The purpose of this paper is not to define civil disobedience, but to identify a paradigm case of civil disobedience and the features exemplified in it. After noting the benefits of this methodological approach, the paper proceeds with an examination of two key, interconnected features: conscientiousness and communication. First, a link is made between the conscientious aspect of civil disobedience and moral consistency; a civil disobedient demonstrates a conscientious commitment to certain values through her willingness to condemn, and to dissociate (...) herself from, governmental decisions that violate those values. A parallel is then drawn between the communicative aspect of civil disobedience and the communicative aspect of lawful punishment by the state. Both practices are associated with an aim to demonstrate protest against certain types of conduct and an aim to bring about a change in that conduct. In paradigm situations, a civil disobedient aims to lead policymakers not only to reform existing law, but also to internalise her objections so as to produce a lasting change in the law. Having such aims places some constraints upon the modes of communication that she reasonably may use to achieve these aims. This paper concludes by considering three controversial modes of communication -- coercion, publicity and violence. (shrink)

In recent years, a number of philosophers and social scientists have argued in favor of or against retributive theories of criminal punishment based on empirical findings about folk punitive judgment and decision-making. In this paper, we will argue that these arguments do not succeed. We will raise two objections. First, there are serious gaps between the empirical findings these authors cite and the descriptive premises these findings are meant to support. Second, in many cases, the existing research does not support (...) the specific empirical claims that feature in these arguments. Specifically, a large part of the existing psychological research and some philosophers claim that people are mainly driven by retributive motives. We will show that a large portion of the empirical research is not designed in a way to specifically test this claim, and to the extent that some studies are able to investigate this claim, we show that the evidence suggests that people are motivated by a variety of concerns, including consequentialist motives. We discuss possible responses and implications for the philosophy of criminal punishment, and provide suggestions for improved study designs. (shrink)

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)

Strawson's view on punishment has been either neglected or recoiled from in contemporary scholarship on ‘Freedom and Resentment’ (FR). Strawson's alleged retributivism has made his view suspect and troublesome. In this article, we first argue, against the mainstream, that the punishment passage is an indispensable part of the main argument in FR (section 1) and elucidate in what sense Strawson can be called ‘a retributivist’ (section 2). We then elaborate our own hypothesis of symbolic retribution to explain the continuum between (...) moral reactive attitudes and punishment that Strawson only adumbrates (section 3). After this justification of the punitive response to wrongdoing, we compare and contrast our specific kind of retributivist hypothesis with other positions in the so-called ‘new retributivism’ (section 4). Our hypothesis differs from other subvarieties of expressive retributivism in putting centre stage the idea of punishment as taking up a reverential stance towards the victim. (shrink)

Criminal justice systems have traditionally relied heavily on human decision-making, but new technologies are increasingly supplementing the human role in this sector. This paper considers what general limits need to be placed on the use of algorithms in sentencing decisions. It argues that, even once we can build algorithms that equal human decision-making capacities, strict constraints need to be placed on how they are designed and developed. The act of condemnation is a valuable element of criminal sentencing, and using algorithms (...) in sentencing – even in an advisory role – threatens to undermine this value. The paper argues that a principle of “meaningful public control” should be met in all sentencing decisions if they are to retain their condemnatory status. This principle requires that agents who have standing to act on behalf of the wider political community retain moral responsibility for all sentencing decisions. While this principle does not rule out the use of algorithms, it does require limits on how they are constructed. (shrink)

I aspire to answer two questions regarding the concept of a corrective duty. The first concerns what it means to wrong others, thus triggering a demand for corrections (the ground question). The second relates to the proper content of corrective duties. I first illustrate how three prominent accounts of corrective duties—the Aristotelian model of correlativity, the Kantian idea that wronging corresponds to the violation of others’ right to freedom, and the more recent continuity view—have failed to answer the two questions (...) satisfactorily. I then introduce my proposal, which holds that we wrong others when we fail to treat their status as moral agents as a source of stringent constraints on our action. I call it the moral neglect account. Once we have identified a common aim of corrective duties (counterbalancing moral neglect), we can fill their content in the various contexts in which wronging has occurred. I conclude by observing that it is not the primary role of corrective justice to assign responsibilities for damage reparations; in fact, requests for compensation make more sense if framed in distributive rather than corrective terms. (shrink)

