Since 2015 millions of migrants have paid smugglers to take them across borders. In response, states have increasingly arrested smugglers, hoping to morally condemn smuggling, and to decrease the rate of inward migration. This article argues that, even if a state is justified in morally condemning smuggling, and justified in decreasing inward migration, arresting smugglers is a disproportionate response for reaching these ends.

For many philosophers, bad-history wrongdoers are primarily interesting because of what their cases might tell us about the interaction of moral responsibility and history. However, philosophers focusing on blameworthiness have overlooked important questions about blame itself. These bad-history cases are complicated because blame and sympathy are both fitting. When we are careful to consider the rich natures of those two reactions, we see that they conflict in several important ways. We should see bad-history cases as cases about whether and how (...) we should blame, rather than as cases giving us ready insight into the nature of moral responsibility. (shrink)

Harming other people is prima facie wrong. Unless we can be very certain that doing so is justified under the circumstances, we ought not to do it. In this paper, I argue that we ought to dismantle harsh retributivist criminal justice systems for this reason; we cannot be sufficiently certain that the harm is justified. Gregg Caruso, Ben Vilhauer and others have previously argued for the same conclusion; however, my own version sidesteps certain controversial premises of theirs. Harsh retributivist criminal (...) justice can only be morally right if the following three propositions are true: Moral responsibility exists, retributivism is right, and we can find out how much punishment offenders deserve for their crimes. Suppose that we initially assign a high credence to each of the three propositions; I assume for the sake of argument that there are good arguments in support of each. Nevertheless, these arguments ultimately depend on intuitions. Since we have philosophical peers whose intuitions differ from ours, we ought to downgrade our credence in each. However, even slightly less credence in each proposition means far less credence in a conjunction of all three. Since the stakes are high and there are morally safer options for a criminal justice system, we ought to dismantle harsh retributivist ones. (shrink)

Negligence reminds us that we often do and cause things unawares, occasionally with grave results. Given the lack of foresight and intention, some authors argue that people should not be judged culpable for negligence. This paper offers a contrasting view. It argues that gaining control is itself a fundamental responsibility, with both collective and individual elements. The paper underlines both sides, focussing on how they relate as we ascribe responsibility or culpability. Following the introduction, Section 2 argues that conscious awareness (...) is neither necessary nor sufficient for control. Control is not a property of deliberate choice, so much as a practical achievement. Section 3 stresses the collective aspects of non-negligence: creating knowledge about risks, structuring environments to guard against them, and developing standards of care. Failings in the collective task, rather than lack of individual control, mean it can often be unfair to pin culpability on a single individual. Section 4 suggests that a basic duty of a responsible person is to acknowledge the ways in which we may do more or less than we mean to, often in ways that create risks. It then sketches an approach to culpability as part of a collective exercise: as we take responsibility for standards of care, and for our own and others’ agency. (shrink)

Within the United States, the most prominent justification for criminal punishment is retributivism. This retributivist justification for punishment maintains that punishment of a wrongdoer is justified for the reason that she deserves something bad to happen to her just because she has knowingly done wrong—this could include pain, deprivation, or death. For the retributivist, it is the basic desert attached to the criminal’s immoral action alone that provides the justification for punishment. This means that the retributivist position is not reducible (...) to consequentialist considerations nor in justifying punishment does it appeal to wider goods such as the safety of society or the moral improvement of those being punished. A number of sentencing guidelines in the U.S. have adopted desert as their distributive principle, and it is increasingly given deference in the “purposes” section of state criminal codes, where it can be the guiding principle in the interpretation and application of the code’s provisions. Indeed, the American Law Institute recently revised the Model Penal Code so as to set desert as the official dominate principle for sentencing. And courts have identified desert as the guiding principle in a variety of contexts, as with the Supreme Court’s enthroning retributivism as the “primary justification for the death penalty.” While retributivism provides one of the main sources of justification for punishment within the criminal justice system, there are good philosophical and practical reasons for rejecting it. One such reason is that it is unclear that agents truly deserve to suffer for the wrongs they have done in the sense required by retributivism. In the first section, I explore the retributivist justification of punishment and explain why it is inconsistent with free will skepticism. In the second section, I then argue that even if one is not convinced by the arguments for free will skepticism, there remains a strong epistemic argument against causing harm on retributivist grounds that undermines both libertarian and compatibilist attempts to justify it. I maintain that this argument provides sufficient reason for rejecting the retributive justification of criminal punishment. I conclude in the third section by briefly sketching my public health-quarantine model, a non-retributive alternative for addressing criminal behavior that draws on the public health framework and prioritizes prevention and social justice. I argue that the model is not only consistent with free will skepticism and the epistemic argument against retributivism, it also provides the most justified, humane, and effective way of dealing with criminal behavior. (shrink)

