The article discusses retributive justice and punitive restraint in response to the worst types of crime. I take the Breivik Case as a starting point. Anders Behring Breivik was sentenced to 21 years of preventive detention for killing 69 people, mainly youths, at Utøya and 8 people in Oslo on July 22nd, 2011. Retributivist theories as well as commonly held retributive intuitions suggest that much harsher punishment is required for such crimes. According to some retributivist theories, most notably on the (...) influential theories of Kant and Hegel, the death penalty is warranted for murderers like Breivik. This suggests that the rationale for punitive restraint in a case like the Breivik Case can only be found in forward- looking, consequentialist theories of punishment, or by adding to retributivist theories a side-constraint in the form of a principle of parsimony. However, I argue that if we look closer at the function of punishment in the retributivist theories of Kant and Hegel, they too imply a rationale for punitive restraint, even for such horrific crimes as here discussed. Against Kant and Hegel’s own views on the death penalty, I argue that their broader “freedom theories” of retributive justice do not imply the justice of the death penalty or life imprisonment. In the last part of the article, I explore differences in the concepts of freedom entailed by Kant and Hegel’s theories, and I relate these to some of the background factors relevant to the Breivik Case. (shrink)

The paper offers five desiderata on a realist normative theory of politics: that it should avoid moralism, deontologism, transcendentalism, utopianism, and vanguardism. These desiderata argue for a theory that begins from values rooted in a people’s experience; that avoids prescribing a collective deontological constraint; that makes the comparison of imperfect regimes possible; that takes feasibility and sustainability into account; and that makes room for the claims of democracy. The paper argues, in the course of exploring the desiderata, that a neo-republican (...) philosophy of government does pretty well in satisfying them. (shrink)

After an initial discussion (§i) of what a theory of criminal law might amount to, I sketch (§ii) the proper aims of a liberal, republican criminal law, and discuss (§§iii–iv) two central features of such a criminal law: that it deals with public wrongs, and provides for those who perpetrate such wrongs to be called to public account. §v explains why a liberal republic should maintain such a system of criminal law, and §vi tackles the issue of criminalization—of how we (...) should determine the proper scope of the criminal law. (shrink)

Prosecutors in the US legal system have great power to interfere at their discretion in the lives of citizens, and face relatively few checks on the exercise of this discretion. The vast scope of the criminal law provides a pretext for prosecuting nearly anyone. Meanwhile, other features of the legal system, such as the way plea bargains are structured and the doctrine of prosecutorial immunity, further increase prosecutorial power. And existing institutional restraints on prosecutorial abuses, such as democratic accountability, the (...) grand jury system, and the possibility of a selective prosecution defense, are mostly ineffectual. I draw on republican political theory, including insights from Philip Pettit and Elizabeth Anderson, to argue that this state of affairs gives prosecutors dominating, and therefore unjust, power over vast swathes of the public. I then survey some potential institutional changes which might help ameliorate the problem. (shrink)

One of the ways in which public health officials control outbreaks of epidemic disease is by attempting to control the situations in which the infectious agent can spread. This may include isolation of infected persons, quarantine of persons who may be infected and detention of persons who are present in or have entered premises where infected persons are being treated. Most who have analysed such measures think that the restrictions in liberty they entail and the detriments in welfare they impose (...) can be justified and this paper proceeds from the assumption that detention measures are justifiable in some circumstances. Such measures are often implemented without any compensation being given to the persons who are detained. This raises the question: What do we owe to those whose liberty is justifiably restricted (e.g. through isolation, quarantine or detention) as a public health measure during a public health emergency? More specifically, do we owe them compensation for any losses they experience? The paper falls in four main sections. The first section provides examples of the current regulatory state of affairs from the US, Canada and WHO. The second section lays out the liberal, welfarist and pragmatic arguments for providing compensation. The third section discusses the arguments against compensation and the fourth and final section provides the conclusion. It is argued that the arguments for providing compensation clearly outweigh the counterarguments and that the default public policy therefore should be that compensation is provided. (shrink)

Ratio Juris, Volume 34, Issue 4, Page 293-314, December 2021.

The Limits of Blame, by KellyErin I. Cambridge, MA: Harvard University Press, 2018. Pp. 221.

This paper presents some findings concerning peacemaking in restorative justice conferences. In guidelines and handbooks where the terms and conditions of restorative conferences are exemplified, forgiveness and reconciliation are not explicitly mentioned. However, many proponents of restorative justice assume that ‘coming together voluntarily’ will lead to rapprochement and reconciliation. Research findings in many ways contradict this supposed dynamic. Many victims want to teach the young offender a lesson. Others don’t want ‘closure’ or ‘restoration,’ and experience the pressure to come to (...) terms as threatening. These observations make clear that notions as ‘forgiveness,’ ‘repentance,’ and ‘restoration’ are often too ‘big’ and ill-suited to function as core principles for restorative justice. It seems inappropriate to burden the process of coping with past injuries with these concepts. The process of moral learning within restorative justice conferences might better be conceived in terms of opening up and developing understanding. (shrink)

Abstract:I argue that, since the legal order is a public good, an act of legal punishment may be viewed as the imposition of a kind of tax, which I label ‘a quasi-tax’. Once punishment is viewed as a quasi-tax, the traditionally opposed approaches to punishment may be reconciled, as both utility and retribution jointly justify an act of legal punishment. I discuss objections to my argument and I reply to them.

