El problema de la exclusión social –situación de quienes encuentran cerrado el acceso a los bienes y servicios que permiten un básico desarrollo de la personalidad– constituye un desafío para la legitimidad del sistema social y las normas penales. Principalmente porque ello supone que en una misma sociedad hay individuos con estatus de persona –ciudadanos “normales”, incluidos– y otros que, por estar privados de los derechos asociados al estatus, están total o parcialmente excluidos del mismo. De cara a evitar su (...) instrumentalización penal se propone, en los delitos más conectados con la noción de ciudadanía que con la de dignidad, la atenuación o exclusión de la pena por disminución de la exigibilidad. Si el delito no se explica sólo por déficit de motivación del sujeto, sino también por un déficit de socialización imputable al propio sistema social, lo que tiene lugar es una especie de corresponsabilidad. (shrink)

In the dissertation, I consider the permissibility of a familiar set of responses to wrongdoing in our interpersonal relationships—those responses that constitute the imposition of some cost upon the wrongdoer. Some of these responses are, I argue, properly considered punishing, and some of these instances of punishing are in turn permissible. Punishment as I understand it is a broad phenomenon, common in and to all human relationships, and not exclusively or even primarily the domain of the state. Personal interactions expressive (...) of wrong-reactive attitudes like disappointment, anger, and guilt will sometimes constitute punishment so understood. I consider childhood punishment, self-punishment, and punishment between friends, concluding that punishment in the context of our personal relationships may sometimes be appropriate where undertaken not for the sake of deterrence nor of retributive justice, but for the sake of the aims constitutive of the relationship in which it occurs. (shrink)

Philosophers have highlighted a dilemma for the criminal law. Unjust, racist policies in the United States have produced conditions in which the dispossessed are more likely to commit crime. This complicity undermines the standing of the state to blame their offenses. Nevertheless, the state has reason to punish those crimes in order to deter future offenses. Tommie Shelby proposes a way out of this dilemma. He separates the state’s right to condemn from its right to punish. I raise doubts about (...) Shelby’s proposed resolution. So long as punishment is widely and reasonably understood to condemn crime, Shelby’s proposal does not resolve the dilemma. Moreover, there is reason to think the blaming aspect of punishment plays a role in the justification of its hard treatment. I conclude by considering some other ways out of the dilemma, focusing especially on how the United States might take responsibility for its complicity. (shrink)

The Limits of Blame, by KellyErin I. Cambridge, MA: Harvard University Press, 2018. Pp. 221.

There are puzzle cases that forfeiture theory has trouble handling, such as the issue of what happens to the rights of two qualitatively identical people who simultaneously launch unprovoked attacks against the other. Each person either has or lacks the right to defend against the other. If one attacker has the right, then the other does not and vice versa. Yet the two are qualitatively identical so it is impossible for one to have the right if the other does not. (...) The Problem of Symmetrical Attackers is a problem for non-consequentialism because the most plausible non-consequentialist theories assume that people have rights and can lose them by forfeiting them or waiving them. This article considers whether consequentialism can get around this problem. (shrink)

This paper will in good part concern six arguments taken as making up what is called the New Retributivism. It will also have to do with a seventh retributivist argument, and with the unexamined idea that reflection on punishment can lead a life of its own, independently of political philosophy. Both that idea and the arguments bear on the main question of whether punishment in our societies is right or wrong. It is a question not worn to a frazzle, as (...) is the one of how it is that punishment is right, which piously presupposes that it is. My answer to the impious question gets very little wear in this reactionary and, as it sometimes seems, vengeful time. For a particular reason, it will have to go undefended here. (shrink)

This article addresses the question what—if anything—we can and should expect from the practice of international criminal justice. It argues that neither retributive nor purely consequentialist, deterrence-based justifications give sufficient guidance as to what international criminal courts should aim to achieve. Instead, the legal theory of expressivism provides a more viable guide. Contrary to other expressivist views, this article argues for the importance of the trial, not just the punishment, as a form of expressivist messaging. Specifically, we emphasize the communicative (...) aspect of the judicial process. The final section, acknowledging the limited success of international criminal justice so far in terms of fulfilling its expressivist potential, diagnoses the main obstacles to, and opportunities for, expressivist messaging in the contemporary practice of international criminal justice. (shrink)

Injustice can undermine the standing states have to blame criminal offenders, and this raises a difficulty for a range of punishment theories that depend on a state's moral authority. When a state lacks the moral authority that flows from political legitimacy, its right to punish criminal lawbreakers cannot depend on a systematic claim about the legitimacy of the law. Instead, an unjust state is permitted to punish only criminal acts whose wrongness is established directly by morality, and only when criminal (...) guilt is established through legal procedures that meet minimal standards of fairness. These restrictions narrow the proper scope of criminal law and invalidate popular rationales for punishment that construe punishment as blame. (shrink)