One way to frame the problem of moral luck is as a contradiction in our ordinary ideas about moral responsibility. In the case of two identical reckless drivers where one kills a pedestrian and the other does not, we tend to intuit that they are and are not equally blameworthy. The Character Response sorts these intuitions in part by providing an account of moral responsibility: the drivers must be equally blameworthy, because they have identical character traits and people are originally (...) praiseworthy and blameworthy in virtue of, and only in virtue of, their character traits. After explicating two versions of the Character Response, I argue that they both involve implausible accounts of moral responsibility and fail to provide a good solution to the problem of moral luck. I close by noting how proponents of moral luck can preserve a kernel of truth from the Character Response to explain away the intuition that the drivers are equally blameworthy. (shrink)

This article considers and criticizes criminal law‘s assumption of the moral autonomy of individuals, showing how that view rests on questionable and obscure Kantian commitments about the self, and proposes a naturalistic alternative developed through a synthetic reading of Adorno‘s and Bhaskar‘s account of the subject in relation to nature and society. As an embodied, emergent, changing subject whose practically rational powers are emergent, polymorphous, and contingent, the subject‘s moral autonomy is dependent on the conditions for experiences of solidarity in (...) four-planar nature. This view makes criminal theory‘s Autonomy Assumption look deeply questionable; autonomy must be a complex, nuanced open question, not an abstract, a priori default assumption. (shrink)

This is a draft of my chapter on Negligence for the forthcoming Oxford Handbook in Moral Psychology. It discusses philosophical, psychological, and legal approaches to the attribution of culpability in cases of negligent wrongdoing.

A gunman intends to shoot and kill Victim. He shoots and misses his target, but the gunshot startles a group of water buffalo, causing them to trample the victim to death. The gunman brings about the intended effect, Victim’s death, but in a “deviant” way rather than the one planned. This paper argues that such causal structures, deviant causal chains, pose serious problems for several key legal concepts. -/- I show that deviant causal chains pose problems for the legal distinction (...) between attempts and completed crimes, and also for the distinction between attempts and mere preparations. I then suggest that cases of deviant causation undermine notions of legal liability for completed crimes in terms of actus reus and mens rea, and argue that natural accounts of negligence misclassify some cases involving deviant causal chains. After diagnosing several conceptual vulnerabilities in the law revealed by deviant causal chains, I show that natural strategies for shoring up legal theories in the face of these examples are unpromising. (shrink)

Explaining the notion of legal luck and exploring its justification. Focusing on how legal luck relates to moral luck, legal causation and negligence, and to civil and criminal liability.

In this paper, I defend externalist accounts of justified belief from Cohen's new evil demon objection. While I think that Cohen might be right that the person is justified in believing what she does, I argue that this is because we can defend the person from criticism and that defending a person is a very different thing from defending a person's attitudes or actions. To defend a person's attitudes or actions, we need to show that they met standards or did (...) not violate norms. Intuitions about whether we can defend a person from criticism are a poor guide when it comes to determining whether norms were violated or standards were met. It turns out that even radical forms of externalism about justification are compatible with the intuitions that Cohen's example elicits. Properly understood, those intuitions show that the believer should be excused from criticism (and excused for failing to believe with adequate justification). (shrink)

