moral theories of punishment focus on what is deserved by criminals, I theorize punishment within the specific context of the state's relationship to its citizens. Central to my account is Rawls's “liberal principle of legitimacy,” which requires that all state coercion be justifiable to all citizens. I extend this idea to the justification of political coercion to (...) criminals qua citizens. I argue that the liberal principle of legitimacy implicitly requires states to respect the basic political rights of those who are guilty of committing crimes, thus prohibiting capital punishment. (shrink)
Philosophers have focused on why privacy is of value to innocent people with nothing to hide. I argue that for people who do have something to hide, such as a past crime, or bad behavior in a public place, informational privacy can be important for avoiding undeserved or disproportionate non-legal punishment. Against the objection that one cannot expect privacy in public facts, I argue that I might have a legitimate privacy interest in public facts that are not readily accessible, (...) or in details of a public fact that implicate my dignity, or in not having a public fact memorialized and spread to more people than I willingly exposed myself to. (shrink)
One of the many arguments against capital punishment is that execution is irrevocable. At its most simple, the argument has three premises. First, legal institutions should abolish penalties that do not admit correction of error, unless there are no alternative penalties. Second, irrevocable penalties are those that do not admit of correction. Third, execution is irrevocable. It follows that capital punishment should be abolished. This paper argues for the third premise. One might think that the truth of this (...) premise is self-evident. But in his paper “Is the Death Penalty Irrevocable?” Mike Davis argues that it is false: the death penalty is not irrevocable. While Davis’ argument is itself somewhat compelling, it receives additional support from work in the metaphysics of death, specifically the literature on posthumous harm. Strengthened in this way, the argument deserves careful consideration. I begin with a quick sketch of Davis’ argument, then show how the Pitcher-Feinberg theory of posthumous harm enables a more robust argument against the irrevocability of capital punishment, defending their theory of harm against standard objections in the literature. Having established the coherency of the robust argument, I conclude that it nevertheless fails to make the case against irrevocability. This is because it ignores the full set of practical requirements incumbent on legal institutions that wrongly punish someone. (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)
In Free Will, Agency, and Meaning in Life, Derk Pereboom proposes an optimistic model of life that follows on the rejection of both libertarian and compatibilist beliefs in free will, moral responsibility, and desert. I criticize his views, focusing on punishment. Pereboom responds to my earlier argument that hard determinism must seek to revise the practice of punishment in the direction of funishment, whereby the incarcerated are very generously compensated for the deprivations of incarceration. I claimed that funishment (...) is a practical reductio: of hard determinism. Pereboom replies, but I claim that he misses a key component of my reductio, the idea that moving in the direction of funishment will considerably weaken the deterrence of potential criminals so that hard determinism becomes self-defeating in practice. Beyond the challenge of funishment, I raise various other difficulties with Pereboom’s model, concerning its deeply unintuitive implications, the harm it does to the motivation of potential criminals, its weakness in resisting utilitarian-like dangers, and more. Our conclusions should lead to a re-evaluation of the compatibilist interpretation of moral life, as a richer, more plausible, and safer interpretation than hard determinism. This needs to be combined with a true hard determinist acknowledgment of the deep injustice and tragedy involved in punishment in light of the absence of libertarian free will. Such a complex view will come closer to doing justice to notions of justice, morality, and decency. (shrink)
In this paper, I propose a new self-defense theory of punishment, the rights-protection theory. By appealing to the interest theory of right, I show that what we call “the right of self-defense” is actually composed of the right to protect our basic rights. The right of self-defense is not a single, self-standing right but a group of derivative rights justified by their contribution to the protection of the core, basic rights. Thus, these rights of self-defense are both justified and (...) constrained by the basic rights they are supposed to protect. I then explain how this theory responds to a common objection. Opponents argue that, to exercise the right of self-defense, some threat must be present. However, in the context of punishment, the threat has already taken effect or is already gone. Thus, the right of self-defense becomes irrelevant when we punish an offender. I show that this objection is based on an implausibly narrow conception of self-defense. A reasonable conception would allow us to exercise our right of self-defense when there is a present definite threat, a future definite threat, or a potential threat. Thus, we may still exercise our right of self-defense in the context of punishment. (shrink)
