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)

_Historical and contemporary philosophical writings on punishment._.

Some legal theorists deny that states can conceivably act extralegally 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.

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)

I argue that legal punishment is morally wrong because it’s too morally risky. I first briefly explain how my argument differs from similar ones in the philosophical literature on legal punishment. Then I explain why legal punishment is morally risky, argue that it’s too morally risky, and discuss objections. In a nutshell, my argument goes as follows. Legal punishment is wrong because we can never sufficiently reduce the risk of doing wrong when we legally punish people. We can never sufficiently (...) reduce this risk because wrongful punishment is much worse than wrongful non-punishment and because punishment’s permissibility depends on the answers to a variety of difficult philosophical questions about which we’re fallible. (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)

There has been recent speculation that some animals are moral agents. Using a retributivist framework, I argue that if some animals are moral agents, then there are circumstances in which some of them deserve punishment. But who is best situated to punish animal wrongdoers? This paper explores the idea that the answer to this question is humans.

State agents’ misconduct (SAM), such as the violations carried out by the police or prosecution, may harm an offender’s rights during the criminal process in various ways. What, if anything, can retributivism, as an offense-focused theory that looks to the past, offer in response to SAM? The goal of this essay is to advance a retribution-based framework for responding to SAM within the criminal process. Two retribution-based arguments are provided. First, a retribution-based response to SAM aims to protect the legitimacy (...) of the criminal process. Such an argument is based on how the crime and punishment connect to the moral standing of the state and that connection’s meaning for the legitimacy of the trial (legitimacy-based argument). Second, a retribution-based response to SAM aims to consider the offender’s side of the penal dialogue and promote a more accurate calibration of the penal suffering (compensation-based argument). Based on these arguments, the essay theorizes the legal response for SAM in US and non-US traditions through the retributive lens. The essay concludes with a call for expanding the multiple roles for retributive logic to include the actions of law-enforcement actors and addresses what that expansion means for the justice of the criminal process. (shrink)

Many philosophers and legal theorists worry about punishing the socially disadvantaged as severely as their advantaged counterparts. One philosophically popular explanation of this concern is couched in terms of moral standing: seriously unjust states are said to lack standing to condemn disadvantaged offenders. If this is the case, institutional condemnation of disadvantaged offenders (especially via hard treatment) will often be unjust. I describe two problems with canonical versions of this view. First, its proponents groundlessly claim that disadvantaged offenders may be (...) punished as severely as advantaged ones, even though such punishment is unjust in light of the state’s loss of standing. Second, and more importantly, moral standing arguments prohibit states from blaming advantaged as well as disadvantaged offenders. This unwelcome outcome suggests that standing approaches incorrectly analyze the source of moral misgivings about punishing the disadvantaged. I conclude that those who share such concerns should put standing accounts aside. (shrink)

Many philosophers and legal theorists worry about punishing the socially disadvantaged as severely as their advantaged counterparts. One philosophically popular explanation of this concern is couched in terms of moral standing: seriously unjust states are said to lack standing to condemn disadvantaged offenders. If this is the case, institutional condemnation of disadvantaged offenders (especially via hard treatment) will often be unjust. I describe two problems with canonical versions of this view. First, its proponents groundlessly claim that disadvantaged offenders may be (...) punished as severely as advantaged ones, even though such punishment is unjust in light of the state’s loss of standing. Second, and more importantly, moral standing arguments prohibit states from blaming advantaged as well as disadvantaged offenders. This unwelcome outcome suggests that standing approaches incorrectly analyze the source of moral misgivings about punishing the disadvantaged. I conclude that those who share such concerns should put standing accounts aside. (shrink)