I argue that certain kinds of luck can partially determine an agent’s praiseworthiness and blameworthiness. To make this view clearer, consider some examples. Two identical agents drive recklessly around a curb, and one but not the other kills a pedestrian. Two identical corrupt judges would freely take a bribe if one were offered. Only one judge is offered a bribe, and so only one judge takes a bribe. Put in terms of these examples, I argue that the killer driver and (...) bribe taker are more blameworthy than their counterparts. I offer three arguments for that view, and, in doing so, I exemplify a general way to advance the moral luck debate. First, I argue against an account of moral responsibility that implies that the judges are equally blameworthy. Second, I argue that the killer driver is more blameworthy than the merely reckless driver. Third, I locate an alternative sense in which the agents in each case pair are morally on par. (shrink)

For generations, philosophers of punishment have sought to revise or combine established theories of punishment in a way that could reconcile the utilitarian aims of punishment with the demands of deontological justice. Victor Tadros’ recent work addresses the same problem, but answers it w it h an entirely original theory of punishment based on the duties criminals acquire by committing their crimes. The unexpected appearance of a new rationale for punishment has already inspired a robust dialogue between Tadros and his (...) critics on many of the individual claims that, linked together, comprise his argument. This critique focuses instead on Tadros’ theory as a whole and the methodology he uses to support it. It proposes that Tadros’ argumentative strategy can’t justify his rationale by virtue of (1) the extent and complexity of the moral reasoning he invokes, (2) the counter-intuitive results his theory produces in an array of specific cases, and (3) the superiority of a negative-retributivist account in which moral reasoning and intuitive judgments, and the principles and applications that f low from each, are coherent and mutually supportive. Victor Tadros responds to these arguments in an essay following this critique. (shrink)

Retributivist approaches to the philosophy of punishment are usually based on certain claims related to moral desert. I focus on one such principle:Censuring Principle : There is a moral reason to censure guilty wrongdoers aversively.Principles like CP are often supported by the construction of examples similar to Kant’s ‘desert island’. These are meant to show that there is a reason for state officials to punish deserving wrongdoers, even if none of the familiar goals of punishment, such as deterrence, will be (...) achieved. When suitable variants of such examples are presented, however, it is evident that there cannot be much reason to punish such wrongdoers, even if there is some. The same problem besets claims that there is intrinsic value in the suffering of wrongdoers, or that wrongdoers deserve to suffer. All such claims are relatively weak normatively. (shrink)

In this paper, I will critically assess the expressive justification of punishment recently offered by Christopher Bennett in The Apology Ritual and a number of papers. I will first draw a distinction between three conceptions of expression: communicative, motivational, and symbolic. After briefly demonstrating the difficulties of using the first two conceptions of expression to ground punishment and showing that Bennett does not ultimately rely on those two conceptions, I argue that Bennett’s account does not succeed because he fails to (...) establish the following claims: punishment is the only symbolically adequate response to a wrongdoing; and punishment is permissible if it is the only symbolically adequate response to a wrongdoing. (shrink)

In everyday life, we assume that there are degrees of blameworthiness and praiseworthiness. Yet the debate about the nature of moral responsibility often focuses on the “yes or no” question of whether indeterminism is required for moral responsibility, while questions about what accounts for more or less blameworthiness or praiseworthiness are underexplored. In this paper, I defend the idea that degrees of blameworthiness and praiseworthiness can depend in part on degrees of difficulty and degrees of sacrifice required for performing the (...) action in question. Then I turn to the question of how existing accounts of the nature of moral responsibility might be seen to accommodate these facts. In each case of prominent compatibilist and incompatibilist accounts that I consider, I argue that supplementation with added dimensions is required in order to account for facts about degrees of blameworthiness and praiseworthiness. For example, I argue that the reasons-responsiveness view of Fischer and Ravizza requires supplementation that takes us beyond even fine-grained measures of degrees of reasons-responsiveness in order to capture facts about degrees of difficulty to extend the reasons-responsiveness view by appealing to such measures). I conclude by showing that once we recognize the need for these additional parameters, we will be in a position to explain away at least some of the appeal of incompatibilist accounts of moral responsibility. (shrink)

Recent empirical work suggests that emotions are responsible for anti-consequentialist intuitions. For instance, anger places value on actions of revenge and retribution, value not derived from the consequences of these actions. As a result, it contributes to the development of retributive intuitions. I argue that if anger evolved to produce these retributive intuitions because of their biological consequences, then these intuitions are not a good indicator that punishment has value apart from its consequences. This severs the evidential connection between retributive (...) intuitions and the retributive value of punishment. This argument may generalize to other deontological intuitions and theories. (shrink)

