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)

For generations, philosophers of punishment have sought to revise or combine established theories of punishment in a way that could reconcile the utilitarian aims of punishment with the demands of deontological justice. Victor Tadros’ recent work addresses the same problem, but answers it w it h an entirely original theory of punishment based on the duties criminals acquire by committing their crimes. The unexpected appearance of a new rationale for punishment has already inspired a robust dialogue between Tadros and his (...) critics on many of the individual claims that, linked together, comprise his argument. This critique focuses instead on Tadros’ theory as a whole and the methodology he uses to support it. It proposes that Tadros’ argumentative strategy can’t justify his rationale by virtue of (1) the extent and complexity of the moral reasoning he invokes, (2) the counter-intuitive results his theory produces in an array of specific cases, and (3) the superiority of a negative-retributivist account in which moral reasoning and intuitive judgments, and the principles and applications that f low from each, are coherent and mutually supportive. Victor Tadros responds to these arguments in an essay following this critique. (shrink)

In articles published ten years apart in 2011 and 2021, Gur-Arye argues that when considering an agent’s explanation for doing something that looks, prima facie, like a criminal offence, we should distinguish between a plea of justification, and an assertion that one acted within one’s power. The former explains an agent’s reasons for having committed a pro tanto offence (i.e., actus reus + mens rea). The latter is a denial that the agent committed any pro tanto offence at all. In (...) this piece, I build on Gur-Arye’s argument, suggesting that her claim about powers can be extended to all instances in which rights are displaced. I argue that in its expanded form, the practical significance of Gur-Arye’s claim goes well beyond what she identifies. It points to important and underappreciated points about the structure and classification of defensive claims in the criminal law, and helps identify errors in some arguments commonly made to support claims about disputed features of justifications. (shrink)

Police killings of individuals with mental illness have prompted calls for greater funding of mental health services to shift responsibilities away from the police. Such investments can reduce police interactions with vulnerable populations but are unlikely to eliminate them entirely, particularly in cases where individuals with mental illness have a weapon or are otherwise dangerous. It remains a pressing question, then, how police should respond to these and other vulnerable aggressors with diminished culpability (VADCs). This article considers and ultimately rejects (...) three potential approaches from the ethics of defensive force literature. It looks to improve on them by developing what I call the fusion account, which explains how vulnerability and diminished culpability fit together to provide moral grounds for extra protections from deadly force. The article’s final sections explore the policy implications of the fusion account for police administrators, officers, and the law. (shrink)

Philosophical writing about the legal practice of punishment has traditionally focused on two central questions: what (if anything) justifies the practice of tr.

The paper addresses a puzzle about the proportionality requirement on self-defense due to L. Alexander. Indirectly the puzzle is also relevant to the proportionality requirement on punishment, insofar as the right to punish is derived from the right to self-defense. Alexander argues that there is no proportionality requirement on either self-defense or punishment, as long as the aggressor/offender has been forewarned of the risk of a disproportional response. To support his position Alexander appeals to some puzzle cases, challenging us to (...) explain why the requirement applies in some of them when it clearly does not in others. The paper responds to his challenge by answering two questions: why does the proportionality requirement exist in the first place, and when does it apply? The paper argues that the requirement holds because of our need to protect our rights from violation, and that it applies to cases where the person defending his rights counts as having imposed a cost on one of the offender’s options. An account is offered of when such cost imposition occurs. (shrink)

In this paper I argue that punishment should be proportional to desert; that desert turns solely on culpability and not on results: that culpability is a function of what the actor perceives are the risks of his act to others’ interests and the reasons he perceives that might justify, excuse, or aggravate taking those risks; that because culpability is a complex function, ordinally ranking acts in terms of culpability is quite difficult; that converting the ordinal ranking into cardinal measures of (...) deserved punishment must perforce be controversial; and that deserved punishment, which is deserved suffering, must somehow deal with the fact that the actor may have already suffered undeservedly. (shrink)