The reform of offenders is often said to be one of the morally legitimate aims of punishment. After briefly surveying the history of reformist thinking I examine the ‘quasi-reform’ theories, as I call them, of H. Morris, J. Hampton and A. Duff. I explain how they conceive of reform, and what role they take it to have in the criminal justice system. I then focus critically on one feature of their conception of reform, namely, the claim that a reformed offender (...) will obey the relevant laws for moral reasons. I argue on consequentialist grounds that this requirement is objectionable. Consequentialism has always accepted reform as one legitimate goal of punishment, but it will not accept the narrowly moral conception of it that we find in the quasi-reform theorists. I situate my criticism within criminal law theory, but I also consider the claim in moral theory that acting from moral motives has intrinsic value. (shrink)

Nearly all retributive theories of punishment adopt the following model. Punishments are justified when the wrongdoers receive the punishment they deserve. A deserved punishment is one that is proportionate to the offender’s culpability. Culpability has two components: the severity of the wrong, and the offender’s blameworthiness. The broader aim of this article is to outline an alternative retributivist model that directly involves the victim in the determination of the appropriate and just punishment. The narrower aim is to show that the (...) methodology employed by Michael Moore in support of the standard retributive model in fact better supports this alternative model. Moore himself explicitly rejects the idea that victims can play a role in determining just punishments, because this would entail assigning different punishments to equally culpable offenders. When properly applied, however, Moore’s method for justifying retributivism results in an approach that directly involves the victim in the punishment process. (shrink)

In Free Will, Agency, and Meaning in Life, Derk Pereboom proposes an optimistic model of life that follows on the rejection of both libertarian and compatibilist beliefs in free will, moral responsibility, and desert. I criticize his views, focusing on punishment. Pereboom responds to my earlier argument that hard determinism must seek to revise the practice of punishment in the direction of funishment, whereby the incarcerated are very generously compensated for the deprivations of incarceration. I claimed that funishment is a (...) practical reductio: of hard determinism. Pereboom replies, but I claim that he misses a key component of my reductio, the idea that moving in the direction of funishment will considerably weaken the deterrence of potential criminals so that hard determinism becomes self-defeating in practice. Beyond the challenge of funishment, I raise various other difficulties with Pereboom’s model, concerning its deeply unintuitive implications, the harm it does to the motivation of potential criminals, its weakness in resisting utilitarian-like dangers, and more. Our conclusions should lead to a re-evaluation of the compatibilist interpretation of moral life, as a richer, more plausible, and safer interpretation than hard determinism. This needs to be combined with a true hard determinist acknowledgment of the deep injustice and tragedy involved in punishment in light of the absence of libertarian free will. Such a complex view will come closer to doing justice to notions of justice, morality, and decency. (shrink)

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)

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

In Zadig , published in 1748, Voltaire wrote of “the great principle that it is better to run the risk of sparing the guilty than to condemn the innocent.” At about the same time, Blackstone noted approvingly that “the law holds that it is better that ten guilty persons escape, than that one innocent suffer.” In 1824, Thomas Fielding cited the principle as an Italian proverb and a maxim of English law. John Stuart Mill endorsed it in an address to (...) Parliament in 1868. General acceptance of this maxim continues into our own period, yet it is difficult to find systematic attempts to defend the maxim. It is treated as a truism in no need of defense. But the principle within it is not at all obvious; and since it undergirds many of our criminal justice policies, we should be sure that it is justifiable. First, however, we must clarify what the principle means. (shrink)

Though genuine (voluntary, deliberate) consent of the governed does not occur in modern states, political legitimacy still requires something that does what consent does. Dereification of the state (recognizing that citizens continually create their state), combined with a defensible notion of moral responsibility, entails citizens' moral responsibility for their state. This implies that we may treat citizens morally as if they consented to their state, yielding a moral equivalent of consent of the governed, and a conception of political legitimacy applicable (...) to modern states thought legitimate. It implies that legitimate states have a moral right to rule, and their citizens have a prima facie moral obligation to obey the law. (shrink)

Jeffrie G Murphy & Jean Hampton, Forgiveness and Mercy Cambridge and New York: Cambridge University Press, 1988, 194 pp. Kathleen Dean Moore, Pardons: Justice, Mercy, and the Public Interest New York and Oxford: Oxford University Press, 1989, 271 pp.