Plausible retributivist justifications for punishment assert that the commission of a moral wrong creates a pro tanto reason to punish the person who committed it. Yet there are good case-based and theoretical reasons to believe that not all moral wrongs are the proper subjects of criminal law or that they are within the proper domain of the state. This article provides these reasons, which suggest that a plausible retributivist justification for punishment must make distinctions between state-relevant and non-state-relevant moral wrongs (...) and state-relevant and non-state-relevant desert. The article makes the case for Rawlsian public reason as a plausible method for making these distinctions. (shrink)

The typical epistemology course begins with a discussion of the distinction between justification and knowledge and ends without any discussion of the distinction between justification and excuse. This is unfortunate. If we had a better understanding of the justification-excuse distinction, we would have a better understanding of the intuitions that shape the internalism-externalism debate. My aims in this paper are these. First, I will explain how the kinds of excuses that should interest epistemologists exculpate. Second, I will explain why the (...) intuitions that underwrite the new evil demon argument don't provide support for the internalist claim that justification is just in the head. The positive response that Cohen's example elicits is an indication that the subject should be excused if she violates an epistemic norm, not an indication that no norm has been violated. For just about any conceivable norm we can think of we can imagine situations in which someone violates that norm because they're moved by evidence that misleadingly suggests that they'd conform to it. When that happens, we'll respond positively in just the way we do when we consider Cohen's deceived subjects. When that happens, we cannot say that the subjects' responses were justified because we've stipulated that the subjects' responses contravene the relevant norms. Regardless of whether you think of norms along internalist or externalist lines, you should see that the intuitions that underwrite the new evil demon objection tell us nothing at all about whether a subject conforms to a norm. They tell us nothing about justification. (shrink)

The human brain, with its 100 billion neurons working in intricate collaborations to create the physical basis of the memories, perceptions, thoughts, and emotions that together make me the person...

In their excellent monograph, Crimes, Harms and Wrongs, Andrew Simester and Andreas von Hirsch argue for an account of legitimate criminalisation based on wrongfulness, the Harm Principle and the Offence Principle, while they reject an independent anti-paternalism principle. To put it at its simplest my aim in the present paper is to examine the relationship between ‘the harms’ and ‘the wrongs’ of the authors’ title. I begin by comparing the authors’ version of the Harm and Offence Principle with some other (...) influential accounts. After examining the role wrongfulness plays in their work, I ask what there is left for their Harm and Offence Principles to do. In the light of the understanding and foundations of the Harm and Offence Principles proposed by the authors, I suggest that the answer is little or nothing. The wrongfulness constraint the authors place on their Offence Principle comes close to swallowing it up entirely. Furthermore the part of their Offence Principle that is not thus swallowed by wrongfulness leaves the account with a commitment that is probably best dropped. As far as their Harm Principle is concerned I suggest that the authors’ account of ‘harm’ is so broad that it lacks the resources to distinguish harm-based reasons from wrongfulness- or immorality-based reasons in any principled way. Among other things, I ask in this context, first, whether one can be harmed as one’s character deteriorates and, secondly, whether one is harmed by virtue of the serious wrong one does to another. What really drives the authors’ account of legitimate criminalisation, I believe, is wrongfulness together with an important, amorphous set of potential defeating conditions. They themselves accept such a picture so far as paternalism is concerned. I conclude that their account, which I think has considerable force, would lose little of any significance were their Harm and Offence Principles simply excised. More generally I suspect that a strong role for wrongfulness in an account of legitimate criminalisation is likely to put into serious question the plausibility of an independent principled role for harm and offence. (shrink)

