This article concerns the problems of proportionality in the theory of punishment. The problem is how to determine whether the severity of a punishment for a criminal offense is proportional to the seriousness of that offense. The resolution to this problem proposed in the article is that, first, one understand punishment as pain or loss intentionally and openly inflicted on someone S in retaliation for something S did, by a person or agent who is at least as powerful as S, (...) and, second, one take such retaliatory pain or loss as, within stable social groups, a means for preserving social order. Accordingly, it is argued that, on this proposal, the measure by which the severity of punishment is determined to be proportional to the seriousness of the crime for which it is inflicted is the minimal amount of pain or loss necessary to preserve social order. Sentencing policies that follow this measure, it is then observed, tend to yield less severe punishments than the policies that classical deterrence theory yields. Finally, the article offers an argument for regarding as morally more defensible sentencing policies whose goal is preserving social order than sentencing policies whose goal is that of classical deterrence theory, which is to achieve the smallest incidence of crimes consistent with not diminishing the overall welfare of society. (shrink)

Those who commit crime on a grand scale, numbering their victims in the thousands, seem to pose a special problem both for consequentialist and for non-consequentialist theories of punishment, a problem the International Criminal Court makes practical. This paper argues that at least one non-consequentialist theory of punishment, the fairness theory, can provide a justification of punishment for great crimes. It does so by dividing the question into two parts, the one of proportion which it answers directly, and the other (...) of ‘anchoring points’ which it assigns to a broader theory of enforcement (which may have a non-consequentialist or consequentialist version). (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)

This chapter outlines six distinct reasons for rejecting retributivism, not the least of which is that it’s unclear that agents possess the kind of free will and moral responsibility needed to justify it. It then sketches a novel non-retributive alternative called the public health-quarantine model. The core idea of the model is that the right to harm in self-defense and defense of others justifies incapacitating the criminally dangerous with the minimum harm required for adequate protection. The model also draws on (...) the public health framework and prioritizes prevention and social justice. It is argued that not only does the public health-quarantine model offer a stark contrast to retributivism, it also provides a more humane, holistic, and effective approach to dealing with criminal behavior, one that is superior to both retributivism and other leading non-retributive alternatives. (shrink)

_Historical and contemporary philosophical writings on punishment._.

In this paper we explore the relationship between forgiving and punishment. We set out a number of arguments for the claim that if one forgives a wrongdoer, one should not punish her. We then argue that none of these arguments is persuasive. We conclude by reflecting on the possibility of institutional forgiveness in the criminal justice setting and on the differences between forgiveness and acts of mercy.

In this paper we explore whether or not the use of risk assessment tools in criminal sentencing can be made compatible with a retributivist justification of punishment. While there has been considerable discussion of the accuracy and fairness of these tools, such discussion assumes that one’s recidivism risk is relevant to the severity of punishment that one should receive. But this assumption only holds on certain accounts of punishment, and seems to conflict with retributivist justifications of punishment. Drawing on the (...) broader desert literature, we explain the source of this conflict, and suggest that a retributivist approach on which the severity of punishment partly depends on one’s character in addition to their acts offers some hope of reconciling retributivism with the use of risk assessment tools in considerations of sentencing reduction in particular. Ultimately, however, even this limited attempt at reconciliation fails, so long as risk assessment tools fail to distinguish between risk that one is responsible for, and risk that one is not responsible for. (shrink)

This paper examines the commonplace assertion that utilitarianism allows for and even, at times, requires the punishment of the innocent. It traces the origins of this doctrine to the writings of the British Idealists and the subsequent development of what is called the post-utilitarian paradigm which posits various justifications for punishment such as retribution, deterrence and reform, finds all of them inadequate, and then, with the addition of other ideas, reconciles them. The idea of deterrence is falsely depicted as the (...) utilitarian contribution to the theory of punishment, while deterrence in fact is one of several elements in the utilitarian theory. The mistake comes from ignoring the pain-pleasure dimension of Benthamite utilitarianism and from regarding the principle of utility itself as the sole criterion of action in a ‘top-down’ fashion. (shrink)

In this, the first essay in a two-part series, I begin by distinguishing between three kinds of inquiries about divine forgiveness. I then canvass two approaches to theorizing the nature of divine forgiveness, developing them in various ways, and noting where, in my estimation, there are problems.

