The First Amendment gives U.S. citizens a Hohfeldian legal immunity that disables Congress from removing citizens’ legal liberty to criticize the government. Any attempt by Congress to remove this liberty would fail, but such an attempt would still wrong citizens. The familiar concept of claim-violation does not fully account for this wrong. Claims name actions that ought not be performed and are violated when those actions are performed. Immunities names actions that cannot be performed. Congress would wrong citizens not by (...) doing something it ought not do but by attempting and failing to do something it cannot do. Using elements of Jean Hampton’s expressive theory of punishment, I analyze Congress’ attempt as an expressive act that denies the existence of immunities. Congress’ immunity-“contradiction” would wrong U.S. citizens by denying the value that generates the immunity, by causing damage to the acknowledgement of the citizens’ value, and by threatening the existence of the immunity. (shrink)

In this paper, I consider the question of whether crime victims can be said to have a moral right to see their victimizers punished that could explain why they often feel wronged or cheated when the state fails to punish offenders. In the first part, I explain what I mean by a “right to punishment” and what it is for such a right to “explain” the frustrated crime victim’s reaction. In the second part, I distinguish such a right from a (...) Lockean-style right to punish, which is also shown incapable of providing the needed explanation. In the third part I argue that it is difficult to identify any benefit such that the right to punishment could plausibly be understood as a right to that benefit. I discuss two main candidates here: the vaguely Hegelian idea that punishment is itself some sort of restitution for the wrong done to the victim; and the idea, due to Victor Tadros, that punishment is a form of compensation for wrongdoing by contributing indirectly to protecting victims from future harm. In the final section, I suggest instead that the frustrated crime victim’s reaction, when justified, is best explained, not by the violation of any right to punishment, but rather by the state’s failure to treat the victim as an equal. (shrink)

In this article, I argue that Hegel's complete and mature view of crime and punishment is more robust than many interpretations of the Unrecht passage in the ‘Abstract Right’ section of Hegel's Elements of the Philosophy of Right suggest. First, I explain the value of revisiting the interpretation of Hegel as a simple retributionist in the contemporary debate. Then, I look at Hegel's treatment of crime and punishment in the section on abstract right to show the role of punishment in (...) Hegel's account. Next, I argue that this needs to be situated in Hegel's broader social philosophy and that we can accomplish this by looking at how the Unrecht passage fits in the Elements of the Philosophy of Right’s dialectical structure. I do so by building on the sections on civil society and state in the part of Elements of the Philosophy of Right dealing with ethical life (Sittlichkeit), which include considerations of prevention and rehabilitation. I contend that this analysis reveals an account of punishment as more complicated than simple retribution. (shrink)