This volume considers the ethics of policing and imprisonment, focusing particularly on mass incarceration and police shootings in the United States. The contributors consider the ways in which non-ideal features of the criminal justice system―features such as the prevalence of guns in America, political pressures, considerations of race and gender, and the lived experiences of people in jails and prisons―impinge upon conclusions drawn from more idealized models of punishment and law enforcement. There are a number of common themes running throughout (...) the chapters. One is the contrast between idealism and realism about justice. Another is the attention to harmful consequences, not only of prisons themselves, but to the events that often precede incarceration, including encounters with police and pre-trial detention. A third theme is the legacy of racism in the United States and the role that the criminal justice system plays in perpetuating racial oppression. (shrink)

The benefit-fairness theory of punishment, which is one of the most prominent retributive justifications of punishment, appeals to some benefits received by an offender in explaining why it is fair to impose punitive burdens on him. However, many see the two traditional versions of the theory, found in the works by writers such as Herbert Morris, Jeffrie Murphy, and George Sher, as being susceptible to fatal objections. In a recent paper, “Fairness, Political Obligation, and Punishment,” Zachary Hoskins offers a new (...) version of the benefit-fairness theory of punishment. I will highlight his original contribution by showing how his version of the benefit-fairness theory of punishment is different from the traditional versions in such a way that the main objections applying to the traditional versions do not apply to his account. Nonetheless, despite its many virtues, I will argue that Hoskins’s theory fails because it would entail disproportionate punishment. (shrink)

According to a number of influential views in penal theory, 1 one of the primary goals of the criminal justice system is to rehabilitate offenders. Rehabilitativemeasures are commonly included as a part of a criminal sentence. For example, in some jurisdictions judges may order violent offenders to attend anger management classes or to undergo cognitive behavioural therapy as a part of their sentences. In a limited number of cases, neurointerventions — interventions that exert a direct biological effect on the brain (...) — have been used as aids to rehabilitation, typically being imposed as part of criminal sentences, separate treatment orders, or conditions of parole. Examples of such interventions include medications intended to attenuate addictive desires in substance-abusing offenders and agents intended to suppress libido in sex offenders.This chapter reviews some of the ethical issues raised by the use of neurointerventions as aids to rehabilitation. (shrink)

A deterrence theory of punishment holds that the institution of criminal punishment is morally justified because it serves to deter crime. Because the fear of external sanction is an important incentive in crime deterrence, the deterrence theory is often associated with the idea of severe, disproportionate punishment. An objection to this theory holds that hope of escape renders even the severest punishment inapt and irrelevant. -/- This article revisits the concept of deterrence and defend a more plausible deterrence theory of (...) punishment—the wide-scope deterrence theory. The wide-scope theory holds that we must make the best use of all the deterrence tools available, including both external and internal sanctions. Drawing on insights from the early Confucian tradition, the article develops a deep deterrence theory, which holds that the most important deterrence tool involves internal, not external, sanction. It describes how internal sanctions deter potential offenses and why relevant policies need not conflict with liberalism’s respect for neutrality. (shrink)

Among analytic philosophers in the past few years there has been a growing commitment to taking Marx seriously. Since the publication in 1971 of John Rawls’ book A Theory of Justice there has been a growing commitment to taking problems of Justice and rights seriously. These two developments intersect in mutual criticism: Marx's radical critique challenges the resources of recent theories of rights and Justice, while the sophistication of recent theories raises the possibility that they escape Marx's most basic criticism.

This paper considers the theoretical and methodological origins of Marx's beliefs and attitudes towards classical moral theories and then their implications for two basic questions: (1) In what way, if any, was Marx suspicious and dismissive of classical moral theories (e.g., utilitarianism or Kantianism), and (2) what sort of moral theory can a proponent of Marx's moral views support? Here it is argued that there is a clear sense in which Marx would not have been automatically suspicious of moral ideas, (...) conceptions, discourse and the rest. But there is an equally clear sense in which he was. It is in the latter respect that Marx’s views must be explicated in terms of his theory of historical development, and it is only here that the full richness and impact of Marx’s views on moral philosophy can be understood and appreciated. (shrink)