As artificial intelligence becomes more sophisticated and robots approach autonomous decision-making, debates about how to assign moral responsibility have gained importance, urgency, and sophistication. Answering Stenseke’s (2022a) call for scaffolds that can help us classify views and commitments, we think the current debate space can be represented hierarchically, as answers to key questions. We use the resulting taxonomy of five stances to differentiate—and defend—what is known as the “blank check” proposal. According to this proposal, a person activating a robot could (...) willingly make themselves answerable for whatever events ensue, even if those events stem from the robot’s autonomous decision(s). This blank check solution was originally proposed in the context of automated warfare (Champagne & Tonkens, 2015), but we extend it to cover all robots. We argue that, because moral answerability in the blank check is accepted voluntarily and before bad outcomes are known, it proves superior to alternative ways of assigning blame. We end by highlighting how, in addition to being just, this self-initiated and prospective moral answerability for robot harm provides deterrence that the four other stances cannot match. (shrink)

Recent artificial intelligence advances, especially those of large language models (LLMs), have increasingly shown glimpses of human-like intelligence. This has led to bold claims that these systems are no longer a mere “it” but now a “who,” a kind of person deserving respect. In this paper, I argue that this view depends on a Cartesian account of personhood, on which identifying someone as a person is based on their cognitive sophistication and ability to address common-sense reasoning problems. I contrast this (...) with a different account of personhood, one where an agent is a person if they are autonomous, responsive to norms, and culpable for their actions. On this latter account, I show that LLMs are not person-like, as evidenced by their propensity for dishonesty, inconsistency, and offensiveness. Moreover, I argue current LLMs, given the way they are designed and trained, cannot be persons—either social or Cartesian. The upshot is that contemporary LLMs are not, and never will be, persons. (shrink)

Lisa Tessman (2016: 164) recounts the case of a Jewish mother, running from Nazis, who faced a terrible choice. She could (a) drown her infant, or (b) accept the virtual certainty that her baby’s cries would doom the refugee group she was fleeing with. Given those options, (b) is worse. If the whole group is discovered, many will die, including the infant. Still, preemptively drowning a baby—indeed one’s own baby—is a terrible act. To make sense of cases like this, Tessman (...) turns to the concept of moral failure: an act that violates an important moral value such that the loss cannot be fully redeemed by gains elsewhere. I will argue that criminal justice needs a moral framework like Tessman’s. It needs to make sense of the fact that some options are genuinely better than others, without letting honorifics like ‘justice’ obscure the equally important fact the best available option might be terrible. More specifically, I will argue that when punishment involves prison, as it often does, it is a moral failure. It can be justified only in the sense that preemptively drowning an infant can be justified: like the fleeing mother, society might on some terrible occasions find itself with no better alternative. (shrink)

In this chapter, I consider contemporary consequentialist theories of punishment. Consequentialist theories of punishment look to the consequences of punishment to justify the institution of punishment. Two types of theories fall into this category—teleology and aggregationism. I argue that teleology is implausible as it is based on a problematic assumption about the fundamental value of criminal punishment, and that aggregationism provides a more reasonable alternative. Aggregationism holds that punishment is morally justified because it is an institution that helps society to (...) aggregate important moral values. Several theories fall into this category, including general deterrence theories, specific deterrence theories, and preventionism. I critically evaluate these theories and argue that only one specific deterrence theory, namely, my rights-protection theory, provides the most reasonable consequentialist account of punishment. (shrink)

The novel coronavirus (SARS-CoV-2) pandemic has refocused attention on the issue of mandatory vaccination. Some have suggested that vaccines ought to be mandatory, while others propose more moderate alternatives, such as incentives. This piece surveys a range of possible interventions, ranging from mandates through to education. All may have their place, depending on circumstances. However, it is worth clarifying the options available to policymakers, since there is sometimes confusion over whether a particular policy constitutes a mandate or not. Further, I (...) illustrate a different kind of alternative to mandatory vaccination. Rather than seeking less coercive alternatives to a mandate, we might instead employ an alternative mandate, which requires people to do something less than get vaccinated. For instance, we might merely require people to attend an appointment at a vaccine clinic. Whether this mandatory attendance policy is justified will depend on specific circumstances, but it represents another way to promote vaccination, without mandating it. In some cases, this may represent an appropriate balance between promoting public health goals and respecting individual liberty. (shrink)