Why is American punishment so cruel? While in continental Europe great efforts are made to guarantee that prisoners are treated humanely, in America sentences have gotten longer and rehabilitation programs have fallen by the wayside. Western Europe attempts to prepare its criminals for life after prison, whereas many American prisons today leave their inhabitants reduced and debased. In the last quarter of a century, Europe has worked to ensure that the baser human inclination toward vengeance is not reflected by (...) state policy, yet America has shown a systemic drive toward ever increasing levels of harshness in its criminal policies. Why is America so short on mercy? In this deeply researched, comparative work, James Q. Whitman reaches back to the 17th and 18th centuries to trace how and why American and European practices came to diverge. Eschewing the usual historical imprisonment narratives, Whitman focuses instead on intriguing differences in the development of punishment in the age of Western democracy. European traditions of social hierarchy and state power, so consciously rejected by the American colonies, nevertheless supported a more merciful and dignified treatment of offenders. The hierarchical class system on the continent kept alive a tradition of less-degrading "high-status" punishments that eventually became applied across the board in Europe. The distinctly American, draconian regime, on the other hand, grows, Whitman argues, out of America's longstanding distrust of state power and its peculiar, broad-brush sense of egalitarianism. Low-status punishments were evenly meted out to all offenders, regardless of class or standing. America's unrelentingly harsh treatment of trangressors--this "equal opportunity degradation"-- is, in a very real sense, the dark side of the nation's much vaunted individualism. A sobering look at the growing rift between the United States and Europe, Harsh Justice exposes the deep cultural roots of America's degrading punishment practices. (shrink)
This chapter examines how advances in nanotechnology might impact criminal sentencing. While many scholars have considered the ethical implications of emerging technologies, such as nanotechnology, few have considered their potential impact on crucial institutions such as our criminal justice system. Specifically, I will discuss the implications of two types of technological advances for criminal sentencing: advanced tracking devices enabled by nanotechnology, and nano-neuroscience, including neural implants. The key justifications for criminal punishment- including incapacitation, deterrence, rehabilitation, and retribution – apply (...) very differently to criminal sentences using these emerging technologies than they do to imprisonment. Further, use of these technologies would represent a shift away from retribution as the primary justification for criminal punishment. In addition, the possibility of nano-neural implants entails a new model of rehabilitation: namely, involuntary rehabilitation aimed at changing an offender’s character, rather than his environment. (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)
From a juridical standpoint, Kant ardently upholds the state's right to impose the death penalty in accordance with the law of retribution. At the same time, from an ethical standpoint, Kant maintains a strict proscription against suicide. The author proposes that this latter position is inconsistent with and undercuts the former. However, Kant's division between external (juridical) and internal (moral) lawgiving is an obstacle to any argument against Kant's endorsement of capital punishment based on his own disapprobation of suicide. (...) Nevertheless, Kant's basic conception of autonomy underlies both of these otherwise distinct forms of lawgiving, such that acts of suicide and capital punishment are rendered equally irrational within his overall framework. (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.
This paper attempts to establish that, and explain why, the practice of punishing offenders is in principle morally permissible. My account is a nonstandard version of the fair play view, according to which punishment 's permissibility derives from reciprocal obligations shared by members of a political community, understood as a mutually beneficial, cooperative venture. Most fair play views portray punishment as an appropriate means of removing the unfair advantage an offender gains relative to law-abiding members of the community. (...) Such views struggle, however, to provide a plausible account of this unfairly gained benefit. By contrast, on my account punishment 's permissibility follows more straightforwardly from the fair play view of political obligation: Specifically, the rule instituting punishment is itself among those rules with which members of the political community are obliged to comply. For criminal offenders, compliance requires submitting to the prospect of punishment. (shrink)
This book aims to answer the question of why, and by what right, some people punish others. With a groundbreaking new theory, Matravers argues that the justification of punishment must be embedded in a larger political and moral theory. He also uses the problem of punishment to undermine contemporary accounts of justice.
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 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.