The teleological/deontological distinction was introduced in 1930 by C.D. Broad] and since then it has come to be accepted as the fundamental classificatory distinction for moral philosophy. I shall argue that the presupposition that there is a single fundamental classificatory distinction is false. There are too many features of moral theories that matter for that to be so. I shall argue furthermore that as it is usually drawn the teleological/deontological distinction is not even a fundamental distinction. Another distinction, that between (...) theories that make the right depend solely on considerations of goodness (axiological theories) and those that do not, is significantly more important. (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)

Commanders gain authority from obedience and lose authority from disobedience. We should expect commanders to therefore devise commands that reduce the probability of disobedience. To aid recognition of these techniques for reducing the risk of disobedience, I focus on the extreme of case of commands that reduce the probability to zero. Each of my ten commandments illustrates a logical technique for engineering out disobedience. Once you master these safety measures, you can confidently legislate your own universal maxims. Your innovations will (...) be good news for Immanuel Kant’s characterization of morality in terms of categorical imperatives. The commandments also raise interesting questions about responsibility for necessities and the nature of rule following. (shrink)

My aim in this article is threefold: First, I wish to challenge the view put forward by A. Flew and H. L. A. Hart which has won widespread recognition, namely, that the concept of punishment entails a legal or quasi-legal system of punishment. In my view all that is necessary for a case of punishment to occur is that a person inflicts deliberately and not primarily for the sake of any beneficial consequences which may flow from his action, anything likely (...) to cause discomfort to a victim who is capable of experiencing it, provided that the person inflicting the discomfort would claim, if asked to give a reason for his action, that he is inflicting it because of something for which he holds the victim accountable. If I am right it follows that punishment is not necessarily retributive, and that utilitarian ‘punishment’ like reformative and compensatory ‘punishment’ is not true punishment, since the discomfort inflicted in these cases is merely ancillary to another end. Secondly, I hope to show that Hart does not succeed in discrediting the retributive theory, and that his treatment of punishment, though functional in aim, perpetuates the confusion between the meaning of punishment and its justification. Thirdly, I shall contend that retribution is not a proper aim of a legal system, whatever place it may actually have or ought to have in our moral code. Looking to the future, I shall venture to predict that the legal institution of punishment will sooner or later give way to a system designed to reduce crime and to rehabilitate offenders. Such a system will be adjusted to the needs of the community and of individual offenders, and will not involve the infliction of discomfort as an end. Hence, it would be wrong to call it a system of punishment. (shrink)

Rawls scholarship has not paid much attention to Rawls's early methodological writings so far, pretty much focusing on thereflective equilibrium(RE) which he is understood to have adopted inA Theory of Justice. Nelson Goodman's coherence-theoretical formulations concerning the justification of inductive logic inFact, Fiction and Forecasthave been suggested as the source of the RE. Following Rawls's methodological development in his early works, we shall challenge both these views. Our analysis reveals that the basic elements of RE can be located in his (...) ‘Two Concepts of Rules’ essay. We shall further show that the origins of RE go all the way back to Aristotle's methods of ethics, as RE accords with the methodology entitledsaving the appearances(SA) in recent Aristotle scholarship. (shrink)

This paper is concerned with how we ought to think about legitimate expectations in the non-ideal, ‘real’ world. In one (dominant) strand of contemporary theories of justice, justice requires not that each gets what she deserves, but that each gets that to which she is entitled in accordance with what Rawls calls ‘the public rules that specify the scheme of cooperation’. However, that is true only if those public rules are part of a fully just scheme and it is plausibly (...) the case that no such scheme obtains in the real world. Given that, and given the centrality of legitimate expectations to theories of justice, it is vital to think about the status of such expectations in non-ideal circumstances. Having explained the sense in which legitimate expectations have come to play a role often previously associated with desert, a brief argument in favour of an ‘expectations’ view of punishment is considered to show that the system to public rules that generates expectations must itself be (in some sense) just. This argument is illustrated by appeal to just punishment and the relevance of thinking about punishment and not merely distributive justice is defended. In the absence of justice, one possibility would be simply to declare that there are no legitimate expectations and so theories of justice provide no guidance as to who should get what in non-ideal conditions. However, this would be to render such theories more-or-less useless in practice. Through discussion of a series of vignettes, the paper offers an account of how we might think about the demands such expectations place on the systems that give rise to them even in cases where the system is unjust. (shrink)