Why is it wrong to punish criminals who have been entrapped by the state? The paper begins by presenting some criticisms of existing answers to this question. First, they fail to put the target, or victim, of entrapment at the centre of the moral explanation. Second, they fail to account for the intuitive relation between the reasons not to entrap and the reasons not to punish. Third, they struggle to account for the existence of agent-neutral reasons not to punish entrapped (...) offenders. Lastly, they are ill-equipped to explain why entrapment seems problematic also outside the legal context. In response, the paper develops a novel account of entrapment: the Manipulation Account. According to this, entrapment always involves a particular kind of manipulation (manipulation-by-hidden-intentions) which morally taints punishment. In short, I suggest that both the initial entrapment and the subsequent punishment involve wrongful manipulation. Lastly, the paper presents some untraditional, but ultimately welcoming, implications of the account. (shrink)

Since the middle of the 20th century, philosophers and legal scholars have debated the precise definition of punishment. This chapter surveys the debate, identifies six potential conditions of punishment, and critically reviews each of them: 1) the response condition, which holds that punishment must be in response to wrongdoing, 2) the culpability condition, which holds that punishment must be of a person morally responsible for wrongdoing, 3) the authority condition, which holds that punishment must be imposed by a relevant authority, (...) 4) the hard treatment condition, which holds that punishment must impose hard consequences on the punishee, 5) the intentionality condition, which holds that punishment must be intentional, and 6) the censure condition, which holds that punishment must communicate disapproval. The article argues that it is often unclear that there is a version of the condition that provides optimal lexical fit. It discusses the implications of this analysis, and concludes that there may be less reason to worry about the lack of an authoritative definition than has sometimes been assumed, but that definitional clarity remains an objective worth pursuing. (shrink)

When it comes to how to hold people responsible for wrongdoing, much of the African philosophical tradition focuses on reconciliation as a final aim. This essay expounds an interpretation of reconciliation meant to have broad appeal, and then draws out its implications for responsibility in respect to three matters. First, when it comes to criminal justice, prizing reconciliation entails that offenders should be held responsible to “clean up their own mess,” i.e., to reform their characters and compensate victims in ways (...) they find burdensome, an approach to punishment that differs from deterrence and desert theories. Second, regarding civil justice, reconciliation means that holding responsible to compensate wrongful harm means improving victims’ quality of life in ways they accept, which contrasts with a common prescription to put victims in the condition they would have been in had the wrong not occurred. Third, reconciliation can involve putting on trial more than just the direct offender, for instance family members who had been able to influence his behavior and were allied with him. The chapter provides reason to take the reconciliatory approaches seriously that will be found prima facie attractive by those from a variety of backgrounds. (shrink)

Philosophy Compass, Volume 17, Issue 5, May 2022.

The notion of “responsibility gap” with artificial intelligence (AI) was originally introduced in the philosophical debate to indicate the concern that “learning automata” may make more difficult or impossible to attribute moral culpability to persons for untoward events. Building on literature in moral and legal philosophy, and ethics of technology, the paper proposes a broader and more comprehensive analysis of the responsibility gap. The responsibility gap, it is argued, is not one problem but a set of at least four interconnected (...) problems – gaps in culpability, moral and public accountability, active responsibility—caused by different sources, some technical, other organisational, legal, ethical, and societal. Responsibility gaps may also happen with non-learning systems. The paper clarifies which aspect of AI may cause which gap in which form of responsibility, and why each of these gaps matter. It proposes a critical review of partial and non-satisfactory attempts to address the responsibility gap: those which present it as a new and intractable problem (“fatalism”), those which dismiss it as a false problem (“deflationism”), and those which reduce it to only one of its dimensions or sources and/or present it as a problem that can be solved by simply introducing new technical and/or legal tools (“solutionism”). The paper also outlines a more comprehensive approach to address the responsibility gaps with AI in their entirety, based on the idea of designing socio-technical systems for “meaningful human control", that is systems aligned with the relevant human reasons and capacities. (shrink)

