Automated technologies and robots make decisions that cannot always be fully controlled or predicted. In addition to that, they cannot respond to punishment and blame in the ways humans do. Therefore, when automated cars harm or kill people, for example, this gives rise to concerns about responsibility-gaps and retribution-gaps. According to Sven Nyholm, however, automated cars do not pose a challenge on human responsibility, as long as humans can control them and update them. He argues that the agency exercised (...) in automated cars should be understood in terms of human–robot collaborations. This brief note focuses on the problem that arises when there are multiple people involved, but there is no obvious shared collaboration among them. Building on John Danaher’s discussion of command responsibility, it is argued that, although Nyholm might be right that autonomous cars cannot be regarded as acting on their own, independently of any human beings, worries about responsibility-gaps and retribution-gaps are still justified, because it often remains unclear how to allocate or distribute responsibility satisfactorily among the key humans involved after they have been successfully identified. (shrink)

Robotization is an increasingly pervasive feature of our lives. Robots with high degrees of autonomy may cause harm, yet in sufciently complex systems neither the robots nor the human developers may be candidates for moral blame. John Danaher has recently argued that this may lead to a retribution gap, where the human desire for retribution faces a lack of appropriate subjects for retributive blame. The potential social and moral implications of a retribution gap are considerable. I argue (...) that the retributive intuitions that feed into retribution gaps are best understood as deontological intuitions. I apply a debunking argument for deontological intuitions in order to show that retributive intuitions cannot be used to justify retributive punishment in cases of robot harm without clear candidates for blame. The fundamental moral question thus becomes what we ought to do with these retributive intuitions, given that they do not justify retribution. I draw a parallel from recent work on implicit biases to make a case for taking moral responsibility for retributive intuitions. In the same way that we can exert some form of control over our unwanted implicit biases, we can and should do so for unjustifed retributive intuitions in cases of robot harm. (shrink)

We are living through an era of increased robotisation. Some authors have already begun to explore the impact of this robotisation on legal rules and practice. In doing so, many highlight potential liability gaps that might arise through robot misbehaviour. Although these gaps are interesting and socially significant, they do not exhaust the possible gaps that might be created by increased robotisation. In this article, I make the case for one of those alternative gaps: the retribution gap. This gap (...) arises from a mismatch between the human desire for retribution and the absence of appropriate subjects of retributive blame. I argue for the potential existence of this gap in an era of increased robotisation; suggest that it is much harder to plug this gap than it is to plug those thus far explored in the literature; and then highlight three important social implications of this gap. (shrink)

This paper examines hart's model (1967) of the retributive theory. section i criticizes the model for not answering all the main questions to which a theory of punishment should be addressed, as hart alleges it does. section ii criticizes the model for its omission of the concept of desert. section iii criticizes attempts by card (1973) and by von hirsch (1976) to provide new ways of proportioning punitive severity to criminal injury. section iv discusses the idea of retribution in (...) justifying aim and criticizes the theory of fingarette (1977). the conclusion is that the new retributivists have not solved the problems inherent to older versions of the theory. (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)

Within the United States, the most prominent justification for criminal punishment is retributivism. This retributivist justification for punishment maintains that punishment of a wrongdoer is justified for the reason that she deserves something bad to happen to her just because she has knowingly done wrong—this could include pain, deprivation, or death. For the retributivist, it is the basic desert attached to the criminal’s immoral action alone that provides the justification for punishment. This means that the retributivist position is not reducible (...) to consequentialist considerations nor in justifying punishment does it appeal to wider goods such as the safety of society or the moral improvement of those being punished. A number of sentencing guidelines in the U.S. have adopted desert as their distributive principle, and it is increasingly given deference in the “purposes” section of state criminal codes, where it can be the guiding principle in the interpretation and application of the code’s provisions. Indeed, the American Law Institute recently revised the Model Penal Code so as to set desert as the official dominate principle for sentencing. And courts have identified desert as the guiding principle in a variety of contexts, as with the Supreme Court’s enthroning retributivism as the “primary justification for the death penalty.” 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 the first section, I explore the retributivist justification of punishment and explain why it is inconsistent with free will skepticism. In the second section, 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 criminal punishment. I conclude in the third section 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. 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)