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)
Duff offered an argument for the conclusion that just or legitimate punishment of socially deprived offenders in our unjust society is impossible. One of the claims in his argument is that our courts have the standing to blame an offender only if our polity has the right to do so since our courts are acting as the representatives of, or to use the exact phrases by Duff, “in the name of”, or “on behalf of”, the whole polity. In this (...) paper I will challenge that claim. I will argue that the courts can be seen as acting, not on behalf of the whole polity, but only on behalf of a subset of its citizens, namely, the just citizens (i.e. the citizens who cannot be seen to have wronged the deprived offenders). (shrink)
This chapter has two goals. First, I will present an interpretation of Kant’s mature account of punishment, which includes a strong commitment to retributivism. Second, I will sketch a non-retributive, “ideal abolitionist” alternative, which appeals to a version of original position deliberation in which we choose the principles of punishment on the assumption that we are as likely to end up among the punished as we are to end up among those protected by the institution of punishment. (...) This is radical relative to Kant’s mature theory of punishment, but arguably it conforms better to the spirit of Kant’s first Critique remarks on imputation and punishment than his mature theory does. (shrink)
According to legal expressivism, neither crime nor punishment consists merely in intentionally imposing some kind of harm on another. Crime and punishment also have an expressive aspect. They are what they are in part because they enact attitudes toward others—in the case of crime, some kind of disrespect, at least, and in the case of punishment, society’s condemnation or reprobation. Punishment is justified, at least in part, because (and when) it uniquely expresses fitting condemnation or other (...) retributive attitude. What makes retributive attitudes fitting is that they protect the victim’s status as inviolable. Hate or bias crimes dramatize the expressive aspect of crime, as they are often designed to send a message to the victim’s group and society at large. Treating the enactment of contempt and denigration toward a historically underprivileged group as an aggravating factor in sentencing may be an appropriate way to counter this message, as it reaffirms and indeed realizes the fundamental equality and inviolability of all members of a democratic community. (shrink)
Does communicative retributivism necessarily negate capital punishment? My answer is no. I argue that there is a place, though a very limited and unsettled one, for capital punishment within the theoretical vision of communicative retributivism. The death penalty, when reserved for extravagantly evil murderers for the most heinous crimes, is justifiable by communicative retributive ideals. I argue that punishment as censure is a response to the preceding message sent by the offender through his criminal act. The gravity (...) of punishment should be commensurate to the preceding criminal message, so that the offender can face up to the nature and significance of his crime. All murders are not the same. To measure up to the most evil and humanity-degrading murderous message, capital punishment should be the counter-message. Next, I argue that capital punishment does not necessarily violate human dignity. The death penalty and torture may both disrupt human dignity, yet in distinct ways. The death penalty terminates life, the vessel that holds together autonomy, while torture directly assaults autonomy. Torture is never permissible as a form of punishment. But death penalty, when used only on the extravagant evildoers, is justifiable, as life is thoroughly degraded by his own evil act. Further, I argue that mercy is integral to communicative retributivists’ theory of capital punishment. (shrink)
I argue that contemporary liberal theory cannot give a general justification for the institution or practice of punishment, i.e., a justification that would hold across a broad range of reasonably realistic conditions. I examine the general justifications offered by three prominent contemporary liberal theorists and show how their justifications fail in light of the possibility of an alternative to punishment. I argue that, because of their common commitments regarding the nature of justification, these theorists have decisive reasons to (...) reject punishment in favor of a non-punitive alternative. I demonstrate the possibility of this alternative by means of a careful examination of the nature of punishment, isolating one essential characteristic—the aim to impose suffering—and showing how this characteristic need not guide enforcement. There is logical space for a forceful and coercive, yet non-punitive method of enforcement. This fact poses difficulties for many classical and contemporary justifications of punishment, but it poses particularly crippling problems for general liberal justifications. (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)
Thom Brooks criticizes utilitarian and retributive theories of punishment but argues that utilitarian and retributive goals can be incorporated into a coherent and unified theory of punitive restoration, according to which punishment is a means of reintegrating criminals into society and restoring rights. I point to some difficulties with Brooks’ criticisms of retributive and utilitarian theories, and argue that his theory of punitive restoration is not unified or coherent. I argue further that a theory attempting to capture the (...) complex set of rules and behaviors that constitute the practice of legal punishment cannot persuasively be unified and coherent: legitimate features of the practice advance goals and promote values that in some cases conflict. (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)