In this paper, I claim that the personal/subpersonal distinction is first and foremost a distinction between two kinds of psychological theory or explanation: it is only in this form that we can understand why the distinction was first introduced, and how it continues to earn its keep. I go on to examine the different ontological commitments that might lead us from the primary distinction between personal and subpersonal explanations to a derivative distinction between personal and subpersonal states. I argue that (...) on one of the most common metaphysical interpretations of the explanatory distinction, talk of a distinction between personal and subpersonal states simply makes no sense. When people insist on applying the personal/subpersonal terminology to psychological states, I allow that they are often making a genuine distinction, but one that it is best understood in terms of Stich's (1978) distinction between doxastic and subdoxastic states. I end the paper by considering some other common misinterpretations of the personal/subpersonal distinction, such as those involving consciousness, normativity, or autonomy. (shrink)

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

The doctrine of transferred intent (or transferred “malice” in England) generally provides that if A attempts to harm B but, because of bad aim, misses and accidentally causes the same harm to befall C, A’s harmful intent vis-à-vis B is transferred to C, thus rendering A guilty of intentionally harming C. Commentators acknowledge the doctrine to be a legal fiction, but they differ regarding whether the fiction produces just results, some believing it does, others believing that A is guilty at (...) most of attempting to harm B rather than intentionally harming C. Commentators who agree that the fiction produces just results nevertheless differ regarding whether the fiction should be retained or whether A’s intent to harm “a” person, in this case, B, is the only intent that signifies for crimes of intentional harm, regardless of whom A eventually harms. Doug Husak sought to achieve reflective equilibrium between intuition and theory regarding bad-aim cases by proposing in 1996 that A be punished for attempting to harm B (rather than for harming C) but sentenced as if he had harmed B. I once believed that Husak was correct. But I now have doubts, in part because Husak, along with others, cannot explain why the strength of people’s intuitions regarding A’s responsibility in bad-aim cases depends upon (1) C’s being a reasonably foreseeable victim, and (2) C’s being harmed by the same threat of force that A initially unleashed against B. I argue that one cannot achieve reflective equilibrium in bad-aim cases without inquiring into why resulting harm matters in criminal law, and that when one does, one discovers that just as people’s intuitions regarding whether intentional harms are proximate depend upon how resulting harms occur, so, too, people’s intuitions regarding whether an actor is guilty of intentional harm depend upon how resulting harm comes about. (shrink)

Incest is a crime in most societies. In the United States, incest is punishable in almost every state with sentences going as far as 20 and 30 years in prison, and even a life sentence. Yet the reasons traditionally proffered in justification of criminalization of incest—respecting religion and universal tradition; avoiding genetic abnormalities; protecting the family unit; preventing sexual abuse and sexual imposition; and precluding immorality—at a close examination, reveal their under- and over-inclusiveness, inconsistency or outright inadequacy. It appears that (...) the true reason behind the long history of the incest laws is the feeling of repulsion and disgust this tabooed practice tends to evoke in the majority of population. However, in the absence of wrongdoing, neither a historic taboo nor the sense of repulsion and disgust legitimizes criminalization of an act. (shrink)

Negligence is a problematic basis for being morally blamed and punished for having caused some harm, because in such cases there is no choice to cause or allow—or risk causing or allowing—such harm to occur. The standard theories as to why inadvertent risk creation can be blameworthy despite the lack of culpable choice are that in such cases there is blame for: (1) an unexercised capacity to have adverted to the risk; (2) a defect in character explaining why one did (...) not advert to the risk; (3) culpably acquiring or failing to rid oneself of these defects of character at some earlier time; (4) flawed use of those practical reasoning capacities that make one the person one is; or (5) chosen violation of per se rules about known precautions. Although each of these five theories can justify blame in some cases of negligence, none can justify blame in all cases intuitively thought to be cases of negligence, nor can any of these five theories show why inadvertent creation of an unreasonable risk, pure and simple, can be blameworthy. (shrink)

The aim of this paper is to critically discuss the plausibility of legal moralism with an emphasis on some central and recent versions. First, this paper puts forward and defends the thesis that recently developed varieties of legal moralism promoted by Robert P. George, John Kekes and Michael Moore are more plausible than Lord Devlin's traditional account. The main argument for this thesis is that in its more modern versions legal moralism is immune to some of the forceful challenges made (...) to Devlin by Hart, Dworkin and Feinberg among others. Second, however, the paper challenges the new generation of legal moralists and suggests some areas for further development. Although Devlin's position has been scrutinized thoroughly in the literature on the philosophy of law, there has, to my knowledge, been no comparable, systematic critique of these different proponents of legal moralism. (shrink)

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

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).