Retribution is often dismissed as augmenting the initial harm done, rather than ameliorating it. This criticism rests on a crude view of retribution. In our actual practice in informal situations and in the workings of the reactive (properly called 'retributive') sentiments, retribution is true to the gravity of wrongdoing, but does aim to ameliorate it. Through wrongdoing, offenders become alienated from the moral community: their actions place their commitment to its core values in doubt. We recognize this (...) status in blaming, a withdrawal of civility and solidarity which symbolizes the moral distance wrongdoers have put between them and us. Atonement is the means by which they make themselves 'at one' again with the community. Retribution is properly understood as a cycle which recognizes disruption and alienation, but aims at reconciliation. (shrink)

Terrorism is commonly viewed as a form of war, and as a form of war, the morality of terrorism seems to turn on the usual arguments regarding the furtherance of political objectives through coercive means. The terrorist argues that his options for armed struggle are limited, and that the use of force against civilians is the only way he can advance his cause. But this argument is subject to a powerful response. There is the argument from consequences, which asserts that (...) terrorism is almost always counterproductive, even assuming the terrorist’s political objectives are legitimate. There is the argument from rights, which claims that terrorism violates the basic human rights of (at least) its civilian victims, and is therefore morally objectionable regardless of its consequences. And there is the argument from virtue, which notes that slaughtering civilians requires no skill or courage and therefore generates no honor or glory, making the terrorist not a virtuous warrior but a vicious one. But terrorism is not only a means of political coercion. It is also, in the view of many terrorists, a means of retribution. It is a means of exacting punishment on a political community the terrorist believes is collectively responsible for grievous wrongs certain members of that community have committed. And viewed as a means of retribution, the usual arguments made against terrorism-as-coercion have no moral force. To explain why terrorism-as-retribution is morally wrong, we must attack the notion of collective responsibility on which the terrorist relies. (shrink)

It is not usually morally permissible to desire the suffering of another person, or to act so as to satisfy this desire; that is, to act with the aim of bringing about suffering. If the retributive emotions, and the retributive responses of which they are a part, are morally permitted or even required, we will need to see what is distinctive about them. One line of argument in this paper is for the conclusion that a retributive desire for the suffering (...) of the wrong-doer, and the aim to bring this about, can (contra recent arguments from Hanna 2008) be morally justified. -/- It has been suggested that by reflecting on the role of the retributive emotions in interpersonal relationships, and the alleged legitimacy of the aim for the suffering of the wrong-doer within them, support can be garnered for retributive practices of punishment by the state (Duff 1986 and 2001, Bennett 2002 and 2003). The conclusion of the second line of argument in the paper is that whilst the retributive responses can permissibly aim at suffering, the way in which this is so in interpersonal relationships cannot provide support for retributive state punishment. (shrink)

A defining feature of retributive conceptions of karma is their regarding of suffering or misfortune as consequent upon sins committed in previous lives. Some critical non-believers in karma take offence at this view, considering it to involve unjustly blaming the victim. Defenders of the view demur, and argue that a belief in retributive karma in fact provides a motivation for benevolent action. This article elucidates the debate, showing that its depth is such that it is best characterized as a disagreement (...) in form of life (in Wittgenstein’s sense) rather than as a disagreement in opinions. Also briefly discussed is an example of a non-retributive form that belief in karma and reincarnation can take. (shrink)

Critical analysis of wide variety of conceptions and justifications of retribution and punishment. Emphasis is on pivotal role of condemnation.

Recent empirical work suggests that emotions are responsible for anti-consequentialist intuitions. For instance, anger places value on actions of revenge and retribution, value not derived from the consequences of these actions. As a result, it contributes to the development of retributive intuitions. I argue that if anger evolved to produce these retributive intuitions because of their biological consequences, then these intuitions are not a good indicator that punishment has value apart from its consequences. This severs the evidential connection between (...) retributive intuitions and the retributive value of punishment. This argument may generalize to other deontological intuitions and theories. (shrink)

Retribution enjoys an unwarranted appeal from the public and its politicians. This is because it is impractical and perhaps even incoherent. This does not mean that we should reject the importance of morality for criminal justice nor should we reject the link between desert and proportionality. Nevertheless, we can reject the way retribution has understood these ideas in defense of a more plausible and compelling alternative.

