The debate over whether ‘fair-play’ can serve as a justification for legal punishment has recently resumed with an exchange between Richard Dagger and Antony Duff. According to the fair-play theorist, criminals deserve punishment for breaking the law because in so doing the criminal upsets a fair distribution of benefits and burdens, and punishment rectifies this unfairness. Critics frequently level two charges against this idea. The first is that it often gives the wrong explanation of what makes crime deserving of punishment, (...) since the wrongfulness of murder is not primarily about unfairness. The second is that it implies that all crimes deserve the same degree of punishment, because all crimes create the same degree of unfairness. These objections are viewed as revealing fatal flaws in the theory. Although Dagger attempts to meet these objections by drawing on political theory, Duff responds that this still draws upon the wrong kind of resources for meeting these objections. This paper argues that these two objections rest on a crucial mistake that has been overlooked by both the defenders and critics of fair-play. This mistake results from failing to distinguish between what justifies punishment as a response to crime (which requires a common element to all crime) and what justifies attaching particular penalties to crimes (which requires making distinctions in the severity of crime). The arguments presented will give reasons to consider fair-play as a viable justification for legal punishment. (shrink)

The fair-play theory of punishment claims that the state is justified in imposing additional burdens on law-breakers, to remove the unfair advantage the latter have enjoyed by disobeying the law. From this perspective, punishment reestablishes a fair distribution of benefits and burdens among all citizens. In this paper, I object to this view by focusing on the case of civil disobedience. I argue that the mere illegality of this conduct is insufficient to establish the agent’s unfair advantage over his lawabiding (...) fellows, hence the imposition of additional burdens upon him through legal punishment. I articulate a broader account of citizens’ fair-play duties, able to capture disobedience as well as obedience to the law. While claiming that some law-breakers may not be treated as free-riders, I also gesture at the fact that some law-obeying citizens may not be ‘playing fair’: in some cases, a failure to engage in civil disobedience represents a failure to do one’s own part within the cooperative scheme of society. (shrink)

Boonin examines more than a dozen theories of punishment and offers perhaps the most systematic argument that the legal practice of punishment is probably unjustified. This provocative claim comes at a time when US prisons face unsustainable population growth and high recidivism rates. In place of punishment, Boonin offers an account of ‘compulsory victim restitution’. Responses to Boonin have focused on the merits of his theory of restitution or have defended a single particular theory of punishment from his objections. The (...) present paper offers a more comprehensive response, which finds a critical fault in the crux of Boonin’s argument: the ‘entailment test’. If the practice of punishment is unjustified, it is not for the reasons Boonin gives. (shrink)

Chad Flanders has argued that retributivism is inconsistent with John Rawls’s core notion of public reason, which sets out those considerations on which legitimate exercises of state power can be based. Flanders asserts that retributivism is grounded in claims about which people can reasonably disagree and are thus not suitable grounds for public policy. This essay contends that Rawls’s notion of public reason does not provide a basis for rejecting retributivist justifications of punishment. I argue that Flanders’s interpretation of public (...) reason is too exclusionary: on it, public reason would rule out any prominent rationale for punishment. On what I contend is a better interpretation of public reason, whether retributivism would be ruled out as a rationale for punishment depends on whether a retributivist account can be constructed from shared political commitments in a liberal democracy. Some prominent versions of retributivism meet this requirement and so are consistent with public reason. (shrink)

Chad Flanders has argued that retributivism is inconsistent with John Rawls’s core notion of public reason, which sets out those considerations on which legitimate exercises of state power can be based. Flanders asserts that retributivism is grounded in claims about which people can reasonably disagree and are thus not suitable grounds for public policy. This essay contends that Rawls’s notion of public reason does not provide a basis for rejecting retributivist justifications of punishment. I argue that Flanders’s interpretation of public (...) reason is too exclusionary: on it, public reason would rule out any prominent rationale for punishment. On what I contend is a better interpretation of public reason, whether retributivism would be ruled out as a rationale for punishment depends on whether a retributivist account can be constructed from shared political commitments in a liberal democracy. Some prominent versions of retributivism meet this requirement and so are consistent with public reason. (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)

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.