En el trabajo, intento repensar la teoría penal de Carlos Nino, desarrollada durante sus estudios doctorales y posdoctorales, a la luz de su teoría de la democracia deliberativa, elaborada desde los años 80. Nino no tuvo la oportunidad de revisar plenamente sus estudios penales en la materia, luego de desarrollar su teoría de la democracia y este artículo se propone entonces dar algunos primeros pasos en esa dirección y explorar algunas posibles implicaciones de dicha tarea. In this work, I try (...) to re-think Carlos Nino’s theory about the Criminal Law, which he developed while he pursued his doctoral and post-doctoral studies, under the light of his deliberative theory of democracy, which he elaborated since the 1980s. Nino had no chance to develop this revision, so this article suggests ways to begin with this required re-elaboration. (shrink)

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

The article analyses the necessary conditions an argument for popular punishment would need to meet, and argues that it faces the challenge of a dilemma of reasonableness: either popular views on punishment are unreasonable, in which case they should carry no weight, or they are reasonable, in which case the reasons that support them, not the views, should carry weight. It proceeds to present and critically discuss three potential solutions to the dilemma, arguing that only an argument for the beneficial (...) effects of coherence between popular views and penal policy is persuasive, but that it makes popular punishment less important than proponents claim, and offers a justification proponents will find it difficult to advance. (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)

This article discusses the way in which substantive criminal law is generally taught in United States law schools and argues that more room should be given in these courses to familiarize students with the horrendous nature of much of our criminal law system—in particular the terrible conditions faced by most prison inmates after conviction.

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

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

This paper considers the justifiability of removing the right to vote from those convicted of crimes. Firstly, I consider the claim that the removal of the right to vote from prisoners is necessary as a practical matter to protect the democratic process from those who have shown themselves to be untrustworthy. Secondly, I look at the claim that offenders have broken the social contract and forfeited rights to participate in making law. And thirdly, I look at the claim that the (...) voting ban is essential part of the justified punishment of serious offenders. These arguments have in common the feature that they attempt to articulate the sense in which rights imply responsibilities, particularly that voting rights should be conditional on one’s having met one’s civic responsibilities. I argue that the only interpretation of this view that could justify prisoner disenfranchisement is that which thinks of disenfranchisement as fair and deserved retributive punishment for crime. Against widespread opposition to, and confusion about, the importance of retributive punishment, I offer a brief defence. However, I conclude that even if legitimate retributive purposes could in principle justify prisoner disenfranchisement, the significance of disenfranchisement is such that it should be reserved for the most serious crimes. (shrink)

A curious and comparatively neglected element of death penalty jurisprudence in America is my target in this paper. That element concerns the circumstances under which severely mentally disabled persons, incarcerated on death row, may have their sentences carried out. Those circumstances are expressed in a part of the law which turns out to be indefensible. This legal doctrine—competence-for-execution —holds that a condemned, death-row inmate may not be killed if, at the time of his scheduled execution, he lacks an awareness of (...) his impending death or the reasons for it. I argue that the law of CFE should be abandoned, along with the notion that it is permissible to kill the deeply disturbed just so long as they meet some narrow test of readiness to die. By adopting CFE, the courts have been forced to give independent conceptual and moral significance to a standard for competence that simply cannot bear the weight placed upon it. To be executable, CFE requires that a condemned prisoner meet a standard demonstrating an awareness of certain facts about his death. Yet this standard both leads to confusing and counter-intuitive results and is unsupported either by the reasons advanced by the courts on its behalf or by any of the standard theoretical justifications of criminal punishment. If executing the profoundly psychotic or delusional is wrong the law needs a better account of the wrong done when prisoners like Ford are killed. I suggest wherein that wrong might be located. (shrink)

Duff offered an argument for the conclusion that just or legitimate punishment of socially deprived offenders in our unjust society is impossible. One of the claims in his argument is that our courts have the standing to blame an offender only if our polity has the right to do so since our courts are acting as the representatives of, or to use the exact phrases by Duff, “in the name of”, or “on behalf of”, the whole polity. In this paper (...) I will challenge that claim. I will argue that the courts can be seen as acting, not on behalf of the whole polity, but only on behalf of a subset of its citizens, namely, the just citizens (i.e. the citizens who cannot be seen to have wronged the deprived offenders). (shrink)

