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)

In den moralphilosophischen Debatten der letzten Jahrzehnte spielen die sogenannten Trolley-Fälle eine große Rolle. Sie kommen zum Einsatz in Diskussionen der Frage, welcher Schaden Personen im Rahmen medizinischer oder politischer Maßnahmen zugefügt werden darf, und in Diskussionen darüber, welches die richtige normative Moraltheorie ist. Allerdings kritisieren viele Philosophinnen und Philosophen diese Gedankenexperimente wegen ihrer Konstruiertheit, Künstlichkeit, Abstraktheit und ihrer Lebensferne. In diesem Beitrag werden die Einwände eines prominenten Kritikers, Allen Wood, diskutiert. Er attestiert den Trolley-Gedankenexperimenten neben den genannten Punkten außerdem, (...) dass sie moralisch nicht neutral sind, indem sie uns mit einem rhetorischen Trick dazu bringen, bestimmte Faktoren für moralisch relevant zu halten. Wood fordert deshalb, dass man auf die Verwendung dieser Gedankenexperimente in der praktischen Philosophie verzichten solle. Ich werde seine Einwände entkräften, dann aber zeigen, dass er dennoch einen wunden Punkt nennt: Die Trolley-Fälle sind aufgrund der vorgegebenen Antwortoptionen in der Hinsicht nicht moralisch neutral, dass sie voraussetzen, dass die Anzahl der zu rettenden Menschen moralisch relevant ist. Sie eignen sich daher nicht, um ebendiese Behauptung zu begründen. Dieser Mangel kann aber durch eine Modifikation der Gedankenexperimente behoben werden; ein vollständiger Verzicht auf derartige Gedankenexperimente ist also entgegen Woods Ansicht nicht notwendigerweise geboten. (shrink)

This essay begins by describing T.M. Scanlon’s contractualism according to which an action is right when it is authorised by the moral principles no one could reasonably reject. This view has argued to have implausible consequences with regards to how different-sized groups, non-human animals, and cognitively limited human beings should be treated. It has also been accused of being theoretically redundant and unable to vindicate the so-called deontic distinctions. I then distinguish between the general contractualist framework and Scanlon’s version of (...) contractualism. I explain how the general framework enables us to formulate many other versions of contractualism some of which can already be found in the literature. Understanding contractualism in this new way enables us both to understand the structural similarities and differences between different versions of contractualism and also to see the different objections to contractualism as internal debates about which version of contractualism is correct. (shrink)

This paper explores early Australasian philosophy in some detail. Two approaches have dominated Western philosophy in Australia: idealism and materialism. Idealism was prevalent between the 1880s and the 1930s, but dissipated thereafter. Idealism in Australia often reflected Kantian themes, but it also reflected the revival of interest in Hegel through the work of ‘absolute idealists’ such as T. H. Green, F. H. Bradley, and Henry Jones. A number of the early New Zealand philosophers were also educated in the idealist tradition (...) and were influential in their communities, but produced relatively little. In Australia, materialism gained prominence through the work of John Anderson, who arrived in Australia in 1927, and continues to be influential. John Anderson had been a student of Henry Jones, who might therefore be said to have influenced both main strands of Australian philosophical thought. (shrink)

Mandatory minimum sentencing provisions have been a feature of the U.S. justice system since 1790. But they have expanded considerably under the war on drugs, and their use has expanded considerably under the Trump Administration; some states are also poised to expand drug-related mandatory minimums further in efforts to fight the current opioid epidemic. In this paper I outline and evaluate three prominent arguments for and against the use of mandatory minimums in the war on drugs—they appeal, respectively, to proportionality, (...) consistency, and efficiency. I ultimately defend the view that the use of mandatory minimums in the war on drugs is unjust. -/- . (shrink)

An overview (about 8,000 words) of act utilitarianism, covering the basic idea of the theory, historical examples, how it differs from rule utilitarianism and motive utilitarianism, supporting arguments, and standard objections. A closing section provides a brief introduction to indirect utilitarianism (i.e., a Hare- or Railton-style view distinguishing between a decision procedure and a criterion of rightness).