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

The principal argument suggested here is that we are all morally embedded selves: We have no control over the abilities that make us moral agents nor can we control the degree to which we have these abilities; in other words, we are not responsible for our good or bad qualities as moral agents. This, I believe, calls for the adoption of embedded compatibilism (EC). According to EC, people have control over their conduct; this control, however, is embedded within prerequisites, which (...) they cannot control and hence are not responsible for having or lacking. On the one hand, EC enables us to explain why a lack of control at the ultimate level does not eliminate moral judgment altogether. However on the other hand, EC ought to change our understanding of moral responsibility; interalia, it supports a hybrid notion of punishment, indicates the incomplete nature of guilt and reintroduces the problem of moral luck. (shrink)

Against the view of some contemporary Kantians who wish to downplay Kant's retributivist commitments, I argue that Kant's theory of practical of reason implies a retributive conception of punishment. I trace this view to Kant's distinction between morality and well-being and his attempt to synthesize these two concerns in the idea of the highest good. Well-being is morally valuable only insofar as it is proportional to virtue, and the suffering inflicted on wrongdoers as punishment for wrongdoing is morally good so (...) long as it is proportional to the wrongdoing. According to Kantian retributivism, punishment is warranted as a means to promote proportionality between well-being and virtue. (shrink)

I argue that penal philosophy should focus more on our attitudes towards offenders, since these attitudes can shed new light on theories or principles of punishment (of which they are often expressions) and also play a significant role in changing the face of criminal justice. Building on Strawson’s “Freedom and Resentment,” I define attitudes as certain ways of seeing human beings that logically include or exclude various emotional, behavioral, and linguistic responses, that can be more or less natural, and over (...) which we have some degree of voluntary control. I argue that, understood in this sense, there are broadly speaking six attitudes towards offenders: the retributive, the hostile, the moralistic, the paternalistic, the merciful, and the actuarial. After presenting each of these attitudes, I sum up my analysis by focusing on the Polanski sexual abuse case. I then introduce the concept of second-order attitudes, where egalitarianism is the attitude that consists of taking the same attitude towards all offenders, and particularism is the attitude that consists of adjusting your attitude to each offender. Finally, I briefly explain why a mix of the retributive and the merciful should be our default attitude. (shrink)

This article starts from a paradox and aims to solve it. On the one hand, although Drug Courts (DCs) are one of the most interesting penal innovations in recent years, running counter to the dominant retributive approach and the rival approach based on deterrence, they have surprisingly not attracted the attention of philosophers and therefore lack a solid philosophical foundation. On the other hand, although Pickard's ‘responsibility without blame’ approach looks very convincing on paper, its practical applications remain unclear outside (...) the clinical context. I argue that Pickard's approach is the theoretical framework that DCs need and that they are a compelling application of it: DCs do ascribe to participants various forms of responsibility (criminal ‘liability-responsibility’, responsibility of choice, responsibility for progress or failure, responsibility as answerability, tort liability) while striving to keep ‘affective blame’ at bay in order to help them regain their autonomy. However, I argue that some of the limitations of both this approach and DCs become apparent once we consider the ‘outer limits’ of DCs, in other words those who are terminated from DCs and those who refuse to enter DCs in the first place. (shrink)

Neuroscience has been proposed for use in the legal system for purposes of mind reading, assessment of responsibility, and prediction of misconduct. Each of these uses has both promises and perils, and each raises issues regarding the admissibility of neuroscientific evidence.

This is a slightly revised text of Jeffrie G. Murphy’s Presidential Address delivered to the American Philosophical Association, Pacific Division, in March 2006. In the essay the author reconsiders two positions he had previously defended—the liberal attack on legal moralism and robust versions of the retributive theory of punishment—and now finds these positions much more vulnerable to legitimate attack than he had previously realized. In the first part of the essay, he argues that the use of Mill’s liberal harm principle (...) against legal moralism cannot be cabined in such a way as to leave intact other positions that many liberals want to defend—in particular, certain fundamental constitutional rights and character retributivism in criminal sentencing. In the second part of the essay, he expresses serious doubts—some inspired by Nietzsche—about the versions of character retributivism that he had once enthusiastically defended and now describes himself as no more than a reluctant retributivist. (shrink)