I argue that rights-forfeiture by itself is no path to permissibility at all (even barring special circumstances), neither in the case of self-defense nor in the case of punishment. The limiting conditions of self-defense, for instance – necessity, proportionality (or no gross disproportionality), and the subjective element – are different in the context of forfeiture than in the context of justification (and might even be absent in the former context). In particular, I argue that a culpable aggressor, unlike an (...) innocent aggressor, forfeits rights against proportionate defense, including unnecessary defense (as well as rights against the infliction of proportionate non-defensive harm). Yet, I demonstrate that this stance need not lead to the abandonment of the necessity condition of justified self-defense in the case of a culpable aggressor. Since justification and liability are not the same, there is no reason to assume that the necessity condition of justified self-defense must be explained under an appeal to the aggressor’s rights. Parallel arguments apply to the other limiting conditions of permissible self-defense as well as to the limiting conditions of permissible punishment. Accordingly, I also sketch alternative explanations of the proportionality requirement and the subjective element. All these alternative explanations appeal to a principle of precaution: instead of explaining the unjustifiability of unnecessarily harming a culpable attacker or wrongdoer by an appeal to the rights of the attacker or wrongdoer himself, one can also, and better, explain it by a requirement to take reasonable precautions against violating the rights of innocent people. (shrink)
This paper proposes a retributive argument against punishment, where punishment is understood as going beyond condemnation or censure, and requiring hard treatment. The argument sets out to show that punishment cannot be justified. The argument does not target any particular attempts to justify punishment, retributive or otherwise. Clearly, however, if it succeeds, all such attempts fail. No argument for punishment is immune from the argument against punishment proposed here. The argument does not purport to (...) be an argument only against retributive justifications of punishment, and so leave open the possibility of a sound non-retributive justification of punishment. Punishment cannot be justified, the paper argues, because it cannot be demonstrated that any punishment, no matter how minimal, is not a disproportionate retributive response to criminal wrongdoing. If we are to hold onto proportionality—that is, proportionality as setting a limit to morally permissible punishment—then punishment is morally impermissible. The argument is a retributive argument against punishment insofar as a just retributive response to wrongdoing must be proportionate to the wrongdoing. The argument, that is, is concerned with proportionality as a retributive requirement. The argument against punishment is set out on the basis of a familiar version of the ‘anchoring problem’, according to which it is the problem of determining the most severe punishment to anchor or ground the punishment scale. To meet the possible criticism that we have chosen a version of the anchoring problem particularly favourable to our argument, various alternative statements of the anchoring problem are considered. Considering such statements also provides a more rounded view of the anchoring problem. One such alternative holds that the punishment scale must be anchored not just in the most severe punishment, but in the least severe punishment as well. Other alternatives hold that it is necessary and sufficient to anchor the punishment scale in any two punishments, neither of which needs to be the most or least severe punishment. A further suggestion is that one anchoring point anywhere along the punishment scale is sufficient, because it is possible to ‘project’ from such a point, so as to determine the correlative punishments for all other crimes, and so derive a complete punishment scale. Finally, the suggestion is considered that one can approach the issue of a punishment scale ‘holistically’, denying any distinction between anchoring and derived (or ‘projected’) punishments. (shrink)
T. M. Scanlon’s contractualism is a meta-ethical theory that explains moral motivation and also provides a conception of how to carry out moral deliberation. It supports non-consequentialism – the theory that both consequences and deontological considerations are morally significant in moral deliberation. Regarding the issue of punishment, non-consequentialism allows us to take account of the need for deterrence as well as principles of fairness, justice, and even desert. Moreover, Scanlonian contractualism accounts for permissibility in terms of justifiability: An act (...) is permissible if and only if it can be justified to everyone affected by it. This contractualist thesis explains why it is always impermissible to frame an innocent person, why vicarious punishment is impermissible, and why there has to be a cap on sentences. Contractualism therefore allows us to take deterrence as a goal of punishment without the excess of utilitarianism. This paper further argue that the resulting view is superior to pure retributivism. Finally, it shows why legal excuses and mitigation can be justified in terms of the notion of negative desert. (For access to this paper: http://www.tandfonline.com/eprint/sJ2JBVXkztyFMGmxS7tS/full ) . (shrink)
One account of forgiveness claims that to forgive is to forbear punishment. Call this the Punishment-Forbearance Account of forgiveness. In this paper I argue that forbearing punishment is neither necessary nor sufficient for forgiveness.