Current sentencing practice in England and Wales is incoherent. This stems from the combination of conflicting philosophies of punishment, with no clear method adopted by sentencers in choosing between them. This presents a significant challenge as sentencing can have a profound impact on an offender’s life, as well as having wider implications for family members. Therefore, a coherent decision-making process is essential in order to limit arbitrary sentencing and support the legitimacy of the penal system. This thesis argues that Restorative (...) Justice might offer a more coherent decision-making process. Restorative Justice is hypothesised to operate as a kind of mediation process between the philosophies of punishment and understandings of justice held by participants. Their voluntarily agreed outcome should therefore represent the best possible compromise between participants’ ideas of justice and philosophies of punishment. Analysis of existing empirical research has been undertaken, involving the examination of existing studies of Restorative Justice in Northern Ireland, England and Wales, Australia and New Zealand. This empirical research has explored problems which can arise in practice for the theoretical conception of Restorative Justice as a mediation process between ideas. The thesis concludes that Restorative Justice can in theory offer a more coherent process of sentencing, but that there are a number of obstacles to realising this in practice. (shrink)

Luciano Floridi presents Information Ethics (IE) as an alternative to traditional moral theories. IE consists of two tenets. First, reality can be interpreted at numerous, mutually consistent levels of abstraction, the highest of which is information. This level, unlike the others, applies to all of reality. Second, everything, insofar as it is an information object, has some degree of intrinsic value and hence moral dignity. I criticize IE, arguing that Floridi fails to show that the moral community should be expanded (...) beyond beings capable of suffering or having preferences. Next, I look at Floridi’s extended case against consequentialism generally and utilitarianism in particular. I try to show that his criticisms are flawed. Third, I argue that, for the most part, it is not clear what IE’s practical implications are. I conclude with a critical discussion of the one area of information ethics, traditionally conceived, that Floridi has written about at length, privacy. (shrink)

A theory of punishment should tell us not only when punishment is permissible but also when it is a duty. It is not clear whether McCloskey's retributivism is supposed to do this. His arguments against utilitarianism consist largely in examples of punishments unacceptable to the common moral consciousness but supposedly approved of by the consistent utilitarian. We remain unpersuaded to abandon our utilitarianism. The examples are often fanciful in character, a point which (pace McCloskey) does rob them of much of (...) their force. If there was no tension between utilitarian precepts and those which come naturally to plain men, utilitarianism could have no claim to provide a critique of moralities. The utilitarian's attitude to such tensions is somewhat complicated, but what is certain is that there is more room in his system for the sentiments to which McCloskey appeals against him than McCloskey realizes. We agree with McCloskey, however, on the absurdity of substituting rule?utilitarianism for act?utilitarianism as an answer to his attacks. The distinction itself may represent a conceptual confusion. In our view, indeed, unmodified act?utilitarianism provides the best moral basis for thought about punishment. (shrink)

Philosophy and Literature is an internationally renowned refereed journal founded by Denis Dutton at the University of Canterbury, Christchurch. It is now published by the Johns Hopkins University Press. Since its inception in 1976, Philosophy and Literature has been concerned with the relation between literary and philosophical studies, publishing articles on the philosophical interpretation of literature as well as the literary treatment of philosophy. Philosophy and Literature has sometimes been regarded as iconoclastic, in the sense that it repudiates academic pretensions, (...) insidious jargon and institutional vogue. Dutton, who remains the editor, still writes a regular column. A distinctive feature of Philosophy and Literature was the annual Bad Writing Contest, held from 1995–98, which sought to identify (and publish) the ‘most stylistically lamentable passages’ of academic prose, often to great amusement. (shrink)

RÉSUMÉ: L’un des traits frappants d’une bonne partie des théories morales contemporaines est l’absence qu’on y trouve du sens moral commun. Les constructions théoriques de Rawls, Singer, Sidgwick et Smart sont caractéristiques à cet égard. Chacune échoue à rendre compte adéquatement du savoir moral que nous avons. Malgré leurs différences, leur échec commun tient à la méprise qu’elles partagent au sujet de la relation entre théorie et pratique, et à leur conception exagérée du rôle épistémique que jouent les principes moraux (...) dans la reconnaissance et la justification de la vérité de nos jugements moraux. (shrink)

RésuméL'un des traits frappants d'une bonne partie des théories morales contemporaines est l'absence qu'on y trouve du sens moral commun. Les constructions théoriques de Rawls, Singer, Sidgwick et Smart sont caractéristiques à cet égard. Chacune échoue à rendre compte adéquatement du savoir moral que nous avons. Malgré leurs différences, leur échec commun tient à la méprise qu'elles partagent au sujet de la relation entre théorie et pratique, et à leur conception exagérée du rôle épistémique que jouent les principes moraux dans (...) la reconnaissance et la justification de la vérité de nos jugements moraux. (shrink)

The purpose of this paper is to direct attention to a challenge—referred to as the threshold challenge —facing a non-absolutist retributivist view on international criminal justice. It is argued, on the one hand, that this challenge constitutes a practically pertinent problem for the retributivist approach to the punishment of mass crimes and, on the other, that it is very hard to imagine any principled way of meeting this challenge.