The fair-play theory of punishment claims that the state is justified in imposing additional burdens on law-breakers, to remove the unfair advantage the latter have enjoyed by disobeying the law. From this perspective, punishment reestablishes a fair distribution of benefits and burdens among all citizens. In this paper, I object to this view by focusing on the case of civil disobedience. I argue that the mere illegality of this conduct is insufficient to establish the agent’s unfair advantage over his lawabiding (...) fellows, hence the imposition of additional burdens upon him through legal punishment. I articulate a broader account of citizens’ fair-play duties, able to capture disobedience as well as obedience to the law. While claiming that some law-breakers may not be treated as free-riders, I also gesture at the fact that some law-obeying citizens may not be ‘playing fair’: in some cases, a failure to engage in civil disobedience represents a failure to do one’s own part within the cooperative scheme of society. (shrink)

Desert plays a central role in most contemporary theories of retributive justice, but little or no role in most contemporary theories of distributive justice. This asymmetric treatment of desert is prima facie strange. I consider several popular arguments against the use of desert in distributive justice, and argue that none of them can be used to justify the asymmetry.

In Debating Brain Drain, Gillian Brock and Michael Blake both draw on a liberal moral- political foundation to address the issue, but they come to different conclusions about it. Despite the common ground of free and equal persons having a dignity that grounds human rights, Brock concludes that many medical professionals who leave a developing country soon after having received training there are wrong to do so and that the state may place some limits on their ability to exit, whereas (...) Blake infers that there is neither any wrongdoing on their part, nor rightful restrictions placed on them. In this article, rather than sort out which has the better interpretation of what liberalism entails, I consider the medical brain drain in light of an alternative normative framework, one informed by ideals of communion salient in the sub-Saharan moral tradition. I argue that a principle of prizing communal relationships more naturally entails Brock's conclusions than does her appeal to liberalism. (shrink)

Brian Barry's Justice as Impartiality is an important book. One of its contributions to the discipline is a characteristically clear presentation of what follows if one accepts a commitment to equality, and the reasonableness of continuing and profound disagreements about the nature of the good life. I take the argument of Justice as Impartiality to be an important next step in the attempt to give an account of the content of justice which is impartial, fair, or neutral between conceptions of (...) the good, and engaging with it has the great advantage that many of the criticisms that can be made of Barry apply to other liberal contractualist theories of social justice. It is faintly ironic that it is one of Barry's great virtues, his clarity, that makes it easier to see the problems inherent in the attempt to complete the impartialist project. I have not attempted below to offer a systematic summary and critique of Barry's book or any particular section of it. Instead I have opted to try to engage with the ideas that drive it at a more fundamental level. (shrink)

This paper considers characteristic views advanced in the past fifteen years that may be considered relatively sympathetic to student practices of cheating on graded assignments or exams. We detect and analyze typical fallacies that are recurrent in articles that promote a revisionist view of cheating as morally permissible. We offer a general, deontological argument that cheating is immoral. The efforts to justify student cheating take several forms. For example, it has been argued that cheating may be tolerated if the student (...) did not intend to cheat, perhaps because of a failure to understand the normal rules or expected procedures. We also argue that student collaboration in graded work constitutes cheating even if the instructor condones such collaboration. In a similar vein, we address the view that student copying is cheating even if the instructor alters the rules to allow such copying. This moral view can be applied to any cheating behavior, we argue. As a specific example, we demonstrate how it can be applied to the pedagogical recommendation that instructors should encourage their students to cheat in order to cultivate student skills in the area of cyber security. We also address the view that student cheating can be justified by situations in which the student believes that he/she is being subjected to an unfair or unethical overall learning environment. (shrink)

Psychopathy presents a difficult challenge to moral and criminal responsibility theorists. Persons with the disorder have an impaired capacity for empathy and other moral emotions, and fail to feel the force of moral considerations. They have some rational impairments, but they reason adequately to manipulate, con, and exploit their victims, and otherwise to engage successfully in antisocial behavior. Is it appropriate to hold them morally responsible for their wrongdoing? Should the law hold psychopaths criminally responsible? This essay discusses philosophical debates (...) involved in addressing these questions. (shrink)

Retributive approaches to the justification of legal punishment are often thought to place exacting and unattractive demands on state officials, requiring them to expend scarce public resources on apprehending and punishing all offenders strictly in accordance with their criminal ill deserts. Against this caricature of the theory, I argue that retributivists can urge parsimony in the use of punishment. After clarifying what parsimony consists in, I show how retributivists can urge reductions in the use of punishment in order to conserve (...) scarce resources for other valuable social purposes, minimize the foreseeable and adverse effects of legal punishment on the innocent, and accommodate the fact that existing societies fail in numerous ways to satisfy the conditions that make retributive punishment fully justified. (shrink)

