In the dissertation, I consider the permissibility of a familiar set of responses to wrongdoing in our interpersonal relationships—those responses that constitute the imposition of some cost upon the wrongdoer. Some of these responses are, I argue, properly considered punishing, and some of these instances of punishing are in turn permissible. Punishment as I understand it is a broad phenomenon, common in and to all human relationships, and not exclusively or even primarily the domain of the state. Personal interactions expressive (...) of wrong-reactive attitudes like disappointment, anger, and guilt will sometimes constitute punishment so understood. I consider childhood punishment, self-punishment, and punishment between friends, concluding that punishment in the context of our personal relationships may sometimes be appropriate where undertaken not for the sake of deterrence nor of retributive justice, but for the sake of the aims constitutive of the relationship in which it occurs. (shrink)

Dictionaries distinguish the following senses of ‘punishment’:the act of punishing, or the fact of being punished - where ‘punish’ is defined as: an act of public authority causing an offender to suffer for an offense. As In: ‘the respectable not only obey the law, but punish those who refuse to do so’.that which is inflicted as a penalty for an offense. As in: ‘all punishments are to be carried out in the Barrack Yard’, ‘fit the punishment to the crime’.severe handling (...) or treatment causing heavy damage, injury or loss. As in: ‘the fighter had been subjected to heavy punishment in his losing bout’, ‘the ships received considerable punishment from the batteries’. (shrink)

Dictionaries distinguish the following senses of ‘punishment’:the act of punishing, or the fact of being punished - where ‘punish’ is defined as: an act of public authority causing an offender to suffer for an offense. As In: ‘the respectable not only obey the law, but punish those who refuse to do so’.that which is inflicted as a penalty for an offense. As in: ‘all punishments are to be carried out in the Barrack Yard’, ‘fit the punishment to the crime’.severe handling (...) or treatment causing heavy damage, injury or loss. As in: ‘the fighter had been subjected to heavy punishment in his losing bout’, ‘the ships received considerable punishment from the batteries’. (shrink)

The argument between retributivists and consequentialists about what morally justifies the punishment of offenders is incoherent. If we were to discover that all of the contending justifications were mistaken, there is no realistic prospect that this would lead us to abandon legal punishment. Justification of words, beliefs and deeds, can only be intelligible on the assumption that if one's justification were found to be invalid and there were no alternative justification, one would be prepared to stop saying, believing or doing (...) what one has attempted to justify. Therefore, the moral standing or basis of our practices of punishing offenders can not rest on a justification of it. (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)

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)

Criminal law theorists overwhelmingly agree that for some conduct to constitute punishment, it must be imposed intentionally. Some retributivists have argued that because punishment consists only of intentional inflictions, theories of punishment can ignore the merely foreseen hardships of prison, such as the mental and emotional distress inmates experience. Though such distress is foreseen, it is not intended, and so it is technically not punishment. In this essay, I explain why theories of punishment must pay close attention to the unintentional (...) burdens of punishment. In two very important contexts — punishment measurement and justification — we use the term “punishment” to capture not only intentional harsh treatment but certain unintentional harsh treatment as well. This means that the widely accepted view that punishment is an intentional infliction requires substantial caveats. It also means that any purported justification of punishment that addresses only the intentional infliction of punishment is woefully incomplete. -/- [This paper has been published under a Creative Commons Attribution-NonCommercial-ShareAlike license.]. (shrink)

Neither currently prevalent justifications of punishment, nor a modified, contractarian version of a justification that I develop here, can be used to justify actual state punishment, even if some forms of punishment may remain legitimate. I argue in this thesis that alternative punitive practices such as developed by some Canadian aboriginal communities are more likely to conform to the criteria of punitive justice developed by standard justifications, as well as being more likely to conform to criteria developed in feminist ethics.

_Historical and contemporary philosophical writings on punishment._.

This paper is a philosophical defense of the doctrine of penal substitution. I begin with a delineation of Richard Swinburne’s satisfaction-type theory of the atonement, exposing a weakness of it which motivates a renewed look at the theory of penal substitution. In explicating a theory of penal substitution, I contend that: (i) the execution of retributive punishment is morally justified in certain cases of deliberate wrongdoing; (ii) deliberate human sin against God constitutes such a case; and (iii) the transfer of (...) the retributive punishment due sinners to Christ is morally coherent. Whatever else might be said for and against such a conception of the doctrine of the atonement, the plausibility of the theory presented here should give us pause in the often hasty rejection of the doctrine of penal substitution. (shrink)

This paper describes developments in punishment theory since the middle of the twentieth century. After the mid–1960s, what Stanley I. Benn called “preventive theories of punishment”—whether strictly utilitarian or more loosely consequentialist like his—entered a long and steep decline, beginning with the virtual disappearance of reform theory in the 1970s. Crowding out preventive theories were various alternatives generally (but, as I shall argue, misleadingly) categorized as “retributive”. These alternatives include both old theories (such as the education theory) resurrected after many (...) decades in philosophy’s graveyard and some new ones (such as the fairness theory). Only in the last decade or so have new vares o “consequentialism” appeared to dilute a debate among philosophers that had become almost entirely about “retributivism”. I shall describe this trend in more detail. The description will be less an update of my 1990 survey than a rethinking of it. The conclusion I draw from this rethinking is that we need to drop the utilitarian–retributivist (and nonconsequentialist–nonconsequentialist) distinction in favor of one sorting punishment theories according to whether they rely in part on empirical considerations (externalist theories) or instead rely (almost) entirely on conceptual relations (internalist theories). (shrink)

One prominent contemporary retributivist theory is built on the notion that crime yields an “unfair advantage” over law-abiding citizens which punishment removes or nullifies. Michael Davis has defended this theory by constructing a market model of “unfair advantage” that he contends answers critics' objections to the retributivist enterprise. I seek to demonstrate the inadequacy of Davis's approach, arguing in particular that the market model rests on an incoherent notion of “demand” and would not, even if coherent, link “unfair advantage” to (...) the seriousness of crimes in any acceptable fashion. The salience of traditional objections to retributivism is thus unaffected by Davis's theory. (shrink)

During the last half of the twentieth century, legal philosophy (or legal theory or jurisprudence) has grown significantly. It is no longer the domain of a few isolated scholars in law and philosophy. Hundreds of scholars from diverse fields attend international meetings on the subject. In some universities, large lecture courses of five hundred students or more study it. The primary aim of the Law and Philosophy Library is to present some of the best original work on legal philosophy from (...) both the Anglo-American and European traditions. Not only does it help make some of the best work avail able to an international audience, but it also encourages increased awareness of, and interaction between, the two major traditions. The primary focus is on full-length scholarly monographs, although some edited volumes of original papers are also included. The Library editors are assisted by an Editorial Advisory Board of internationally renowed scholars. Legal philosophy should not be considered a narrowly circumscribed field. (shrink)

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)