The principle of proportionality has gained widespread adherence in the modern retributively-dominated era of penal theory. It has often been held that, if one subscribes to a retributivist theory, then one is also committed to proportionality in punishment. In the present article, this assumption is challenged. It is shown that the inference from the fact that one offender has committed a more serious crime than another offender, to the conclusion that this offender should be punished more severely than the other, (...) presupposes the satisfaction of two conditions: The Necessity Requirement and the Sufficiency Requirement. It is argued that modern expressionist accounts of retributivism fail to satisfy these requirements. Moreover, it is suggested that the satisfaction of these requirements constitutes a challenge for other retributivist theories. In so far as this is the case, the inference from retributivism to proportionality will be blocked. (shrink)

Many philosophers think that punishment is intentionally harmful and that this makes it especially hard to morally justify. Explanations for the latter intuition often say questionable things about the moral significance of the intent to harm. I argue that there’s a better way to explain this intuition.

On varsin yleisesti hyväksyttyä, että rangaistuksen ilmaisullinen tehtävä - eli se, että se ilmaisee yhteisön paheksuntaa - on yksi sen ominaispiirre. Viime aikoina on kuitenkin esitetty myös kunnianhimoisempia väitteitä siitä, että rangaistuksen voisi oikeuttaa sen ilmaisullisella tehtävällä. Nämä näkemykset ovat myös saaneet runsaasti kritiikkiä. Tässä esseessä kehittelen aiemmin muotoilemaani versiota ekspressiivisestä rangaistusteoriasta, jonka mukaan asenteiden toiminnallinen ilmaisu rankaisemalla on oikeutettua siksi, että muuten rikoksen uhrilla ei ole hänelle kuuluvaa oikeudenhaltijan statusta. Jos ihmisen oikeuksia voi loukata rangaistuksetta, ne jäävät moraaliseksi ihanteeksi (...) eivätkä toteudu sosiaalisina tosiasioina. Esitän, että tämä näkemys välttää ainakin useimmat muille ilmaisuteorioille esitetyt haasteet. (shrink)

Civil disobedience, despite its illegal nature, can sometimes be justified vis-à-vis the duty to obey the law, and, arguably, is thereby not liable to legal punishment. However, adhering to the demands of justice and refraining from punishing justified civil disobedience may lead to a highly problematic theoretical consequence: the debilitation of civil disobedience. This is because, according to the novel analysis I propose, civil disobedience primarily functions as a costly social signal. It is effective by being reliable, reliable by being (...) costly, and costly primarily by being punished. My analysis will highlight a distinctive feature of civil disobedience: civil disobedients leverage the punitive injustice they suffer to amplify their communicative force. This will lead to two paradoxical implications. First, the instability of the moral status of both civil disobedience and its punishment to the extent where the state may be left with no permissible course of action with regard to punishing civil disobedience. Second, by refraining from punishing justified civil disobedience, the state may render uncivil disobedience—illegal political activities that fall short of the standards of civil disobedience—potentially permissible. (shrink)

Philosophers have highlighted a dilemma for the criminal law. Unjust, racist policies in the United States have produced conditions in which the dispossessed are more likely to commit crime. This complicity undermines the standing of the state to blame their offenses. Nevertheless, the state has reason to punish those crimes in order to deter future offenses. Tommie Shelby proposes a way out of this dilemma. He separates the state’s right to condemn from its right to punish. I raise doubts about (...) Shelby’s proposed resolution. So long as punishment is widely and reasonably understood to condemn crime, Shelby’s proposal does not resolve the dilemma. Moreover, there is reason to think the blaming aspect of punishment plays a role in the justification of its hard treatment. I conclude by considering some other ways out of the dilemma, focusing especially on how the United States might take responsibility for its complicity. (shrink)

Control accounts of moral responsibility argue that agents must possess certain capacities in order to be blameworthy for wrongdoing. This is sometimes thought to be revisionary, because reflection on our moral practices reveals that we often blame many agents who lack these capacities. This paper argues that Control accounts of moral responsibility are not too revisionary, nor too permissive, because they can still demand quite a lot from excused wrongdoers. Excused wrongdoers can acquire duties of reconciliation, which require that they (...) improve themselves, make reparations for the harm caused, and retract the meaning expressed in the original wrong. Failure to do these things expresses a lack of regard for the victims, and can make those wrongdoers appropriate targets of blame. (shrink)