In a paper published in 2006, I argued that the best way of defending something like our current practices of punishing war criminals would be to base the justification of this practice on an expressive theory of punishment. I considered two forms that such a justification could take—a ‘denunciatory’ account, on which the purpose of punishment is supposed to communicate a commitment to certain kinds of standard to individuals other than the criminal and a ‘communicative’ account, on which the purpose (...) of the punishment is to communicate with the perpetrator, and argued for a denunciatory account which I developed at some length. In this paper I would like to reconsider the plausibility of a communicative account. One difficulty that such accounts face is that the punishment of war criminals often involves the inflicting of harsh treatment on them by individuals who are members of states other than their own. On a communicative account this is problematic: on such an account—or at least on the version of it proposed by Duff (2000)—it is essential that those who are punish and those who punish them belong to a single community. When this requirement is not satisfied harsh treatment does not constitute punishment. Duff has argued that the problem can be solved by regarding all human beings as members of a single moral community: here I argue that this suggestion is unsatisfactory and propose an alternative. One consequence of my account is that if it is correct there may limitations on the range of kinds of war criminal that can legitimately be punished by international tribunals. (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)

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)

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)

A companion to 'Punishment: Consequentialism' and 'Punishment: Nonconsequentialism', which examine attempts to justify punishment as a state institution, this paper considers possible alternatives to punishment. On the assumption that there are two elements to punishment, an element of condemnation and of hard treatment, the paper considers, first, the alternative of condemnation without hard treatment, and secondly, of hard treatment without condemnation. The paper then looks ahead to possible developments in thinking and theorising about punishment.

A companion to ‘Punishment: Consequentialism’, and also ‘Punishment: The Future’, this paper examines various nonconsequentialist attempts to justify punishment, that is, attempts that appeal to claims concerning the innate worth or intrinsic character of punishment, quite apart from any consequential good or benefit punishment may be thought to produce. The paper starts with retributive theories, and turns then to the denunciation and expressive theories, before considering combined communicative–retributive theories.

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)

: After defining a hate crime as an offense in which the criminal selects the victim at least in part because of an animus toward members of the group to which the victim belongs, this essay surveys the standard justifications for state punishment en route to defending the permissibility of imposing stiffer penalties for hate crimes. It also argues that many standard instances of rape and domestic battery are hate crimes and may be punished as such.

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)

The article discusses the link between freedom, crime and punishment. According to some theorists, crime does not only cause a person to have less freedom; it constitutes, _in and of itself_, a breach of the freedom of others. Punishment does not only cause people to have more freedom, for instance by preventing crimes; it constitutes, _in and of itself_, respect for mutual freedom. If the latter claims are true, crime and punishment must have certain _meanings_ that make them denials/affirmations of (...) freedom irrespective of their consequences. My aim is to show that such an immanent connection between crime/punishment and freedom exists. I do so by explicating the “natural meaning” of crime and punishment. This way of addressing the topic is inspired by Jean Hampton’s use of H. P. Grice’s concept of natural meaning. Expanding on Hampton’s theory, drawing on both H. L. A. Hart and Kant, I argue that crime has the natural meaning of denying freedom, and punishment has the natural meaning of affirming freedom. The paper presents an ideal theory, not a justification for actual criminal justice practices, which in most countries unfortunately fail to instantiate the value of mutual freedom. (shrink)

Both legal and moral theorists have offered broadly “communicative” theories of criminal and moral responsibility. According to such accounts, we can understand the nature of responsibility by appealing to the idea that responsibility practices are in some fundamental sense expressive, discursive, or communicative. In this essay, I consider a variety of issues in connections with this family of views, including its relationship to free will, the theory of exemptions, and potential alternatives to the communicative model. Focusing on Michael McKenna’s Conversation (...) and Responsibility, I argue that communicative accounts, and the conversational model in particular, direct our attention to important and under-appreciated elements of our responsibility practices. However, rather than focusing on a model of conversation-as-address, as McKenna does, we do better to regard gossip as the paradigmatic conversational form that captures the main features of moral responsibility. (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 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)

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.