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.
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)
Derek Parfit has recently defended the view that no one can ever deserve to suffer. Were this view correct, its implications for the thorny problem of the justification of punishment would be extraordinary: age-old debates between consequentialists and retributivists would simply vanish, as punishment would only—and simply—be justifiable along Benthamite utilitarian lines. I here suggest that Parfit’s view is linked to uncharacteristically weak arguments, and that it ought to be rejected.
In this chapter I use virtue theory to critique certain contemporary punishment practices. From the perspective of virtue theory, respect for rational agency indicates a respect for choice-making as the process by which we form dispositions which in turn give rise to further choices and action. To be a moral agent one must be able to act such that his or her actions deserve praise or blame; virtue theory thus demands that moral agents engage in rational choice-making as a (...) means to develop and exercise the character traits from which culpable action issues. With respect to criminal offenders, virtue theory indicates the state is obligated to recognize offenders’ right to form their own moral character via rational choice-making, even while under state supervision. I will argue below that punishment practices should limit choice-making only to the extent necessary to achieve the functions of punishment : whenever possible, punishment should preserve opportunities for the rational exercise of character and development of virtue. This means that even within a prison setting incarcerated offenders should be able to make some choices about their daily lives. Offenders should also be offered opportunities to develop virtuous traits through rehabilitative programming such as drug addiction treatment, educational programming, and job training. I will also argue that two contemporary punishment practices unjustly undermine an offender’s moral agency. The first is the overuse of isolation sanctions, which very severely limits offender choice-making. The second is chemical castration, which results in limiting an offender’s capacity to develop his character within a specific realm of choice-making. I conclude that these two punishments violate offenders’ moral agency, and that this violation cannot be justified by appeal to the aims of incapacitation, deterrence, retribution, and rehabilitation. (shrink)
This article argues that even if we grant that murderers may deserve death in principle, retributivists should still oppose capital punishment. The reason? Our inability to know with certainty whether or not individuals possess the necessary level of desert. In large part due to advances in science, we can only be sure that no matter how well the trial is administered or how many appeals are allowed or how many years we let elapse, we will continue to execute innocent (...) persons for as long as we legalize capital punishment. Thus, on grounds of desert, this article argues that retributivists should oppose capital punishment. (shrink)
Most readers believe that it is difficult, verging on the impossible, to extract concrete prescriptions from the ethics of Emmanuel Levinas. Although this view is largely correct, Levinas’ philosophy can, with some assistance, generate specific duties on the part of legal actors. In this paper, I argue that the fundamental premises of Levinas’ theory of justice can be used to construct a prohibition against capital punishment. After analyzing Levinas’ concepts of justice, responsibility, and interruption, I turn toward his scattered (...) remarks on legal institutions, arguing that they enable a sense of interruption specific to the legal domain. It is here that we find the conceptual resources most important to my Levinasian abolition. I argue that the interruption of legal justice by responsibility implies what I call the principle of revisability. The principle of revisability states a necessary condition of just legal institutions: To be just, legal institutions must ensure the possibility of revising any and all of their rules, principles, and judgments. From this, the argument against capital punishment easily follows. Execution is a legal act, perhaps the only legal act, that cannot be undone. An application of the principle of revisability to this fact leads to the conclusion that legal institutions cannot justly impose capital punishment. After defending these points at length, I conclude with some observations on the consequences of the principle of revisability for law more generally. (shrink)
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)