It is widely believed that we ought not to criticize others for wrongs that we ourselves have committed. The author draws out and challenges some of the background assumptions about the practice of criticism that underlie our attraction to this claim, such as the tendency to think of criticism either as a social sanction or as a didactic intervention. The author goes on to offer a taxonomy of cases in which the moral legitimacy of criticism is challenged on the grounds (...) that the critic him- or herself engages in the behavior that he or she criticizes in others. The author argues that, in each type of case, the would-be critics should not constrain their participation in moral discourse on the grounds that they are not themselves innocent of the wrongdoing they criticize in others. (shrink)

Can compensation repair the moral harm of a previous wrongful act? On the one hand, some define the very function of compensation as one of restoring the moral balance. On the other hand, the dominant view on compensation is that it is insufficient to fully repair moral harm unless accompanied by an act of punishment or apology. In this paper, I seek to investigate the maximal potential of compensation. Central to my argument is a distinction between apologetic compensation and non-apologetic (...) compensation. Apologetic compensation, I argue, is an act that expresses regret and apology by means of some offer of money, goods, or services. Non-apologetic compensation is an act that seeks to restore loss or harm without expressing regret or apology. In the paper, I defend the view that acts of compensation can be apologetic and argue that such apologetic compensation is sufficient for moral repair. (shrink)

Recent years have seen the rise of ‘Just Culture’ as an ideal in the patient safety movement, with numerous hospitals and professional organisations adopting a Just Culture response to incidents ranging from non-culpable human error to intentional misconduct. This paper argues that there is a deep problem with the Just Culture model, resulting from its impoverished understanding of the value of punitive, fundamentally backward-looking, practices of holding people accountable. I show that the kind of ‘accountability’ and ‘punishment’ contemporary Just Culture (...) advocates endorse disrespects both patients and providers. I claim, first, that punishment is good because it respects participants in the healthcare system by restoring an equilibrium of social and moral status that wrongdoing disturbs, and, second, that it only does so when it communicates a backward-looking message of resentful blame. (shrink)

This paper examines the methodological claim made famous by P.F. Strawson: that we understand what features are required for responsible agency by exploring our attitudes and practices of holding responsible. What is the presumed metaphysical connection between holding responsible and being fit to be held responsible that makes this claim credible? I propose a non-standard answer to this question, arguing for a view of responsible agency that is neither anti-realist (i.e. purely 'conventionalist') nor straightforwardly realist. It is instead ‘constructivist’. On (...) the ‘Scaffolding View’ I defend, reactive attitudes play an essential role in developing, supporting, and thereby maintaining the capacities that make for responsible agency. While this view has relatively novel implications for a metaphysical understanding of capacities, its chief virtue, in contrast with more standard views, is providing a plausibly defensible account of how so-called responsible agents genuinely deserve to be treated as such. (shrink)

Gibt es rechtfertigende Gründe dafür, demente Menschen für ihre im früheren Zustand der Kompetenz begangenen Taten staatlich zu strafen? Im folgenden Beitrag wird für eine bejahende Antwort auf diese Frage plädiert. Zunächst werden drei zentrale Straftheorien daraufhin befragt, ob das von ihnen verteidigte Kriterium der Strafrechtfertigung in Anwendung auf die Bestrafung Dementer erfüllt, also die Bestrafung Dementer ihnen zufolge gerechtfertigt sein kann: die Retributionstheorie, die Präventionstheorie und die Expressionstheorie. Es zeigt sich, dass einzig der Expressionstheorie zufolge die Bestrafung Dementer gerechtfertigt (...) sein kann. Im Folgenden wird für die These argumentiert, dass die Expressionstheorie, obwohl nicht überzeugend als allgemeine Theorie der Strafrechtfertigung, in Bezug auf einen bestimmten Teilbereich von Strafhandlungen plausibel ist. Dabei handelt es sich um diejenigen Strafhandlungen, mit denen wir beabsichtigen, ein Leiden zuzufügen, die aber de facto kein Leiden bewirken. Da die Bestrafung Dementer in diese Klasse von Strafhandlungen fällt, lässt sie sich auf der Grundlage einer Expressionstheorie rechtfertigen. Vier Einwände gegen diese These werden diskutiert und entkräftet. Abschließend wird auf praktische Konsequenzen dieser Ansicht verwiesen. (shrink)