After an initial discussion (§i) of what a theory of criminal law might amount to, I sketch (§ii) the proper aims of a liberal, republican criminal law, and discuss (§§iii–iv) two central features of such a criminal law: that it deals with public wrongs, and provides for those who perpetrate such wrongs to be called to public account. §v explains why a liberal republic should maintain such a system of criminal law, and §vi tackles the issue of criminalization—of how we (...) should determine the proper scope of the criminal law. (shrink)

It is conventional wisdom that appreciating the role of luck in our moral lives should make us more sparing with blame. But views of moral responsibility that allow luck to augment a person’s blameworthiness are in tension with this wisdom. I resolve this tension: our common moral luck partially generates a duty to forgo retributively blaming the blameworthy person at least sometimes. So, although luck can amplify the blame that a person deserves, luck also partially generates a duty not to (...) give the blameworthy person the retributive blame that he deserves at least sometimes. (shrink)

This paper presents a new version of the democratic argument for the freedom of expression that has the resources to give a plausible reply to the perennial objection—ordinarily considered fatal—that such accounts fail to deliver protections for abstract art, instrumental music, and lots of other deserving nonpolitical speech. The argument begins with the observation that there are different things that a free speech theory might aim to accomplish. It will hope to justify a right to free speech, of course, with (...) a particular scope and shape, but that right might be a moral right, an ordinary legal right, or a specifically constitutional right. The new version of the argument—the refined argument from democracy—aims to justify a specifically constitutional right to political speech, administered by strong-form judicial review. The democracy theorist can accommodate the intuition that abstract art deserves protection by agreeing that we have a moral right, and probably ought to have an ordinary legal right, to produce and view abstract art. She must only insist that abstract art should not be protected by a specifically constitutional right administered by strong-form judicial review. Not because abstract art does not deserve constitutional protection, but because, on this view, whether a particular right ought to be enshrined in the constitution and administered by judicial review is not solely a matter of the importance of the right or the value of the interests it protects. (shrink)

The article discusses retributive justice and punitive restraint in response to the worst types of crime. I take the Breivik Case as a starting point. Anders Behring Breivik was sentenced to 21 years of preventive detention for killing 69 people, mainly youths, at Utøya and 8 people in Oslo on July 22nd, 2011. Retributivist theories as well as commonly held retributive intuitions suggest that much harsher punishment is required for such crimes. According to some retributivist theories, most notably on the (...) influential theories of Kant and Hegel, the death penalty is warranted for murderers like Breivik. This suggests that the rationale for punitive restraint in a case like the Breivik Case can only be found in forward- looking, consequentialist theories of punishment, or by adding to retributivist theories a side-constraint in the form of a principle of parsimony. However, I argue that if we look closer at the function of punishment in the retributivist theories of Kant and Hegel, they too imply a rationale for punitive restraint, even for such horrific crimes as here discussed. Against Kant and Hegel’s own views on the death penalty, I argue that their broader “freedom theories” of retributive justice do not imply the justice of the death penalty or life imprisonment. In the last part of the article, I explore differences in the concepts of freedom entailed by Kant and Hegel’s theories, and I relate these to some of the background factors relevant to the Breivik Case. (shrink)

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

I argue that justification isn't just in the head. The argument is simple. We should be guided by our beliefs. We shouldn't be guided by anything to do what we shouldn't do. So, we shouldn't believe in ways that would guide us to do the things that we shouldn't. Among the various things we should do is discharge our duties (e.g., to fulfil our promissory obligations) and respect the rights of others (e.g., rights not to be harmed or killed by (...) agents acting on bad information). The grounds of our duties and obligations aren't just in the head. Thus, the conditions that bear on the justification of our beliefs cannot be contained wholly in our heads. The internalist might be right about aspects of normativity, but their theories tell us important normative truths without telling us the whole truth. In addition to norms that tell us how to process information, there are norms that tell us how we ought to live together. In information-asymmetry cases, these norms clearly come apart. Important normative questions about what we should do when agents (who, we might suppose, do what they subjectively ought to do) have interests that come into conflict can only be answered by externalist theories that recognise information-transcendent norms and normatively significant relations that don't supervene upon the information of any agent in particular. The internalist picture turns out to be disturbing precisely because it falls silent when we're faced with questions about how to resolve these conflicts. Resolving these conflicts should be a pressing concern for every normative theory. (shrink)