T. M. Scanlon’s contractualism is a meta-ethical theory that explains moral motivation and also provides a conception of how to carry out moral deliberation. It supports non-consequentialism – the theory that both consequences and deontological considerations are morally significant in moral deliberation. Regarding the issue of punishment, non-consequentialism allows us to take account of the need for deterrence as well as principles of fairness, justice, and even desert. Moreover, Scanlonian contractualism accounts for permissibility in terms of justifiability: An act is (...) permissible if and only if it can be justified to everyone affected by it. This contractualist thesis explains why it is always impermissible to frame an innocent person, why vicarious punishment is impermissible, and why there has to be a cap on sentences. Contractualism therefore allows us to take deterrence as a goal of punishment without the excess of utilitarianism. This paper further argue that the resulting view is superior to pure retributivism. Finally, it shows why legal excuses and mitigation can be justified in terms of the notion of negative desert. (For access to this paper: http://www.tandfonline.com/eprint/sJ2JBVXkztyFMGmxS7tS/full ) . (shrink)

The article examines the relationship between a wrongdoer and his victim. Based on this examination, a justification for criminal punishment is proposed. It is argued that crime violates thea prioriequality of constituent boundaries and of infinite human value between the wrongdoer and the victim. Criminal punishment re-equalizes respective boundaries and infinite human value. To develop this argument, the article observes how subject-subject boundaries are essential for the formation of separateness between subjects - separateness which is recognized and acknowledged by them (...) in a cooperative process. The article further discusses the value of boundaries and the significance of theira prioriequality in every human relationship. It then shows how crime, which is intrusion of the victim’s boundaries, works to demolish the victim’s self-recognizing separateness and hence to create inequality in the parties’ value. Last, the article demonstrates that only punishment can reset the relationship between the parties and re-equate their (still infinite) human value in the relationship. (shrink)

One of the most potent motivations for retributivist approaches to punishment has been their apparent connection to an ethical background shaped by the Kantian notion of morally autonomous and rational human agency. The present article challenges the plausibility of this connection. I argue that retributivism subverts, rather than embodies, the normative consequences of moral autonomy, justifying a social practice that conflicts with the considered judgments that the proper recognition of moral autonomy would authorize. The core of my case is the (...) analysis of whether a punishment should be understood as a restriction of a criminal's freedom properly understood. I argue that the affirmative view faces serious difficulties that have not been, and are not likely to be, resolved by retributivist justifications that draw their support from Kantian moral theory. (shrink)

In this article, I argue that Hegel's complete and mature view of crime and punishment is more robust than many interpretations of the Unrecht passage in the ‘Abstract Right’ section of Hegel's Elements of the Philosophy of Right suggest. First, I explain the value of revisiting the interpretation of Hegel as a simple retributionist in the contemporary debate. Then, I look at Hegel's treatment of crime and punishment in the section on abstract right to show the role of punishment in (...) Hegel's account. Next, I argue that this needs to be situated in Hegel's broader social philosophy and that we can accomplish this by looking at how the Unrecht passage fits in the Elements of the Philosophy of Right’s dialectical structure. I do so by building on the sections on civil society and state in the part of Elements of the Philosophy of Right dealing with ethical life (Sittlichkeit), which include considerations of prevention and rehabilitation. I contend that this analysis reveals an account of punishment as more complicated than simple retribution. (shrink)

This paper provides a discussion of the role that emotions may play in the justification of punishment. On the expressivist account of punishment, punishment has the purpose of expressing appropriate emotional reactions to wrongdoing, such as indignation, resentment or guilt. I will argue that this expressivist approach fails as these emotions can be expressed other than through the infliction of punishment. Another argument for hard treatment put forward by expressivists states that punitive sanctions are necessary in order for the law (...) to be valid. But this justification of punishment, too, is unconvincing. There are no good reasons to assume that we have to resort to punitive measures in order to vindicate the law. I will then raise the more general worry whether there is any intelligible link at all between moral emotions such as indignation, resentment or guilt and retributive behaviour. I will finally conclude with some sceptical remarks on the moral worth of retribution. (shrink)

Using a case of intended but failed doping, the author seeks to answer the question of if an agent cheated when they intended to but failed in the case of doping due to inert, counterfeit drugs. The examination looks at the case using the concept of cheating and concludes by dividing the results of cheating into primary and secondary effects.