How may a society, in a morally defensible way, confront a past of injustice and suffering, and seek to break the spell of violence and disregard for human life? I begin by demonstrating the relevance of this question to the South African Truth and Reconciliation Commission, and I draw attention to André du Toit’s longstanding interest in ways in which truth commissions may function to consolidate political change. In the second section of the article, I argue that truth commissions should (...) be regarded as a defensible moral compromise between the values of justice and social unity, and I criticize claims that truth commissions promote transitional justice, when that is understood as a distinctive conception of justice that emerges in circumstances of regime transition. In the third section, I criticize the claim that truth commissions are not a moral compromise at all but embody a superior, restorative conception of justice. I conclude by showing why retribution is required by criminal justice, and why truth commissions must be seen, not as an end in them selves, but as institutions whose function is to emphasize the importance of the rule of law, normal criminal justice, and legal recognition. (shrink)

Machine generated contents note: 1. Introduction and overview; 2. The nature of forgiveness and resentment; 3. The moral analysis of the attitudes of forgiveness and resentment defined; 4. The moral analysis of the attitudes of self-forgiveness and self-condemnation; 5. Philosophical underpinnings of the basic attitudes: forgiveness, resentment, and the nature of persons; 6. Moral theory: justice and desert; 7. The public response to wrongdoing; 8. Restorative justice: the public response to wrongdoing and the process of addressing the wrong.

I examine emotional reactions to wrongdoing to determine whether they offer support for retributivism. It is often thought that victims desire to see their victimizer suffer and that this reaction offers support for retributivism. After rejecting several attempts to use different theories of emotion and different approaches to using emotions to justify retributivism, I find that, assuming a cognitive theory of emotion is correct, emotions can be used as heuristic guides much as suggested by Michael Moore. Applying this method to (...) the actual emotional reactions of victims' relatives, however, does not find support for retributivism. Instead, it suggests punishment should be understood as part of a process of recovery with a complex set of demands. Retributive concerns can play a role in the process, but they don't have the priority that retributivism requires. (shrink)

Prior research on the psychology of retribution is complicated by the difficulty of separating retributive and general deterrence motives when studying human offenders . We isolate retribution by investigating judgments about punishing animals, which allows us to remove general deterrence from consideration. Studies 2 and 3 document a “victim identity” effect, such that the greater the perceived loss from a violent animal attack, the greater the belief that the culprit deserves to be killed. Study 3 documents a “targeted (...) punishment” effect, such that the responsive killing of the actual “guilty” culprit is seen as more deserved than the killing of an almost identical yet “innocent” animal from the same species. Studies 4 and 5 extend both effects to participants' acceptance of inflicting pain and suffering on the offending animal at the time of its death, and show that both effects are mediated by measures of retributive sentiment, and not by consequentialist concerns. (shrink)

Forgiveness and Retribution: Responding to Wrongdoing argues that ultimately, forgiveness is always the appropriate response to wrongdoing. In recent decades, many philosophers have claimed that unless certain conditions are met, we should resent those who have wronged us personally and that criminal offenders deserve to be punished. Conversely, Margaret Holmgren posits that we should forgive those who have ill-treated us, but only after working through a process of addressing the wrong. Holmgren then reflects on the kinds of laws and (...) social practices a properly forgiving society would adopt. (shrink)

The concept of divine justice has been the subject of considerable scrutiny in recent philosophical theology, as it bears upon the notion of punishment with respect to the doctrine of eternal damnation. In this essay, I set out a version of the traditional retributive view of divine punishment and defend it against one of the most important and influential contemporary detractors from this position, Thomas Talbott. I will show that, contrary to Talbott’s argument, punishment may satisfy divine justice, and that (...) perfect justice is commensurate with retribution, rather than, as he suggests, reconciliation and restoration. (shrink)

Retributive approaches to the justification of legal punishment are often thought to place exacting and unattractive demands on state officials, requiring them to expend scarce public resources on apprehending and punishing all offenders strictly in accordance with their criminal ill deserts. Against this caricature of the theory, I argue that retributivists can urge parsimony in the use of punishment. After clarifying what parsimony consists in, I show how retributivists can urge reductions in the use of punishment in order to conserve (...) scarce resources for other valuable social purposes, minimize the foreseeable and adverse effects of legal punishment on the innocent, and accommodate the fact that existing societies fail in numerous ways to satisfy the conditions that make retributive punishment fully justified. (shrink)