En el presente trabajo intento demostrar que, dadas ciertas condiciones, puede haber una relación de necesidad epistémica entre prueba y verdad. Esa es la tesis principal, desarrollada en la segunda parte de la investigación y publicada también en este volumen. Pero tiene apoyo en algunas tesis secundarias, que son expuestas y fundamentadas aquí, en esta primera parte. Las más relevantes son: no es correcto interpretar la fórmula de Tarski como una definición sofisticada de la noción correspondentista de verdad; la verdad, (...) en discursos teóricos, es un parámetro objetivo y alcanzable, en función del cual, siquiera provisoriamente y con base en razones, pueden ser dirimidas disputas de justificación; existe una conexión conceptual entre verdad y justicia retributiva; aunque usualmente esto no se explicite, la relación que interesa es entre prueba legítima y verdad; verdad no equivale a justificación; prueba equivale a justificación; justificaciones epistémicas pueden colapsar frente a la verdad. (shrink)

Saul Smilansky’s theory of free will and moral responsibility consists of two parts; dualism and illusionism. Dualism is the thesis that both compatibilism and hard determinism are partly true, and has puzzled many philosophers. I argue that Smilansky’s dualism can be given an unquestionably coherent and comprehensible interpretation if we reformulate it in terms of pro tanto reasons. Dualism so understood is the thesis that respect for persons gives us pro tanto reasons to blame wrongdoers, and also pro tanto reasons (...) not to blame them. These reasons must be we ighed against each other (and against relevant consequentialist reasons) in order to find out what we all things considered ought to do. (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)

In Fallibilism: Evidence and Knowledge, Jessica Brown identifies a number of problems for the so-called knowledge view of justification. According to this view, we cannot justifiably believe what we do not know. Most epistemologists reject this view on the grounds that false beliefs can be justified if, say, supported by the evidence or produced by reliable processes. We think this is a mistake and that many epistemologists are classifying beliefs as justified because they have properties that indicate that something should (...) be excused. Brown thinks that previous attempts to make this case have been unsuccessful. While the difficulties Brown points to are genuine, I think they show that attempts to explain a classificatory judgment haven't been successful. Still, I would argue that the classification is correct. We need a better explanation of this classificatory judgment. I will try to clarify the justification-excuse distinction and explain why it's a mistake to insist that beliefs that violate epistemic norms might be justified. Just as it's possible for a rational agent to act without justification in spite of her best intentions, it's possible that a rational thinker who follows the evidence and meets our expectations might nevertheless believe without sufficient justification. If our justified beliefs are supposed to guide us in deciding what to do, we probably should draw on discussions from morality and the law about the justification/excuse distinction to inform our understanding of the epistemic case. (shrink)

Hypocrisy seems to be a distinctive moral wrong. This thesis offers an account of that wrong. The distinctive wrong of hypocrisy is not a rational failing, or a deception of others. It is a problem in how we critique, and blame, others, when we ourselves are guilty of similar faults. Not only does it seem wrong to blame others hypocritically; it is also widely remarked that hypocrites ‘lack standing’ to blame. I defend both judgments. When we engage others in response (...) to wrongdoing, there is both instrumental and non-instrumental value in ensuring that those who face similar moral predicaments reason about these predicaments, and the appropriate responses to them, together. Hypocrisy is wrong because it hampers our ability to realise that value. And hypocrites lose standing to blame for a similar reason. Standing depends on the value of particular people engaging in an accountability procedure together, a value which the hypocrite forestalls, by failing to acknowledge wrongdoing in the course of blaming. This account of a duty to blame non-hypocritically helps unpack the relationship between hypocrisy and a range of other defects in a person’s standing. It also responds to a central sceptical challenge to the wrongness of hypocritical blaming. The challenge is that accurate hypocritical blaming can’t be wrong because it is morally good, and indeed is morally better than not blaming others at all. My response: hypocritical blaming is wrong, not because it is morally worse than not blaming at all, but because it is second-best, i.e. worse than non-hypocritical blaming, which enables mutual deliberation about wrongdoing. (shrink)