There is a common refrain in the literature on punishment that presumes the mutual exclusivity of defending retribution and adopting a humanistic or welfare-oriented outlook. The refrain, that if we want to be humane, or care about human welfare, we must abandon retributive punishment, anger, and resentment is readily repeated, endorsed, and relied upon. This article suggests that this opposition is false: retribution and welfare-orientation can not only be endorsed concomitantly, but are complimentary projects, and may even be grounded in (...) the same normative basis, such that if we endorse one we are already committed to ideas that ground reason to care about the other.My primary target will be claims that aim to undermine retributivism by demonstrating the desirability of welfare-orientation. If both can live together, demonstrating the attractiveness of one goes nowhere toward displacing the other. Further, establishing this claim invites further inquiry into classic questions about the “barbaric,” or “morally repugnant” credentials of retributivism. Confronting these claims will elucidate the consistency of adopting both retributive and welfare-oriented views, which, I suggest, can be jointly adopted and pursued. (shrink)

The proposal that the criminal justice system should focus on rehabilitation – rather than retribution, deterrence, or expressive denunciation – is among the least popular ideas in legal philosophy. Foremost among rehabilitation’s alleged weaknesses is that it views criminals as blameless patients to be treated, rather than culpable moral agents to be held accountable. This article offers a new interpretation of the rehabilitative approach that is immune to this objection and that furnishes the moral foundation that this approach has lacked. (...) The view rests on the principle that moral agents owe it to one another to maintain the dependability of their moral capacities. Agents who culpably commit criminal wrongs, however, betray an unacceptable degree of moral unreliability. Punishment, on this theory, consists in the enforcement of the duties that offenders have to reduce their own likelihood of recidivism. (shrink)

Chad Flanders has argued that retributivism is inconsistent with John Rawls’s core notion of public reason, which sets out those considerations on which legitimate exercises of state power can be based. Flanders asserts that retributivism is grounded in claims about which people can reasonably disagree and are thus not suitable grounds for public policy. This essay contends that Rawls’s notion of public reason does not provide a basis for rejecting retributivist justifications of punishment. I argue that Flanders’s interpretation of public (...) reason is too exclusionary: on it, public reason would rule out any prominent rationale for punishment. On what I contend is a better interpretation of public reason, whether retributivism would be ruled out as a rationale for punishment depends on whether a retributivist account can be constructed from shared political commitments in a liberal democracy. Some prominent versions of retributivism meet this requirement and so are consistent with public reason. (shrink)

Chad Flanders has argued that retributivism is inconsistent with John Rawls’s core notion of public reason, which sets out those considerations on which legitimate exercises of state power can be based. Flanders asserts that retributivism is grounded in claims about which people can reasonably disagree and are thus not suitable grounds for public policy. This essay contends that Rawls’s notion of public reason does not provide a basis for rejecting retributivist justifications of punishment. I argue that Flanders’s interpretation of public (...) reason is too exclusionary: on it, public reason would rule out any prominent rationale for punishment. On what I contend is a better interpretation of public reason, whether retributivism would be ruled out as a rationale for punishment depends on whether a retributivist account can be constructed from shared political commitments in a liberal democracy. Some prominent versions of retributivism meet this requirement and so are consistent with public reason. (shrink)

This paper attempts to establish that, and explain why, the practice of punishing offenders is in principle morally permissible. My account is a nonstandard version of the fair play view, according to which punishment 's permissibility derives from reciprocal obligations shared by members of a political community, understood as a mutually beneficial, cooperative venture. Most fair play views portray punishment as an appropriate means of removing the unfair advantage an offender gains relative to law-abiding members of the community. Such views (...) struggle, however, to provide a plausible account of this unfairly gained benefit. By contrast, on my account punishment 's permissibility follows more straightforwardly from the fair play view of political obligation: Specifically, the rule instituting punishment is itself among those rules with which members of the political community are obliged to comply. For criminal offenders, compliance requires submitting to the prospect of punishment. (shrink)

In this article I am going to propose a modification in the theory of pure restitution, in the hope that such modification will eliminate at least some sources of resistance to the theory, while preserving the theory's distinct place among the philosophical approaches to the institution of legal punishment.