This is a slightly revised text of Jeffrie G. Murphy’s Presidential Address delivered to the American Philosophical Association, Pacific Division, in March 2006. In the essay the author reconsiders two positions he had previously defended—the liberal attack on legal moralism and robust versions of the retributive theory of punishment—and now finds these positions much more vulnerable to legitimate attack than he had previously realized. In the first part of the essay, he argues that the use of Mill’s liberal harm principle (...) against legal moralism cannot be cabined in such a way as to leave intact other positions that many liberals want to defend—in particular, certain fundamental constitutional rights and character retributivism in criminal sentencing. In the second part of the essay, he expresses serious doubts—some inspired by Nietzsche—about the versions of character retributivism that he had once enthusiastically defended and now describes himself as no more than a reluctant retributivist. (shrink)

abstract I examine emotional reactions to wrongdoing to determine whether they offer support for retributivism. It is often thought that victims desire to see their victimizer suffer and that this reaction offers support for retributivism. After rejecting several attempts to use different theories of emotion and different approaches to using emotions to justify retributivism, I find that, assuming a cognitive theory of emotion is correct, emotions can be used as heuristic guides much as suggested by Michael Moore. Applying this method (...) to the actual emotional reactions of victims’ relatives, however, does not find support for retributivism. Instead, it suggests punishment should be understood as part of a process of recovery with a complex set of demands. Retributive concerns can play a role in the process, but they don't have the priority that retributivism requires. (shrink)

From the article's conclusion: "This article does not challenge the coherence of retributive theory nor does it challenge the consistency of a retributive theorist who supports the death penalty. I have only argued that one cannot justify the death penalty simply by establishing the claim that wrongdoers deserve punishment which fits the crime. Unless one is willing to condone all sorts of barbaric punishments, then one must appeal to additional ethical considerations to establish which equivalent (or roughly equivalent or proportional) (...) punishments are morally acceptable.". (shrink)

Nearly all retributive theories of punishment adopt the following model. Punishments are justified when the wrongdoers receive the punishment they deserve. A deserved punishment is one that is proportionate to the offender’s culpability. Culpability has two components: the severity of the wrong, and the offender’s blameworthiness. The broader aim of this article is to outline an alternative retributivist model that directly involves the victim in the determination of the appropriate and just punishment. The narrower aim is to show that the (...) methodology employed by Michael Moore in support of the standard retributive model in fact better supports this alternative model. Moore himself explicitly rejects the idea that victims can play a role in determining just punishments, because this would entail assigning different punishments to equally culpable offenders. When properly applied, however, Moore’s method for justifying retributivism results in an approach that directly involves the victim in the punishment process. (shrink)

Moore argued that his principle of organic unities, according to which the value of a whole is to be distinguished from the value of the sum of its parts, is consistent with a retributivist view of punishment: both crime and punishment are intrinsic evils but the combination of the crime with the punishment of its perpetrator is less bad in itself than the crime unpunished. Moore’s principle excludes any form of retributivism that regards the punishment of a guilty person as (...) an intrinsic good. Jonathan Dancy offers a different account of such unities on which, pace Moore, value does not necessarily stay the same from one context to another. This alternative account is defended, but still seems to create difficulties for various forms of retributivism. Key Words: Bentham • Dancy • Moore • organic unities • retribution. (shrink)

Peter Strawson makes a crucial distinction between reactive attitudes and the objective attitude. Reactive attitudes such as gratefulness, anger and indignation imply that we take each other seriously as responsible agents. The objective attitude implies that we stop taking each other seriously. Strawson argues that the objective attitude is not merely psychologically difficult: it is inconceivable that we would systematically refrain from taking each other seriously and stop discussing with each other or blaming ourselves or others. Strawson, however, only discusses (...) the reactive attitudes from a general point of view. In this paper, we argue that the reactive attitudes of remorse and moral indignation are forms of ”symbolic restoration’. Retributive punishment should also be interpreted from this perspective. Consequently, our concern with moral blame cannot be understood independently from a concern with the harm that has occurred. Our attitude to the outcome determines our attitude to the agent. The concern with the mental state is secondary: it is structured by its place within the practice of symbolic restoration. (shrink)