Forward-looking aims tend to play a much less significant role than retribution in justifying criminal punishment, especially in common law systems. In this paper I attempt to reinvigorate the idea that there are important forward-looking justifications for criminal law and punishment by looking to social theories of responsibility. I argue that the criminal law may be justified at the institutional level because it is a part of larger responsibility practices that have the effect of bolstering our reasons-responsiveness by making us (...) sensitive to the potential reactive attitudes of a larger societal audience. I further claim that forward-looking effects may justify criminal law institutions even if retribution is the primary aim of assigning punishments to specific offenders. (shrink)

The counterfactual mental state of negligent criminal activity invites skepticism from those who see mental states as essential to responsibility. Here, I offer a revision of the mental state of criminal negligence, one where the mental state at issue is actual and not merely counterfactual. This revision dissolves the worry raised by the skeptic and helps to explain negligence’s comparatively reduced culpability.

In this article, we will identify two issues that deserve greater attention from those researching lay people’s attitudes to moral responsibility and determinism. The first issue concerns whether people interpret the term “moral responsibility” in a retributive way and whether they are motivated to hold offenders responsible for pre-determined behaviour by considerations other than retributivism, e.g. the desires to condemn the action and to protect society. The second issue concerns whether explicitly rejecting moral responsibility and retributivism, after reading about determinism, (...) would have any impact on “implicit” retributivism when recommending a sentence for a hypothetical offender. We will report the results of an exploratory study that investigated these questions. Our preliminary findings raise the possibility that a significant proportion of participants either i) may not interpret “moral responsibility” in the basic, retributive sense of the term, which is at issue in the determinism debate, or ii) may be unconsciously motivated by non-retributive considerations to judge that the offender is morally responsible, in the basic, retributive sense. If this is confirmed by future research, a wider implication would be that theorists’ arguments against retributivism are more likely to affect public attitudes to punishment when non-retributive ways of achieving important punishment goals are emphasised. Our preliminary findings also suggested that explicit retributivism did not correlate with implicit retributivism. If this is confirmed in future research, it would imply that free will theorists who wish to affect public attitudes toward punishment should, when communicating their research to the public, give detailed consideration to the implications for sentencing. (shrink)

Journal Name: SATS Issue: Ahead of print.

Most contemporary research on disgust can be divided into “disgust advocates” and “disgust skeptics.” The so-called advocates argue that disgust can have a positive influence on our moral judgment; skeptics warn that it can mislead us toward prejudice and discrimination. This article compares this disagreement to a structurally similar debate in the field of genocide studies concerning the phenomenon of “perpetrator abhorrence.” While some soldiers report having felt strong disgust in the moment of committing or witnessing atrocity, scholars disagree on (...) whether such disgust is moral in nature. These empirical cases provide us with reasons to reconsider the normative features of disgust. Inspired by the conceptualization of disgust in Immanuel Kant and Aurel Kolnai, and as an alternative to both the disgust advocates and the skeptics, this article argues that the analogy of a stop sign can better help us define disgust responses. (shrink)

This article critically reviews what is known about the ethical status of psychologists’ putative involvement with enhanced interrogations and torture (EITs). We examine three major normative ethical accounts (utilitarian, deontic, and virtue ethics) of EITs and conclude, contra the American Psychological Association, that reasonable arguments can be made that in certain cases the use of EITs is ethical and even, in certain circumstances, morally obligatory. We suggest that this moral question is complex as it has competing moral values involved, that (...) is, the humane treatment of detainee competes with the ethical value/duty/virtue of protecting innocent third parties. We also suggest that there is an ethical duty to minimize harm by making only judicious and morally responsible allegations against the psychologists alleged to be involved in EITs. Finally, we make recommendations regarding completing the historical record, improvements in the professional ethics code, and the moral treatment of individuals accused in this controversy. (shrink)