In this article, I ask whether the state, as opposed to its individual members, can intelligibly and legitimately be criminalized, with a focus on the possibility of its domestic criminalization. I proceed by identifying what I take to be the core objections to such criminalization, and then investigate ways in which they can be challenged. First, I address the claim that the state is not a kind of entity that can intelligibly perpetrate domestic criminal wrongs. I argue against it by (...) building upon an account of the modern state as a moral agent proper, capable of both culpable moral and legal wrongdoing. I then consider objections to the intelligibility and legitimacy of subjecting states to domestic criminal processes, which primarily find their source in the assumption that such subjection would necessarily involve the state prosecuting, judging, and punishing itself. I argue that whether this (questionable) assumption is sound or not, it does not create the kinds of unsolvable quandaries its exponents think it does. I then move on to reject the distinct, yet related, objection that, at least in aspiring liberal jurisdictions, treating the state as a criminal objectionably involves extending to it various substantive and procedural guarantees that, given its nature and raison d’être, it should not have. Finally, I discuss three central objections to punishing the state. First, that organizations like states do not have the phenomenal consciousness required to suffer punishment. Second, that the constant possibility of dispersion of state punishment amongst individual members stands in the way of its justification. Lastly, that whatever justification there may be for making things harder for the state in response to its culpable wrongdoing, such treatment need not be understood as punishment. While partially conceding the strength of these objections, I strive to loosen their grip in ways that show that justified punishment of the state, meaningfully understood as such, remains a distinct possibility. I conclude by contrasting supposed alternatives to the criminalization of states, and by contending that my analysis leaves us with enough to keep the possibility of state criminalization on the table as a justifiable response to state wrongdoing. (shrink)

In The Limits of Blame, Erin Kelly argues that we should purge our thinking about criminal justice of notions of moral desert and blameworthiness. Her targets are retributivist theories of punishme...

A distinctive theory of punishment plays a central role in Smith's moral and legal theory. According to this theory, we regard the punishment of a crime as deserved only to the extent that an impartial spectator would go along with the actual or supposed resentment of the victim. The first part of this paper argues that Smith's theory deserves serious consideration and relates it to other theories such as utilitarianism and more orthodox forms of retributivism. The second part considers the (...) objection that, because Smith's theory implies that punishment is justified only when there is some person or persons who is the victim of the crime, it cannot explain the many cases where punishment is imposed purely for the public good. It is argued that Smith's theory could be extended to cover such cases. The third part defends Smith's theory against the objection that, because it relies on our natural feelings, it cannot provide an adequate moral justification of punishment. (shrink)

In this paper I am specifically concerned with a normative assessment, from the perspective of a principled criminal law theory, of norms criminalizing illegal immigration. The overarching question I will dwell on is one specifically regarding the way of using criminal law which is implied in the enactment of such kinds of norms. My thesis will essentially be that it constitutes a veritable abuse of criminal law. In two senses at least: first, in the sense that by criminalizing illegal immigration (...) criminal law puts a ban on (certain categories of) persons, rather than on their actions/omissions, in a way in which a principled criminal law should not do; and—second—in the sense that the criminalization of illegal immigrants represents a perversion of the criminal law, being a case in which criminal norms are (unjustifiably) used as means to attain extrapenal aims. (shrink)

The subprime mortgage crisis which was caused to a large degree by questionable mortgage lending and securitization practices that were furthered by deregulatory policies devastated the economy, led to large scale unemployment, and caused the foreclosure of millions of homes. There is evidence that numerous mortgage companies, financial firms, rating agencies, and high-level professionals were involved in unethical and often fraudulent business practices leading to the most severe economic meltdown since the Great Depression. In spite of the great economic and (...) social harm, there was a lack of criminal sanctions against those companies and individuals, who were involved in creating the crisis that reached even global dimensions. This article analyses the reasons for and the possible social impacts of the lack of criminal sanctions against those who crossed the line between unethical and criminal business practices. (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)

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)

The orthodox reading of Peter Strawson's “Freedom and Resentment” tends to hide interesting elements of its underlying argumentative structure. Recognition of a distinction Strawson draws between two classes of reactive attitudes raises a question about how the distinct discussions are related. The orthodox reading seems to assume the only relevant difference between the two classes is one of perspective; however, this reading obscures the analogical nature of Strawson's argument and encourages a conflation of distinct elements within that argument. In this (...) paper, I show that an analogical interpretation of the relationship between the distinct classes of attitudes reveals differences between them that have interesting implications for the secondary literature that has developed around Strawson's famous essay. (shrink)