During the last half of the twentieth century, legal philosophy (or legal theory or jurisprudence) has grown significantly. It is no longer the domain of a few isolated scholars in law and philosophy. Hundreds of scholars from diverse fields attend international meetings on the subject. In some universities, large lecture courses of five hundred students or more study it. The primary aim of the Law and Philosophy Library is to present some of the best original work on legal philosophy from (...) both the Anglo-American and European traditions. Not only does it help make some of the best work avail able to an international audience, but it also encourages increased awareness of, and interaction between, the two major traditions. The primary focus is on full-length scholarly monographs, although some edited volumes of original papers are also included. The Library editors are assisted by an Editorial Advisory Board of internationally renowed scholars. Legal philosophy should not be considered a narrowly circumscribed field. (shrink)

Though utilitarianism is far from being universally accepted in the philosophical community, it is taken seriously and treated respectfully. Its critics do not dismiss it out of hand; they do not misrepresent it; they do not belittle or disparage its proponents. They allow the theory to be articulated, developed, and defended from criticism, even if they go on to reject the modified versions. Ethical egoism, a longstanding rival of utilitarianism, is treated very differently. It is said to be “refuted” by (...) arguments of a sort that apply equally well to utilitarianism. It is said to be “unprovable,” when many of the greatest utilitarians themselves, such as Jeremy Bentham (1748–1832), John Stuart Mill (1806–1873), and Henry Sidgwick (1838–1900), admitted that no normative ethical theory, including their own, is provable. Critics of ethical egoism seldom discuss the various theoretical moves that utilitarians are routinely allowed to make, such as (1) fighting the facts, (2) transforming the theory from “act utilitarianism” to “rule utilitarianism,” and (3) biting the bullet. This essay argues that every defensive move made by utilitarians can be made, with equal vigor (if not also plausibility), by ethical egoists. The conclusion is that ethical egoism deserves to be taken more seriously than it is. (shrink)

Once relegated to the margins of the responsibility debate, moral influence theories have recently been rehabilitated. This paper offers a moral influence theory with two parts: a theory of responsibility as influenceability and an act-consequentialist justification of blame. I defend this account against six concerns commonly raised both by opponents and by advocates of similar views. Some concerns target act consequentialism, claiming that it 1) permits blaming innocents; 2) permits coercion, manipulation, and other objectionable forms of influence; and 3) fails (...) to capture intuitions about desert. Other concerns target responsibility as influenceability, claiming that influenceability accounts are 4) unsophisticated, 5) make ascriptions of responsibility dependent on assessments of permissible blame, and 6) have various counterintuitive implications. (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.

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)

Reliabilism—the view that a belief is justified iff it is produced by a reliable process—is often characterized as a form of consequentialism. Recently, critics of reliabilism have suggested that since it is a form of consequentialism, reliabilism condones a variety of problematic trade-offs involving cases where someone forms an epistemically deficient belief now that will lead her to more epistemic value later. In the present paper, we argue that the relevant argument against reliabilism fails because it equivocates. While there is (...) a sense in which reliabilism is a kind of consequentialism, it is not of a kind on which we should expect problematic trade-offs. (shrink)