Despite our moral misgivings, retributive canons of justice-the return of evil to evildoers-remain entrenched in law, literature, and popular moral precept. In this wide-ranging examination of retribution, Marvin Henberg argues that the persistence and pervasiveness of this concept is best understood from a perspective of evolutionary naturalism. After tracing its origins in human biology and psychology, he shows how retribution has been treated historically in such diverse cultural expressions as law codes, scriptures, drama, poetry, philosophy, and novels. Henberg (...) considers retributive thought in light of contemporary moral theory and current social and political concerns and advances his own theory of the morality of legal punishment."Retribution is no single doctrine or unified set of doctrines, but rather a sprawling variety of doctrines, many of them at odds with one another," observes Henberg. He suggests that understanding retributive thought as the quest for solace in the face of suffering helps to explain its variable nature. Since there is no single defensible moral criterion for identifying exact retaliation, culture is more important than nature in selecting among retributive practices. Typically, some forms of retribution are culturally approved, while others are disapproved. In place of the mistaken tendency to think of legal punishment as morally justified, Henberg maintains that legal punishment should be thought of as morally permitted. Author note: Marvin Henberg is Professor and Chair of the Department of Philosophy and Director of the University Honors Program at the University of Idaho. (shrink)

Hsiao has recently developed what he considers a ‘simple and straightforward’ argument for the moral permissibility of corporal punishment. In this article we argue that Hsiao's argument is seriously flawed for at least two reasons. Specifically, we argue that a key premise of Hsiao's argument is question-begging, and Hsiao's argument depends upon a pair of false underlying assumptions, namely, the assumption that children are moral agents, and the assumption that all forms of wrongdoing demand retribution.

The ‘dualist project’ in the philosophy of punishment is to show how retributivist and reductivist (utilitarian) considerations can be combined to provide an adequate justification of punishment. Three types of dualist theories can be distinguished—‘split‐level’, ‘integrated’ and ‘mere conjunction’. Split‐level theories (e.g. Hart, Rawls) must be rejected, as they relegate retributivist considerations to a lesser role. An attempted integrated theory is put forward, appealing to the reductivist means of deterrence. However, it cannot explain how the two types of considerations, retributivist (...) and reductivist, are to be genuinely integrated as opposed to merely conjoined. An attempt to find integration at the deeper level of political philosophy is then examined, in the form of Lacey's communitarian theory of punishment. In the end, mere conjunction dualism must be accepted by default. This conclusion points to a deep‐lying schizophrenia in our substantive criminal law. Although developing this theme is beyond its scope, the paper ends by saying a little on how a mere conjunction dualist theory of punishment leads on to a similar theory of criminalization. (shrink)

According to criminal law a person should not be punished for a bare intention to commit a crime. While theorists have provided consequentialist and epistemic justifications of this tenet, no convincing retributive justification thereof has yet been advanced. The present paper attempts to fill this lacuna through arguing that there is an important moral difference between a future-directed and a present-directed intention to act wrongfully. Such difference is due to the restraining influence exercised in the decisional process by the ‘now-belief’, (...) i.e. the belief that the time has come to act, which is exclusively involved in the latter type of intention. (shrink)

How may a society, in a morally defensible way, confront a past of injustice and suffering, and seek to break the spell of violence and disregard for human life? I begin by demonstrating the relevance of this question to the South African Truth and Reconciliation Commission, and I draw attention to André du Toit's long- standing interest in ways in which truth commissions may function to consolidate political change. In the second section of the article, I argue that truth commissions (...) should be regarded as a defensible moral compromise between the values of justice and social unity, and I criticize claims that truth commissions promote transitional justice, when that is understood as a distinctive conception of justice that emerges in circum stances of regime transition. In the third section, I criticize the claim that truth commissions are not a moral compromise at all but embody a superior, restorative conception of justice. I conclude by showing why retribution is required by criminal justice, and why truth commissions must be seen, not as an end in themselves, but as institutions whose function is to emphasize the importance of the rule of law, normal criminal justice, and legal recognition. (shrink)

Within the United States, the most prominent justification for criminal punishment is retributivism. This retributivist justification for punishment maintains that punishment of a wrongdoer is justified for the reason that she deserves something bad to happen to her just because she has knowingly done wrong—this could include pain, deprivation, or death. For the retributivist, it is the basic desert attached to the criminal’s immoral action alone that provides the justification for punishment. This means that the retributivist position is not reducible (...) to consequentialist considerations nor in justifying punishment does it appeal to wider goods such as the safety of society or the moral improvement of those being punished. A number of sentencing guidelines in the U.S. have adopted desert as their distributive principle, and it is increasingly given deference in the “purposes” section of state criminal codes, where it can be the guiding principle in the interpretation and application of the code’s provisions. Indeed, the American Law Institute recently revised the Model Penal Code so as to set desert as the official dominate principle for sentencing. And courts have identified desert as the guiding principle in a variety of contexts, as with the Supreme Court’s enthroning retributivism as the “primary justification for the death penalty.” 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 the first section, I explore the retributivist justification of punishment and explain why it is inconsistent with free will skepticism. In the second section, 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 criminal punishment. I conclude in the third section 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. 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)