Punishment involves deliberating harming individuals. How, then, if at all, is it to be justified? This, the first of three papers on the philosophy of punishment (see also 'Punishment: Nonconsequentialism' and 'Punishment: The Future'), examines attempts to justify the practice or institution according to its consequences. One claim is that punishment reduces crime, and hence the resulting harms. Another is that punishment functions to rehabilitate offenders. A third claim is that punishment (or some forms of punishment) can serve to make (...) restitution to victims, and a fourth is that it can strengthen social values. The paper examines these claims, and finally considers pluralist theories which combine retributive and harm-reductive or utilitarian considerations. (Retributive theories are examined in their own right in 'Punishment: Nonconsequentialism'.). (shrink)

Health and health care problems can be addressed from multiple disciplinary perspectives. This raises challenges for how to do cross-disciplinary scholarship in ways that are still robust, rigorous and coherent. This paper sets out one particular approach to cross-cutting research—regulation—which has proved extremely fertile for scholars working in diverse fields, from coal mine safety to tax compliance. The first part of the paper considers how regulatory ideas might be applied to health and health care research in general. The second part (...) goes on to sketch out how a regulation perspective on one specific area, illicit drug policy, can open up new directions for research. In conclusion, a future research agenda is outlined for regulatory scholarship on health and health care. (shrink)

This paper discusses a non-state justice system (Sistema Comunitario de Seguridad, Justicia y Reeducación, hereafter: SCSJR) applied by some of the Afromexican and Indigenous communities of the Guerrero state in Mexico as an example of a maximalist restorative justice system. Restorative justice is presented here as an alternative to criminal justice. While it responds to similar moral concerns as retributive justifications do, it offers more adequate mechanisms of dealing with certain crimes and aims to reduce coerciveness of justice when dealing (...) with lawbreaking. Restorative justice is also an approach that should be perceived as more legitimate when handling cases where the state lacks the moral standing to prosecute offenders. The SCSJR is used as an example to demonstrate the possibility of a justice system based on restorative principles to be effective in handling the entirety of lawbreaking in a community. In the case of the SCSJR this approach to justice has been proved to be effective even in the wake of high levels of criminal activity in the region. This paper discusses the SCSJR’s institutions and attitude toward lawbreaking and argues that they demonstrate an example of a justice system based on restorative justice. (shrink)

The claim that guns can safeguard freedom is common in US political discourse. In light of a broadly republican understanding of freedom, I evaluate this claim and its implications. The idea is usually that firearms would enable citizens to engage in revolutionary violence against a tyrannical government. I argue that some of the most common objections to this argument fail, but that the argument is fairly weak in light of other objections. I then defend a different argument for the claim (...) that guns can safeguard freedom. I claim that firearm ownership among members of oppressed groups can hinder the use of systematic violence aimed at preventing them from exercising their basic liberties. I show how a commitment to armed self-defense is compatible with non-violent civil resistance as a tool of political change, and show how the former facilitated the latter during the Civil Rights Movement. Finally, I consider the policy implications of my argument. I don’t think it vindicates lax gun control policies. However, it may vindicate some individuals acquiring guns and learning how to use them, and some organizations aiding them in doing so. (shrink)

‘Optimistic’ normative theories of criminal justice aim to justify criminal sanction in terms of its reprobative/rehabilitative value rather than its punitive nature as such. But do such theories accord with ordinary intuitions about what constitutes a ‘just’ response to wrongdoing? Recent empirical work on the psychology of punishers suggests that human beings have a ‘brutely retributive’ moral psychology, making them unlikely to endorse normative theories that sacrifice retribution for the sake of reprobation or rehabilitation; it would mean, for example, that (...) we cannot expect people to support such optimistic theories democratically, calling their feasibility into question. Taking the civic republican theory as an exemplar of optimistic theories, we argue that it does not fail this feasibility test. We review recent empirical research, including studies of our own, to support the claim that, far from being brute retributivists, human beings are generally satisfied only with punishment that delivers something other than mere retribution. And we show that this coheres very closely with the goals and policies that civic republicanism would support, as it may be expected to cohere also with other optimistic proposals. (shrink)

Harming other people is prima facie wrong. Unless we can be very certain that doing so is justified under the circumstances, we ought not to do it. In this paper, I argue that we ought to dismantle harsh retributivist criminal justice systems for this reason; we cannot be sufficiently certain that the harm is justified. Gregg Caruso, Ben Vilhauer and others have previously argued for the same conclusion; however, my own version sidesteps certain controversial premises of theirs. Harsh retributivist criminal (...) justice can only be morally right if the following three propositions are true: Moral responsibility exists, retributivism is right, and we can find out how much punishment offenders deserve for their crimes. Suppose that we initially assign a high credence to each of the three propositions; I assume for the sake of argument that there are good arguments in support of each. Nevertheless, these arguments ultimately depend on intuitions. Since we have philosophical peers whose intuitions differ from ours, we ought to downgrade our credence in each. However, even slightly less credence in each proposition means far less credence in a conjunction of all three. Since the stakes are high and there are morally safer options for a criminal justice system, we ought to dismantle harsh retributivist ones. (shrink)

It has become a commonplace in neo-republican thinking to claim that if the notion of rights can be allowed a place in republican political theory, it can never achieve the prominence that liberalism allegedly grants it. Philip Pettit’s book, Republicanism, provides several arguments to buttress this thesis. This article aims at examining these arguments in order to show that once properly stated, they must on the contrary be considered as powerful arguments to the effect that republicans take rights very seriously.

Numerous retributivists hold that deserved punishment has intrinsic value. A number of puzzles regarding that claim are identified and discussed. An alternative, more Kantian account of intrinsic value is then identified and the ways in which legal punishment might be understood to cohere with it are explored. That account focuses on the various ways in which legal punishment might be persons-respecting. It is then argued that this Kantian account enables us to solve or evade the puzzles generated by the other (...) intrinsic value account. (shrink)