Two recent discussions concerning punishment of the socially deprived reach conflicting conclusions. Andrew von Hirsch and Andrew Ashworth argue that we should sympathize with the predicament of the poor and therefore mitigate their sentences. Peter Chau disputes von Hirsch and Ashworth’s conclusion, contending that having to face strong temptations is not an appropriate ground for reducing anyone’s punishment for their crimes. I argue that neither von Hirsch and Ashworth’s account nor Chau’s critique of it is persuasive. I then take up (...) the challenge of showing why social deprivation renders punishment problematic. I contend that it establishes a perverse incentive structure that is persistent and powerful, requiring the disadvantaged to exercise self-control on an ongoing basis. Repeated acts of self-control are difficult, especially for youths whose skills at it are not yet fully developed. Also, in a variety of more and less subtle ways, social deprivation reduces the incentives for self-control and may work to stunt its development. In closing, I briefly consider the options for responding to the crimes of the chronically disadvantaged. (shrink)

The purpose of this paper is to provide a justification of punishment which can be endorsed by free will skeptics, and which can also be defended against the "using persons as mere means" objection. Free will skeptics must reject retributivism, that is, the view that punishment is just because criminals deserve to suffer based on their actions. Retributivists often claim that theirs is the only justification on which punishment is constrained by desert, and suppose that non-retributive justifications must therefore endorse (...) treating the people punished as mere means to social ends. Retributivists typically presuppose a monolithic conception of desert: they assume that action-based desert is the only kind of desert. But there are also personhood-based desert claims, that is, desert claims which depend not on facts about our actions, but instead on the more abstract fact that we are persons. Since personhood-based desert claims do not depend on facts about our actions, they do not depend on moral responsibility, so free will skeptics can appeal to them just as well as retributivists. What people deserve based on the mere fact of their personhood is to be treated as they would rationally consent to be treated if all they had in view was the mere fact of their personhood. We can work out the implications of this view for punishment by developing a hypothetical consent justification in which we select principles of punishment in the Rawlsian original position, so long as we are careful not to smuggle in the retributivist assumption that it is under our control whether we end up as criminals or as law-abiding citizens once we raise the veil of ignorance. (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.

This article addresses the theoretical difficulty of justifying the use of penal coercion in circumstances of marked, unjustified social inequality. The intuitive belief behind the text is that in such a context—that of an indecent State—justifying penal coercion becomes very problematic, particularly when directed against the most disfavored members of society.

This article criticizes the standard way philosophers pose issues about the core practices of criminal justice institutions. Attempting to get at some of the presuppositions of posing these issues in terms of punishment, I construct a revised version of Rawls's case, a revision based on actual features of contemporary criminal justice practices in the USA. In addressing the implications of, as I call it, some connections are made to current philosophical discussions about race. I conclude with brief remarks about the (...) importance of race to philosophical discussion as such. (shrink)

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)

I argue that contemporary liberal theory cannot give a general justification for the institution or practice of punishment, i.e., a justification that would hold across a broad range of reasonably realistic conditions. I examine the general justifications offered by three prominent contemporary liberal theorists and show how their justifications fail in light of the possibility of an alternative to punishment. I argue that, because of their common commitments regarding the nature of justification, these theorists have decisive reasons to reject punishment (...) in favor of a non-punitive alternative. I demonstrate the possibility of this alternative by means of a careful examination of the nature of punishment, isolating one essential characteristic—the aim to impose suffering—and showing how this characteristic need not guide enforcement. There is logical space for a forceful and coercive, yet non-punitive method of enforcement. This fact poses difficulties for many classical and contemporary justifications of punishment, but it poses particularly crippling problems for general liberal justifications. (shrink)

I defend a deontological social contract justification of punishment for philosophers who deny free will and moral responsibility (FW/MR). Even if nobody has FW/MR, a criminal justice system is fair to the people it targets if we would consent to it in a version of original position deliberation where we assumed that we would be targeted by the justice system when the veil is raised. Even if we assumed we would be convicted of a crime, we would consent to the (...) imprisonment of violent criminals if prison conditions were better than the state of nature but deterring enough to prevent the state of nature. (shrink)

Philosophers traditionally interpret Kant as a retributivist, but modern interpreters, with reference to Kant’s theory of justice and problematic passages, instead propose penal theories that mix retributive and deterrent features. Although these mixed penal theories are substantively compelling and capture the Kantian spirit, their dual aspects lead to a justificatory conflict that generates an apparent dilemma. To resolve this dilemma and clear the ground for these mixed theories, I will outline and reinterpret Kant’s penal theory by situating it in his (...) broader moral and political philosophy. This move grounds the followability requirement, which is necessary to resolve the dilemma. (shrink)

This paper examines the practice of using predictive systems to lengthen the prison sentences of convicted persons when the systems forecast a higher likelihood of re-offense or re-arrest. There has been much critical discussion of technologies used for sentencing, including questions of bias and opacity. However, there hasn’t been a discussion of whether this use of predictive systems makes sense in the first place. We argue that it does not by showing that there is no plausible theory of punishment that (...) supports it. (shrink)