This paper argues that many of our most important theories of retributivism are unwittingly committed to the radical thesis that prepunishment—punishment before an offense—is morally permissible. From the perspective of diachronic justice on which these theories crucially depend, the timing of retribution is, ceteris paribus, irrelevant. But retributivism’s counterintuitive support does not stop there: there are conditions under which pre-offense apprehension and punishment guarantees a higher probability of justice being done. Under these conditions, the popular retributive theories I have (...) in mind do not just permit, but require, prepunishment. (shrink)

Retribution in Deuteronomy is bound up with the character of God, known from dealings in history with Israel and other nations. Retribution is applied according to a certain rightness of things, or “justice and righteousness,” rooted in the person of God, so that God’s love and compassion have the final determining word.

Few defences of retribution in criminal justice make a plausible case for the view that punishment plays a necessary role in restoring relations between offenders, victims and the community. Even fewer defences of retribution make a plausible appeal to the interpersonal practice of apologizing as a symbolically adequate model for criminal justice. This review article considers Christopher Bennett’s engaging defence of an apology ritual in criminal justice, an account of justifiable punishment that draws from the best of retributive (...) and restorative justice theory. (shrink)

This is a semifinal draft of a forthcoming paper. Kant’s account of the pain of remorse involves a hybrid justification based on self-retribution, but constrained by forward-looking principles which say that we must channel remorse into improvement, and moderate its pain to avoid damaging our rational agency. Kant’s corpus also offers material for a revisionist but textually-grounded alternative account based on wrongdoers’ sympathy for the pain they cause. This account is based on the value of care, and has forward-looking (...) constraints much like Kant’s own account. Drawing on both Kant’s texts and recent work in empirical psychology, I argue that experiences of remorse which conform to the sympathetic account may fulfill Kant’s forward-looking goals better than those conforming to his own account. (shrink)

The retributive duty is both held by and owed to the victim of a culpable wrongdoing. This reflexive account fits nicely with a Kantian emphasis on autonomy because the Kantian account allows us to explain how a person can have a duty to oneself. The reflexive account also fits nicely with, and is in part supported by, the notion that a culpable wrongdoer forfeits some of his rights . The waivability of the retributive duty in part explains why it is (...) intuitively permissible for the victim not to punish the wrongdoer, but why the same is not true with regard to the state. The reflexive duty also fits into a consent-based account of state authority and the notion that natural duties are mostly negative. Das Opfer einer schuldhaften Verletzung seiner Rechte hat nicht nur Recht, sondern auch die Pflicht Vergeltung zu üben. Diese reflexive Erwägung paßt sehr gut zu einer Betonung des Autonomiegedankens nach der Weise Kants, da die Auffassung Kants zu erklären vermag, wie eine Person eine Pflicht gegen sich selbst haben kann. Ebenso gut paßt die reflexive Erwägung zu - und sie wird zum Teil auch gestützt von - der Erkenntnis, daß jemand, der schuldhaft Unrecht tut, einige seiner Rechte verwirkt. Freilich kann auf die Vergeltung verzichtet werden, und das erklärt teilweise, warum es unseren Intuitionen entspricht, daß es dem Opfer erlaubt ist, den Täter nicht zu strafen, während das für den Staat gerade nicht gilt. Die reflexive Pflicht paßt schließlich auch zu einer auf Einverständnis gegründeten Sichtweise staatlicher Autorität, und sie läßt sich gut vereinbaren mit der Erkenntnis, daß natürliche Pflichten zumeist negativ formuliert sind. (shrink)

In this paper I examine John Rawls’s understanding of desert. Against Samuel Scheffler, I maintain that the reasons underlying Rawls’s rejection of the traditional view of distributive desert in A Theory of Justice also commit him to rejecting the traditional view of retributive desert. Unlike Rawls’s critics, however, I view this commitment in a positive light. I also argue that Rawls’s later work commits him to rejecting retributivism as a public justification for punishment.