Does the moral status of an action provide in itself a non-instrumental, pro-tanto reason for a corresponding legal status – a reason that applies regardless of whether the law promotes a value that is independent of the law, such as preventing wrongdoing or promoting distributive or retributive justice? While the relation between morality and law is a familiar topic, this specific question is typically not considered explicitly. Yet it seems to be controversial and each of the contrasting answers to this (...) question has some appeal. The article highlights and considers this question. it concludes that the answer is negative: there is no necessary relation between morality and law in this respect. Rather, there is a reason in favor of incorporating morality into the law only when this incorporation promotes a moral value that is independent of the law. (shrink)

Up until recently, most legal philosophers have argued that an action is a token of sanctioning if, and only if, (i) its performance brings about unwelcome consequences to the targets, and (ii) it is performed as a response to the breach of a duty. In this paper I take issue with this account. I first add some qualifications to it in order to present it in its most plausible form. After doing this, I advance a series of hypothetical cases which (...) suggests that this account fails. I then propose a new account of sanctioning, whereby an action is a token of sanctioning if, and only if, it is performed in an appropriate context and is apt for punishing wrongdoers. (shrink)

David Boonin has recently advanced several challenges to the self-defense justification of punishment. Boonin argues that the self-defense justification of punishment justifies punishing the innocent, justifies disproportionate punishment, cannot account for mitigating excuses, and does not justify intentionally harming offenders as we do when we punish them. In this paper, I argue that the self-defense justification, suitably understood, can avoid all of these problems. To help demonstrate the self-defense theory’s attraction, I also develop some contrasts between the self-defense justification, Warren (...) Quinn’s better known ‘auto-retaliator’ argument, and desert-based justifications of punishment. In sum, I show that the self-defense justification of punishment is more resilient than commonly supposed and deserves to be taken seriously as a justification of punishment. (shrink)

This paper considers whether victims can justify what appears to be unnecessary defensive harming by reference to an honour-based justification. I argue that such an account faces serious problems: the honour-based justification cannot permit, first, defensive harming, and second, substantial unnecessary harming. Finally, I suggest that, if the purpose of the honour based justification is expressive, an argument must be given to demonstrate why harming threateners, as opposed to opting for a non-harmful alternative, is the most effective means of affirming (...) one’s honour. Along the way, I also suggest why I think that internalism about the constraints on defensive harming (the view that the satisfaction of the necessity constraint is a necessity condition of a threatener’s liability) is correct. Most importantly, externalism implies that threateners can be liable to suffer gratuitous harm. I take this to be an unattractive consequence of the view. (shrink)

It is sometimes thought that the normative justification for responding to large-scale violations of human rights via the judicial appararatus of trial and punishment is undermined by the desirability of reconciliation between conflicting parties as part of the process of conflict resolution. I take there to be philosophical, as well as practical and psychological issues involved here: on some conceptions of punishment and reconciliation, the attitudes that they involve conflict with one another on rational grounds. But I shall argue that (...) there is a conception of political reconciliation available which does not involve forgiveness and this forms of reconciliation may be the best we can hope for in many conflicts. Reconciliation is nevertheless likely to require the expression of what Darrell Moellendorf has called 'political regret' and the denunciatory role aspect of punishment makes it particularly well-suited to this role. (shrink)

Many philosophers hold that punishment has an expressive dimension. Advocates of expressive theories have different views about what makes punishment expressive, what kinds of mental states and what kinds of claims are, or legitimately can be expressed in punishment, and to what kind of audience or recipients, if any, punishment might express whatever it expresses. I shall argue that in order to assess the plausibility of an expressivist approach to justifying punishment we need to pay careful attention to whether the (...) things which punishment is supposed to express are aimed at an audience. For the ability of any version of expressivism to withstand two important challenges, which I call the harsh treatment challenge’ and the ‘publicity challenge’ respectively. will depend on the way it answers them. The first of these challenges has received considerable discussion in the literature on expressive theories of punishment; the second considerably less. This is unfortunate. For careful consideration of the publicity challenge should lead us to favor a version of the expressive theory which has been under-discussed: the view on which punishment has an intended audience, and on which the audience is society at large, rather than—as on the most popular version of that view—the criminal. Furthermore, this view turns out to be better equipped to meet the harsh treatment challenge, and to be so precisely because of the way in which it meets the publicity challenge. (shrink)