One of the core issues in contemporary political philosophy is concerned with `political obligation.' Stated in an overly simplified way, the question being asked when one investigates political obligation is, "What, if anything, do citizens owe to their government and how are these obligations generated if they do exist?" The majority of political philosophers investigating this issue agree that a political obligation is a moral requirement to act in certain ways concerning political matters. Despite this agreement about the general nature (...) of what is being searched for, a broad division has arisen between political obligation theorists - there are some who take political obligations to actually exist and there are some who take there to be no general political obligation. While there is debate within the camp defending political obligation about what it is that generates the obligations, the common core of all "defender theories" is the fundamental idea that one has a moral requirement to support and obey the political institutions of one's country. Despite utilitarianism's status as one of the major ethical theories, historically, it has largely been dismissed by theorists concerned with political obligation. Within the contemporary debate it is generally accepted that utilitarianism cannot adequately accommodate a robust theory of political obligation. The overarching objective of this dissertation is to challenge this general dismissal of a utilitarian account and to build upon the two accounts which have been developed in offering a robust utilitarian theory of political obligation which can be considered a competitor to the other contemporary theories. However, as this utilitarian account of political obligation develops, the possibility will also emerge for a non-antagonistic relationship between the utilitarian theory on offer and the contemporary political obligation debate. The moral reasons posited by the traditional theories of political obligation can be included in and accommodated by my utilitarian account. The utilitarian account of political obligation can accept that there are many types of reasons explaining why broad expectations concerning individual and group behavior are created, and each type of reason can be understood as supporting the utilitarian claim that there are moral reasons for following the laws and supporting legitimate political authorities. Taken all together, my arguments will take the form of a three tiered response to the prevailing opinion that any utilitarian attempt to account for political obligations is doomed. The first tier contends that the utilitarian can consistently claim that there are moral reasons to follow the law. This is not a particularly strong claim, but it is one which has been denied by the vast majority of political theorists. The second tier of my argument addresses this apparent issue by contending that even the traditional deontological accounts of political obligation are not offering more than this. Lastly, it is contended that, given the contingent features of humans, the strength of the utilitarian political obligations is comparable to other accounts' analyses of the obligations. (shrink)

Over the last few decades, scientists have been busy debunking the myth that nonhuman animals relate to each other in a primarily competitive, aggressive way. What they have found is that many species of animal, including many of those most closely related to humans, display a remarkable range of cooperative, "prosocial" behavior. In fact, it appears that some animal societies adhere to a moral code. What is preventing us, then, from saying that the members of these societies are moral beings? (...) Nothing important, according to a recent book. Probing further into this question, I suggest that in fact quite a lot is at risk in making this move. To integrate nonhuman animals fully into the moral domain, we may have to adapt our conception of morality in some very troublesome ways. (shrink)

‘Retributivism’ covers a wide range of theories which, even though they differ in various ways, all give some room for proportionality considerations with regard to the question of how severely offenders should be punished. This article addresses the question—well‐known from traditional ethical theory—as to whether proportionality constraints should be given an absolutist or a non‐absolutist interpretation. It is argued that both absolutist and some non‐absolutist accounts of proportionality constraints have counter‐intuitive implications and, more generally, that the non‐absolutist interpretation, to which (...) most retributivists seem to subscribe, faces serious challenges with regard to how the thresholds of such constraints should be determined. It is concluded that, given the aspiration of providing genuine action guidance for penal practice, the retributivist faces a dilemma that is not easily resolved. (shrink)

The aim of this paper is to argue that the utilitarian principle of criminalization is sounder than its poor reputation suggests. The paper begins by describing three possible answers to the research question: To what extent should the consequences of criminalization matter morally in a theory of criminalization? Hereafter I explain why I shall discuss only two of these answers. Then follows a detailed and critical specification of UPC. Furthermore, I will argue why criticisms of UPC made by philosophers such (...) as Douglas Husak and Victor Tadros in their recent work are far from convincing. Finally, I will present a positive reason for accepting UPC as a principle of criminalization, namely: that UPC is consistent with what I call the Counterproductive Criminalization Principle, while non-consequentialist theories of criminalization are not. (shrink)

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.

_Historical and contemporary philosophical writings on punishment._.

I argue that the separation of conjoined twins in infancy or early childhood is unethical. Cases may be divided into three types: both twins suffer from lethal abnormalities, only one twin has a lethal abnormality, or neither twin does. In the first kind of case, there is no reason to separate, since both twins will die regardless of treatment. In the third kind of case, I argue that separation at an early age is unethical because the twins are likely to (...) achieve an irreplaceably good quality of life—the goods of conjoinment—that separation takes away. Evaluation of this possibility requires maturation past early childhood. Regarding the second type, I point out that with conceivable but unrecorded exceptions, these cases will consistently involve sacrifice separation. I present an argument that sacrifice separation is unethical, but in some cases a moral dilemma may exist in which separation and refraining from separation are both unethical. Perhaps in such cases a decision can be made on non-moral grounds; however, the possibility of such a decision serves not to mitigate but to underscore the fact that the separation is unethical. My conclusion, which applies to all three types of cases, is that it is unethical to separate conjoined twins before their developing personalities give some reliable indication as to whether they desire separation and whether they will achieve those goods of conjoinment. (shrink)