In 2020, after the first Covid-19 lockdown, several countries implemented a policy of contact tracing and self-isolating for individuals who crossed borders or came into contact with infected people. To enforce these restrictions, some states imposed very harsh monetary penalties for people who violated them. Behind these harsh fines lies an instrumental rationale. They allow the state to avoid implementing a system of labor-intensive and costly surveillance and enforcement. In this article I argue that such severe penalties are extremely unjust. (...) In order not to expose citizens to the risk of being excessively fined, governmental institutions should instead intensify controls. I argue that they owe it to their citizens to increase the surveillance of compliance with self-isolation obligations. (shrink)

Punishment is a grave intrusion into individual liberty, yet in most liberal criminal justice systems, including England and Wales, those punished are rarely directly engaged in determining their sentence. Consequently, the offender’s agency in respect of sentence—i.e. the offender’s capacity to play an active part in the sentencing process—is limited. Drawing on existing theories of punishment, the article argues that there may be justifications and scope for allowing offenders to exercise agency in a state-centred sentencing process, even though this scope (...) is inevitably limited. It aims to develop a conceptual account of an ‘agentic’ sentencing system, arguing this should be based on the paradigm of a dialogue between the judge and offender. To preserve the state’s fundamental role in sentencing, constraints should be placed on the exercise of agency. The proposed model embodies a conception of sentencing as a decision-making process to be done _with_ offenders, rather than _to_ offenders. Nonetheless, while some objections can be rebutted, others demonstrate the gap between the theoretical ideal of respecting the offender’s agency at sentencing and how an agentic sentencing system might function in practice. (shrink)

El artículo expone dos visiones acerca de la legitimidad del castigo en contextos de exclusión social. En la primera parte, uno de los autores defiende la idea de que los Estados que incumplen con obligaciones legales previas no pueden inculpar a quienes cometan delitos vinculados con ese incumplimiento. No pueden hacerlo porque no tienen el estatus moral para hacerlo de acuerdo a dos objeciones: la de complicidad y la de hipocresía. En la segunda parte, la segunda autora critica esta solución (...) al sostener que la falta de reciprocidad que caracteriza a la relación política vuelve inaplicables las objeciones de hipocresía y complicidad al ámbito del castigo penal estatal. (shrink)

In the 1970s and 1980s, a handful of legal theorists addressed the problem of criminal justice for offenders who faced criminogenic social disadvantages. Their discussions were provocative but alternatively unpersuasive and underdeveloped. More recently, in the wake of mass incarceration in America, philosophers have put forth new analyses that make important headway but remain scattered, partial, and in need of a systematic and integrated review. In this article, I reconstruct and critique the most prominent and well-developed explanations yet offered of (...) the distinctive moral problems that offenders’ criminogenic social disadvantages may pose for criminal justice. I conclude that some views are misguided, others are unduly limited, and one – based on the ideals of fair opportunity to avoid crime and punishment – is particularly promising but as yet underdeveloped. (shrink)

Abolitionism is the view that if no one is responsible, then we ought to abandon the reactive attitudes. Proponents suggest that reactive attitudes can be replaced in our emotional repertoire by non-reactive analogues. In this paper, I dispute and reject a common challenge to abolitionism according to which the reactive attitudes are necessary for protesting unfairness and maintaining social harmony. While other abolitionists dispute the empirical basis of this objection, I focus on its implications. I argue that even if non-reactive (...) analogues cannot perform the interpersonal and social functions of reactive attitudes, it does not follow that the losses of abandoning them outweigh the gains of retaining them. The force of the challenge rests on a mistake, identified by John Stuart Mill among others, that is common when evaluating entrenched social practices. (shrink)

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In this paper, I defend fairness-based retributivism against two important objections, the no-benefit objection and the social injustice objection. I argue that the theory can defeat the no-benefit objection by developing an account of how crimes can be sources of unfairness by inflicting losses on people, and that it can blunt the social injustice objection by toning down the theory’s distributive aspirations. I conclude that fairness-based retributivism, contrary to received wisdom, merits further attention from legal and political philosophers.

Among analytic philosophers in the past few years there has been a growing commitment to taking Marx seriously. Since the publication in 1971 of John Rawls’ bookA Theory of Justicethere has been a growing commitment to taking problems of Justice and rights seriously. These two developments intersect in mutual criticism: Marx's radical critique challenges the resources of recent theories of rights and Justice, while the sophistication of recent theories raises the possibility that they escape Marx's most basic criticism.