Advances in forensic techniques have expanded the temporal horizon of criminal investigations, facilitating investigation of historic crimes that would previously have been considered unsolvable. Public enthusiasm for pursuing historic crimes is exemplified by recent high-profile trials of celebrities accused of historic sexual offences. These circumstances give new urgency to the question of how we should decide which historic offences to investigate. A satisfactory answer must take into account the ways in which the passage of time can erode the benefits of (...) criminal investigation, the costs associated with investigating old crimes, and the need to prioritize investigations in the face of limited police resources. This article emphasizes the first of these factors. It begins by considering the moral goals of a criminal justice system and the contribution of criminal investigations to the achievement of these goals, distinguishing between contributions that depend on further steps in the criminal justice process, such as prosecution and punishment, and contributions that can have value independently of these further steps. Using this important distinction, the article then examines a range of factors that relate the passage of time to criminal justice goals, including the seriousness of the crime; deterioration of evidence; death of the offender, victim and others affected by the crime; and diminished psychological connectedness between those affected by the crime and their current selves. While the range and non-uniformity of relevant factors preclude a simple answer to the question of when historic crimes should be investigated and call instead for case-by-case assessment, we find that the analysis does support some general conclusions that can guide such an assessment. (shrink)

When Dominique Strauss-Kahn, then head of the IMF, was arrested on charges of sexual assault arising from events that were alleged to have occurred during his stay in an up-market hotel in New York, a sizeable portion of French public opinion was outraged - not by the possibility that a well-connected and widely-admired politician had assaulted an immigrant hotel worker, but by the way in which the accused had been treated by the American authorities. I shall argue that in one (...) relatively minor respect, Strauss-Kahn’s defenders were correct. They were correct to argue that the parading of Strauss-Kahn before the press, in handcuffs - the so-called perp walk - constituted a form of punishment; and thus that it contravened the principle that criminal punishments should only be administered after a fair trial. So-called ‘expressive’ theorists of punishment hold that a form of harsh treatment can only constitute a form of punishment if it has an expressive role. Within the expressive family, we can distinguish between views on which the primary target of the communication to be the society of which either offender, or victim, or both are members—what I call ‘Denunciatory Views’, and views which take the principle target of penal communication to be the offender—such as Antony Duff’s Communicative View. I shall argue that on both a minimal account of punishment and on either kind of expressive view, ‘perp walks’ are a form of punishment. (shrink)

This paper considers the justifiability of removing the right to vote from those convicted of crimes. Firstly, I consider the claim that the removal of the right to vote from prisoners is necessary as a practical matter to protect the democratic process from those who have shown themselves to be untrustworthy. Secondly, I look at the claim that offenders have broken the social contract and forfeited rights to participate in making law. And thirdly, I look at the claim that the (...) voting ban is essential part of the justified punishment of serious offenders. These arguments have in common the feature that they attempt to articulate the sense in which rights imply responsibilities, particularly that voting rights should be conditional on one’s having met one’s civic responsibilities. I argue that the only interpretation of this view that could justify prisoner disenfranchisement is that which thinks of disenfranchisement as fair and deserved retributive punishment for crime. Against widespread opposition to, and confusion about, the importance of retributive punishment, I offer a brief defence. However, I conclude that even if legitimate retributive purposes could in principle justify prisoner disenfranchisement, the significance of disenfranchisement is such that it should be reserved for the most serious crimes. (shrink)

What is forgiveness? When is it appropriate? Is it to be earned or can it be freely given? Is it a passion we cannot control, or something we choose to do? Glen Pettigrove explores the relationship between forgiving, understanding, and loving. He examines the significance of character for the debate, and revives the long-neglected virtue of grace.