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)

This paper proposes a retributive argument against punishment, where punishment is understood as going beyond condemnation or censure, and requiring hard treatment. The argument sets out to show that punishment cannot be justified. The argument does not target any particular attempts to justify punishment, retributive or otherwise. Clearly, however, if it succeeds, all such attempts fail. No argument for punishment is immune from the argument against punishment proposed here. The argument does not purport to be an argument only against retributive (...) justifications of punishment, and so leave open the possibility of a sound non-retributive justification of punishment. Punishment cannot be justified, the paper argues, because it cannot be demonstrated that any punishment, no matter how minimal, is not a disproportionate retributive response to criminal wrongdoing. If we are to hold onto proportionality—that is, proportionality as setting a limit to morally permissible punishment—then punishment is morally impermissible. The argument is a retributive argument against punishment insofar as a just retributive response to wrongdoing must be proportionate to the wrongdoing. The argument, that is, is concerned with proportionality as a retributive requirement. The argument against punishment is set out on the basis of a familiar version of the ‘anchoring problem’, according to which it is the problem of determining the most severe punishment to anchor or ground the punishment scale. To meet the possible criticism that we have chosen a version of the anchoring problem particularly favourable to our argument, various alternative statements of the anchoring problem are considered. Considering such statements also provides a more rounded view of the anchoring problem. One such alternative holds that the punishment scale must be anchored not just in the most severe punishment, but in the least severe punishment as well. Other alternatives hold that it is necessary and sufficient to anchor the punishment scale in any two punishments, neither of which needs to be the most or least severe punishment. A further suggestion is that one anchoring point anywhere along the punishment scale is sufficient, because it is possible to ‘project’ from such a point, so as to determine the correlative punishments for all other crimes, and so derive a complete punishment scale. Finally, the suggestion is considered that one can approach the issue of a punishment scale ‘holistically’, denying any distinction between anchoring and derived (or ‘projected’) punishments. (shrink)

The emotions of shame and guilt have recently appeared in debates concerning legal punishment, in particular in the context of so called shaming and guilting penalties. The bulk of the discussion, however, has focussed on the justification of such penalties. The focus of this article is broader than that. My aim is to offer an analysis of the concept of legal punishment that sheds light on the possible connections between punishing practices such as shaming and guilting penalties, on the one (...) hand, and emotions such as guilt, shame, and perhaps humiliation, on the other. I␣contend that this analysis enhances our understanding of the various theories of punishment that populate this part of criminal law theory and thereby sharpens the critical tools needed to assess them. My general conclusion is that, in different ways, all of the theories we encounter in this area can benefit from paying renewed attention to the nature of the connection between the state’s act of punishing and its expected or perceived emotional effect on the individual. (shrink)

La pregunta que exploro en este trabajo es si la injusticia social puede socavar la autoridad moral de la sociedad para castigar al que delinque. La respuesta a esta pregunta depende esencialmente de cuál sea la teoría justificatoria del castigo penal de la que se parte. Analizo diversas teorías de la pena, entre ellas la teoría consensual de Carlos Nino. Mi objetivo es explorar de qué modo las diferentes teorías de la pena enfrentan el desafío que plantea la pregunta y (...) extraer algunas conclusiones tentativas de ese recorrido. The question I address in this paper is whether social injustice can undermine the moral authority of society to punish criminals. The answer to this question crucially depends on the underlying justificatory theory of punishment. I consider several theories, among them the consensual theory proposed by Carlos Nino. My aim is to explore how different theories of punishment address the challenge and to draw some tentative conclusions. (shrink)