The notion of rule utilitarianism (a twentieth-century addition to the canon of utilitarian thought) has been discussed under two main headings—ideal-rule utilitarianism and 'indirect' utilitarianism. The distinction between them is often hazy. But we can sketch out each perspective along three different dimensions, contrasting the two conceptions of rule utilitarianism at each of three main hinge points: (1) the grounding of rules, (2) the allowed complexity of rules, (3) the conflict of rules. These two profiles constitute ideal types, but they (...) help us see that we can regiment and focus utilitarian intuitions in two quite distinct ways. An interesting test case is provided by J.S. Mill. He has been associated with each of these perspectives (with a utilitarianism of ideal rules by R.B. Brandt and with indirect utilitarianism by John Gray), but careful attention to Mill's main arguments indicates, I believe, that he adheres to neither consistently, though he is closer to the indirect utilitarian position. (shrink)

Prior research on the psychology of retribution is complicated by the difficulty of separating retributive and general deterrence motives when studying human offenders . We isolate retribution by investigating judgments about punishing animals, which allows us to remove general deterrence from consideration. Studies 2 and 3 document a “victim identity” effect, such that the greater the perceived loss from a violent animal attack, the greater the belief that the culprit deserves to be killed. Study 3 documents a “targeted punishment” effect, (...) such that the responsive killing of the actual “guilty” culprit is seen as more deserved than the killing of an almost identical yet “innocent” animal from the same species. Studies 4 and 5 extend both effects to participants' acceptance of inflicting pain and suffering on the offending animal at the time of its death, and show that both effects are mediated by measures of retributive sentiment, and not by consequentialist concerns. (shrink)

Here I distinguish the four logically possible ways in which nuclear weapons might be used: in an all?out nuclear strike, either first or second; or in a limited strike, either first or second. I go on to show that neither of the two most basic moral perspectives, consequentialistic or deontological, would permit nuclear weapons to be used in any of those four ways; nor would they permit an empty threat to use them. Nuclear weapons are thus shown to be morally (...) useless. Given the moral opportunity costs of maintaining this morally useless arsenal, nuclear weapons should therefore be abandoned, universally if possible and unilaterally if need be. (shrink)

It is extraordinary, when one thinks about it, how little attention has been paid by theorists of the nature and justification of punishment to the idea that punishment is essentially a matter of self-defense. H. L. A. Hart, for example, in his famous “Prolegomenon to the Principles of Punishment,” is clearly committed to the view that, at bottom, there are just three directions in which a plausible theory of punishment can go: we can try to justify punishment on purely consequentialist (...) grounds, which for Hart, I think, would be to try to construct a purely utilitarian justification of punishment; we can try to justify punishment on purely retributive grounds; or we can try to justify punishment on grounds that are some sort of shrewd combination of consequentialist and retributive considerations. Entirely absent from Hart's discussion is any consideration of the possibility that punishment might be neither a matter of maximizing the good, nor of exacting retribution for a wrongful act, nor of some imaginative combination of these things, but, rather, of something altogether different from either of them: namely, the exercise of a fundamental right of self-protection. Similarly, but much more recently, R. A. Duff, despite the fact that he himself introduces and defends an extremely interesting fourth possibility, begins his discussion by writing as though, apart from his contribution, there are available to us essentially just the options previously sketched by Hart. Again, there is no mention here, any more than in Hart's or any number of other recent discussions, of the possibility that we might be able to justify the institution of punishment on grounds that are indeed forward-looking, to use Hart's famous term, but that are not at all consequentialist in any ordinary sense of the word. (shrink)

I attempt to describe the several costs that criminal theory would be forced to pay by adopting the view (currently fashionable among moral philosophers) that the intentions of the agent are irrelevant to determinations of whether his actions are permissible (or criminal).

This paper asks whether prisoners should have access to Pell Grants, for which they are currently ineligible. In the first section, the author considers philosophical arguments relating to the present ban by examining traditional concerns of deterrence, rehabilitation, and retribution. The second section explores two arguments against a more inclusive Pell Grant policy. In the third section the author argues that restoring higher education grants to prisoners is compelling, especially when one considers issues of race and class. The paper concludes (...) by using Erich Fromm’s social theory to call into question the justice, ethics, and rationality of those societies that normalize mass incarceration. (shrink)