Retributivists are often thought to give 'deontological' theories of punishment, arguing that we should punish not for the beneficial consequences of doing so such as deterrence or incapacitation, but purely because justice demands it. Kant is often regarded as the paradigmatic retributivist. In some passages Kant does appear to give a deontological theory of punishment. For example, Kant insists that on an island where all the people were to leave the next day, forever dissolving and dispersing the community, the last (...) murderer in jail would have to have his execution carried out before the diaspora--justice demands it. In other passages, however, Kant defends punishment by appealing to its beneficial consequences. For example, after supposing that one man on a life raft pushes the other off to save his own life, Kant says that the former man should not be legally punished "because that punishment would have to be death, and it would be an absurd law that threatened death to one who refuses to die voluntarily in a dangerous situation." In this passage Kant's reasoning is that state laws, by threatening us with sanctions, are intended to prevent us from violating rights--the point of these laws is to deter. A law that imposes a punishment that could not deter is an absurd law. I argue that while Kant rejects consequentialism in thinking about moral actions, he distinguishes law and morality, and in the sphere of law, an action we take is to be justified by appealing to the good it yields. The point of legal punishment is to deter violations of rights and protect us from a state of nature in which no one's freedom is assured. Kant's theory of legal (as opposed to moral) punishment is not deontological. Nevertheless we can characterize his consequentialist theory of legal punishment as retributive in some sense. The paper then considers how the passages about punishment in which Kant invokes consequentialist thinking can be reconciled with other passages where he insists on punishment regardless of the consequences. (shrink)

By what right, or under whose authority, do you try me? This is a common challenge raised by defendants standing trial in front of international criminal courts or tribunals. The challenge comes from the fact that traditionally criminal law is justified as a response of the state to wrongdoing that has been identified by the state as a crime. Nevertheless, since the early 1990s we have seen the development of international criminal tribunals that have the authority to judge certain crimes. (...) This article examines the moral foundation for the authority of international tribunals, arguing that it can be grounded on delegation of powers from the states with primary jurisdiction. The first part of the article examines whether there is any problem, as a matter of principle, in founding the courts’ jurisdictional authority on delegation of powers. It will argue that contrary to David Luban’s view, there is no inherent problem with states delegating their power to punish to other states or to international tribunals. Nevertheless, in making such a decision the ability of the court to provide fair process—a necessary requirement for the court’s ability to issue authoritative decisions—should be taken into account. The second part of the article takes the ICC as a case study and examines whether its jurisdiction can be grounded on delegation of powers. It will be shown that the court’s jurisdiction can indeed be founded on both direct and indirect delegation of jurisdiction from states with primary jurisdiction. This conclusion suggests that other international tribunals created by either multilateral treaties or by Security Council decisions may also be founded on similar grounds. (shrink)

After distinguishing different species of Legal Moralism I outline and defend a modest, positive Legal Moralism, according to which we have good reason to criminalize some type of conduct if it constitutes a public wrong. Some of the central elements of the argument will be: the need to remember that the criminal law is a political, not a moral practice, and therefore that in asking what kinds of conduct we have good reason to criminalize, we must begin not with the (...) entire realm of wrongdoing, but with conduct falling within the public realm of our civic life; the need to look at the different processes of criminalization, and to ask what kinds of consideration can properly figure in those processes; the need to attend to the relationship, and the essential differences, between criminal law and other modes of legal regulation. (shrink)

Some legal theorists deny that states can conceivably act extra-legally, in the sense of acting contrary to domestic law. This position finds its most robust articulation in the writings of Hans Kelsen, and has more recently been taken up by David Dyzenhaus in the context of his work on emergencies and legality. This paper seeks to demystify their arguments and, ultimately, contend that we can intelligibly speak of the state as a legal wrongdoer or a legally unauthorized actor.

Unquestionably, Restorative Justice (hereafter RJ) has finally gathered some real momentum. It has become a sine qua non topic in many national and international policy and statutory agendas. However, as the restorative practice expands to deal with crimes, ages and situations it has never addressed before (at least in its contemporary version), and as its application starts to make sense not only to national but also to regional and international bodies and fora, new theoretical problems are posed. In the fast-growing (...) literature many theories and Schools have been evoked to support RJ's claims. This paper will take the discussion a step back by looking at questions of meta-theoretical character. In particular, the paper will ask: Does RJ have a place in the “world of theories,” and if it does, then what kind of theory is it, and on what level should it be placed? Second, does RJ theory need a philosophy, and why? Finally, how can restorative practices be morally justified? (shrink)

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)

I criticize an increasingly popular set of arguments for the justifiability of punishment. Some philosophers try to justify punishment by appealing to what Peter Strawson calls the reactive attitudes – emotions like resentment, indignation, remorse and guilt. These arguments fail. The view that these emotions commit us to punishment rests on unsophisticated views of punishment and of these emotions and their associated behaviors. I offer more sophisticated accounts of punishment, of these emotions and of their associated behaviors that are consistent (...) with Abolitionism, the view that punishment is unjustified. (shrink)