Recently the CJEU decision in the case of ‘Ewa Glawischnig-Piesczek v. Facebook Ireland Limited’ has raised the issue of the transcultural/trans-territorial signification of hate speech and hate crimes. Taking a cue from this decision and the related semiotic/legal implications, the paper proposes an analysis of the semio/pragmatic conditions for the production of performativity inherent in hate speech across different cultural universes of discourse. Given that web-based digital communication is global—at least, potentially—regardless of any spatial/political compartmentalization, it crosses different semio-cultural circuits. (...) This trans-spatiality implies transcultural crossings that can multiply and even transfigure the semantic implications of the original signifier and the related prognoses of ‘semantic effectiveness.’ Cultural boundaries therefore may function as a kind of ‘horizon of events’ for hate speech and, more inclusively, all linguistic acts and their legal signification/classification. The question then arises regarding whether and to what extent the performativity of hate speech is able to withstand the variation of cultural boundary conditions. Insofar as cultures are universes of experience, the issue to be investigated broadens, and ends up invoking the question of whether or not the production of performativity implicitly presupposes and tacitly epitomizes the semio-pragmatic implications/consequences (or, in Peircean terms, ‘bearings’) coextensive with cultural universes of experience. Were this the case, it would seem to call into question the very possibility of ‘making things only with words,’ or more explicitly, the alleged meaning of ‘linguistic acts.’. (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)

To what extent is any individual morally obligated to live environmentally sustainably? In answering this, I reject views I see as constituting two extremes. On one, it depends entirely on whether there exists a collective agreement; and if no such agreement exists, no one is obligated to reduce her/his consumption or pollution unilaterally. On the other, the lack of a collective agreement is morally irrelevant, and regardless of what others are doing, each person is obligated to limit her/his pollution and (...) consumption to a level that would be sustainable if everyone were to act in this way. I argue that the truth is somewhere between these, but that a very precise specification of the extent of one's responsibility is impossible. Roughly, what can be said is that each individual ought constantly to strive to do more than she/he does currently and to push her/himself into new, uncomfortable territory, though no one is obligated to martyr her/himself for an environmental cause. (shrink)

In Punishment and the Moral Emotions, Jeffrie Murphy rejects his earlier, strong endorsements of retributivism. Questioning both our motivations for embracing retributivism and our views about the basis of desert, he now describes himself as a “reluctant retributivist.” In this essay, I argue that Murphy should reject retributivism altogether. Even if we grant that criminals have negative desert, why should we suppose that it is desert of suffering? I argue that it is possible to defend desert-based theories of punishment that (...) reject this view of the object of desert. I consider, but reject, expressivist versions of such a theory. (shrink)

In her recent book The Limits of Blame, Erin Kelly argues that we should rethink the nature of punishment because delivering blame is, contrary to the widely held view, not among the justifiable aims of a criminal justice system. In this paper, firstly, I discuss her case against criminal blame. Kelly argues that the emphasis on blame in the criminal justice system and in public discourse is one of the main causes of the stigma and exclusion faced by those convicted (...) for a crime. This claim might appear puzzling and, while she provides other convincing arguments against criminal blame, Kelly does not extensively defend this particular argument. To offer support for this view, I reflect on the often overlooked distinction between moral blame and criminal blame to show how the latter, unlike the former, is exclusionary and stigmatising. Secondly, I address the claim put forth by Kelly that blame should play no role in the criminal justice system at all. In light of her argument about the optional nature of moral blame, I explore the possibility that the state should leave open to victims the option to blame criminal wrongdoers in restorative justice conferences. I argue that in such contexts blame would not have the same exclusionary features of criminal blame in traditional settings and that it could serve some valuable aims articulated by communicative theories of punishment, such as the restoration of moral relationships. (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)

Certainly principles of criminal liability may be understood as rules or norms outlining orders or prohibitions and standing out among other norms with their weight, for legal culture, legal doctrine, etc. In such a classic approach they are norms defining basic rights and obligations in the applicable criminal law. However, is it the only possible and cognitively interesting meaning of the word “principle” in jurisprudence? From the semiotic point of view, they can occur in three forms: special-kind norms, teleological directives, (...) rules which constitute valid performance of conventional activities. In an extra-directival sense these principles may be understood as models-descriptions of shaping the system of criminal law. From a theoretical and practical point of view principles addressed to the legislator are extremely weighty—they can be called rules constructing the system of criminal liability. These all problems are discussed in the article. (shrink)

Theorists of criminal law widely agree that state punishment involves harsh treatment and stigma and that states must therefore provide protections for targeted individuals. But certain regulatory...