This is a collection of four papers about the All-Affected Principle (AAP): the view that every person whose morally weighty interests are affected by a democratic decision has the right to participate in that decision. -/- The first paper (“Narrow Possibilism about Democratic Enfranchisement”) examines how we should distribute democratic participation rights: a plausible version of AAP must avoid treating unlike cases alike, which would be procedurally unfair. The solution is to distribute participation rights proportionately to the risk that a (...) person’s interests will be affected. AAP thus implies an account of political equality that requires adherence to the ‘one person—one vote’ model only if interests are indeed equally affected. -/- The second paper (“Economic Participation Rights and the AAP”) argues that AAP supporters have paid insufficient attention to economic participation rights. The exercise of such rights raises unique worries about democratic accountability, which is why their exercise is constrained by a number of duties. -/- The third paper (“What AAP Is, and How (Not) to Fight It”) explores how AAP fares in light of possible objections from desirability and feasibility. Unlike crude versions of AAP, a plausibly restricted version of AAP cannot be dismissed as easily as many AAP sceptics may have thought. My reflections here are useful for AAP supporters and sceptics alike: this paper helps clarify what kind of objection can cast serious doubt on AAP. -/- The fourth paper (“Criminal Disenfranchisement, Political Wrongdoing, and Affected Interests”) asks: is AAP compatible with criminal disenfranchisement? AAP, when endorsed in combination with a plausible theory of punishment, is compatible with disenfranchising a narrow set of criminal wrongdoers only: those guilty of ‘political wrongdoing’, which is wrong primarily because it undermines democratic procedures and institutions for private gain. The upshot is that current blanket policies of criminal disenfranchisement are incompatible with AAP. (shrink)

Has modern neuroscience shown that free will is an illusion? Those who give an affirmative answer often argue as follows. The overt actions that have been studied in some recent experiments do not have corresponding consciously made decisions or conscious intentions among their causes. Therefore no overt actions have corresponding consciously made decisions or conscious intentions among their causes. This paper challenges this inference, arguing that it is unwarranted.

Neither currently prevalent justifications of punishment, nor a modified, contractarian version of a justification that I develop here, can be used to justify actual state punishment, even if some forms of punishment may remain legitimate. I argue in this thesis that alternative punitive practices such as developed by some Canadian aboriginal communities are more likely to conform to the criteria of punitive justice developed by standard justifications, as well as being more likely to conform to criteria developed in feminist ethics.

CHAPTER 1. Contains a general review of the concept of Justice from Plato on and distinguishes it from the concept of legal justice which is merely one (albeit the most important) of its applications. CHAPTER 2. Then places the concept of Justice in context within a society and shows how the different governing aspects of any society, (The State, the System of Jurisprudence, and Justice) are based upon different philosophical inputs. These inputs are quite separate, and involve four different areas (...) of philosophy, namely the Philosophies of Politics, Law, Ethics, and Morals. The chapter thus lays the foundations for the discussions of the applications of Justice. CHAPTER 3. Defines certain matters which are necessary to an understanding of Justice. It defines with more clarity than is usual the meaning of the word “RIGHTS”, distinguishing it from Privileges and Liberty. This involves a study of Hohfeld. From this I deduce the proposition that Power is prior to Rights. It is also necessary for us to understand what a Jural relation is, and how therefore things such as rights are quite different from states, such as Freedom. This involves the study of Kocourek. CHAPTER 4. Armed with the preceding we can go on to consider what happens when there is a clash between our sense of what is right or just, and the law. As examples I follow through cases of Conscientious objection and the much more difficult question of Civil Disobedience. Again it is shown how a justice based approach differs from the so called “rights” approach. This discussion brings us to CHAPTER 5. In which we consider the conflict in philosophy of Law between the Natural Law theorists and Legal Positivism. This conflict has been raging for a great length of time and brings such people as Hart and Dworkin into conflict. It is my belief that in this chapter I have shown a means of reconciling the two by use of the proper concept of Justice. Philosophically it is the most important chapter in the book and solves a problem that Professor Raz admitted had defeated him. It introduces a distinction between Rules of Law and Principles of Justice and resolves an apparent conflict with Dworkin. Finally it introduces the concept of the Prime Inherent Law. CHAPTER 6. From here I seek to take a more detailed look at the application of Justice in relation to law. To do this we need to understand the concept of Intentionality, and this chapter takes a detailed look at both the rules, as defined by some interesting civil and criminal cases, and the philosophical background. We even touch on the philosophy of mind. CHAPTERS 7 & 8. From here it is but a short step to consider some of the basic problems both philosophical and practical of Punishment. This subject is deeply concerned with concepts of justice, its philosophical justification, and for the necessity for punishments to be accepted as being Just by the public. CHAPTER 9 Ties our explorations together in the form of some conclusions. Thus although the book treats radically different applications of Justice and its relation to Rights there is a particular order of progress. I have not attempted to deal with so called distributive justice for reasons which I explain in the text (I do not believe there is such a thing - it is merely a post hoc name given to a best solution to what is, in some cases, an unresolvable problem. Nor do I deal specifically with political justice save to imply that justice must be inherent in any society that purports to be civilized, irrespective of the actual rights of the individual in that society. (shrink)