Imagine a citizen (call her Ellen) engages in conduct the state says is a crime, for example, money laundering. Imagine too that the state of which Ellen is a citizen has decided to make money laundering a crime. Does the state wrong Ellen when it punishes her for money laundering? It depends on what you think about the authority of the criminal law. Most criminal law scholars would probably say that the criminal law as such has no authority. Whatever authority (...) is has depends on how well it adheres to the demands of morality inasmuch as morality is the only authority we have. Thus if morality says that money laundering should not be a crime then the state wrongs Ellen when it punishes her. But if the criminal law as such does have authority, and if in the exercise of its authority the state has decided to make money laundering a crime, then the state does Ellen no wrong when it punishes her. (shrink)

Public officials should compensate the victims of wrongful conviction and enforcement. The same considerations in favor of compensating people for wrongful conviction and enforcement in other cases support officials’ payment of reparations to the victims of unjust enforcement practices related to the drug war. First, we defend the claim that people who are convicted and incarcerated because of an unjust law are wrongfully convicted. Although their convictions do not currently qualify as wrongful convictions in the legal sense, we argue that (...) the same reasons for legally recognizing other wrongful convictions support conceiving of these cases as wrongful convictions. If so, then people who suffered wrongful convictions associated with unjust laws, like others who were wrongfully convicted, are entitled to compensation and reparation. We then argue that America’s drug laws are unjust laws. Therefore, people who were convicted of nonviolent drug offenses are entitled to compensation. (shrink)

This article investigates the relationship between distributive injustice and political obligation within the confines of the fair-play theory of political obligation. More specifically, it asks ho...

This article investigates the relationship between distributive injustice and political obligation within the confines of the fair-play theory of political obligation. More specifically, it asks how the distribution of benefits and burdens of a cooperative scheme affects people’s fair-play obligations to that scheme. It argues that neither a sufficiency-based nor a proportionality-based approach is capable of answering that question singlehandedly. However, the two approaches can be combined in a plausible way. Noting that some of the duties that go into our (...) fair-play obligations are ‘gradual’ and others are ‘non-gradual’, the article argues that the sufficiency-based approach explains non-gradual duties such as the duty to obey the law, and that the proportionality-based approach explains gradual duties like political participation and civic responsibility. Thus, the article contends that the fair-play theory should be extended beyond the question of legal compliance and be applied to the duties of good citizenship more generally. (shrink)

In this paper, I defend fairness-based retributivism against two important objections, the no-benefit objection and the social injustice objection. I argue that the theory can defeat the no-benefit objection by developing an account of how crimes can be sources of unfairness by inflicting losses on people, and that it can blunt the social injustice objection by toning down the theory’s distributive aspirations. I conclude that fairness-based retributivism, contrary to received wisdom, merits further attention from legal and political philosophers.

The benefit-fairness theory of punishment, which is one of the most prominent retributive justifications of punishment, appeals to some benefits received by an offender in explaining why it is fair to impose punitive burdens on him. However, many see the two traditional versions of the theory, found in the works by writers such as Herbert Morris, Jeffrie Murphy, and George Sher, as being susceptible to fatal objections. In a recent paper, “Fairness, Political Obligation, and Punishment,” Zachary Hoskins offers a new (...) version of the benefit-fairness theory of punishment. I will highlight his original contribution by showing how his version of the benefit-fairness theory of punishment is different from the traditional versions in such a way that the main objections applying to the traditional versions do not apply to his account. Nonetheless, despite its many virtues, I will argue that Hoskins’s theory fails because it would entail disproportionate punishment. (shrink)

This thesis examines the concept of civil disobedience, and the role the latter can play in a democratic society. It aims to offer a moral justification for civil disobedience that departs from consequentialist or deontological considerations, and focuses instead on virtue ethics. By drawing attention to the notion of civic virtues, the thesis suggests that, under some circumstances, an act of civil disobedience is the very act displaying a virtuous disposition in the citizen who disobeys. Such disposition is interpreted in (...) light of a duty each individual has to respect her fellow citizens as autonomous agents. This grounds, in turn, a moral obligation to respect the law. The central claim of the thesis is that the obligation towards the law is fulfilled not only through acts of obedience but also, under different circumstances, through acts of disobedience. The status of non-violence as a necessary component of civil disobedience is questioned, and it is argued that a degree of force or violence may be permissible in civil disobedience, when it is compatible with the duty to respect others’ autonomy. Subsequently, the thesis offers an analysis of ‘reasonableness’ as a civic virtue, and by comparing three different approaches to the issue of reasonable disagreement among democratic citizens, it defends the deliberative approach as the most suited for treating fellow citizens as autonomous agents. The last two chapters focus on the importance, for an act of civil disobedience, of the agent’s willingness to accept the legal consequences of her law-breaking behaviour. It is argued that a civil disobedient has an obligation to face the prospect of being punished for the breach of the law. However, in considering the behaviour of a virtuous civil disobedient who appears at her criminal trial, it is also claimed that she should plead not guilty and aim to persuade her fellow citizens that she does not deserve to be punished, because what she did does not constitute a criminal wrong. In doing so, this thesis depicts civil disobedience not as a merely permissible form of behaviour, but as a morally praiseworthy conduct within a democratic community. (shrink)