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

David Boonin has recently argued that although no existing theory of legal punishment provides adequate moral justification for the practice of punishing criminal wrongdoing, compulsory victim restitution (CVR) is a morally justified response to such wrongdoing. Here I argue that Boonin’s thesis is false because CVR is a form of punishment. I first support this claim with an argument that Boonin’s denial that CVR is a form of punishment requires a groundless distinction between a state’s response to a criminal offense (...) and its response to an offender’s failure to comply with the sanctions imposed for that offense. I then suggest that this argument points to a definition of punishment that not only meets Boonin’s own desiderata for a definition of punishment but also implies that CVR is a form of punishment. Finally, I argue that CVR is a form of punishment even under Boonin’s own proposed definition of punishment. -/- . (shrink)

Punishment involves deliberating harming individuals. How, then, if at all, is it to be justified? This, the first of three papers on the philosophy of punishment (see also 'Punishment: Nonconsequentialism' and 'Punishment: The Future'), examines attempts to justify the practice or institution according to its consequences. One claim is that punishment reduces crime, and hence the resulting harms. Another is that punishment functions to rehabilitate offenders. A third claim is that punishment (or some forms of punishment) can serve to make (...) restitution to victims, and a fourth is that it can strengthen social values. The paper examines these claims, and finally considers pluralist theories which combine retributive and harm-reductive or utilitarian considerations. (Retributive theories are examined in their own right in 'Punishment: Nonconsequentialism'.). (shrink)

In this paper, we offer a defense of non-punitive measures as morally justified responses to crime within a framework of society as a fair system of cooperation among free and equal individuals. Our argument proceeds in three steps. First, we elaborate on the premises of our argument: we situate criminal acts within a model of society as a fair system of cooperation, identify the types of unfair disadvantages crimes bring about, and consider the social aim of the criminal justice system. (...) Next, we reject the claim defended by fair-play retributivists that fairness considerations make punishment a necessary response to criminal acts. In the last step, we demonstrate that it is rather non-punitive responses to crime that are warranted under the principle of fairness and, as such, are morally justified. We conclude the paper by rejecting two possible objections to our defense: the “responsibility gap” and the “victims’ claim to justice” objections. (shrink)

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 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)

Incarceration remains the foremost form of sentence for serious crimes in Western democracies. At the same time, the management of prisons and of the prison population has become a major real-world challenge, with growing concerns about overcrowding, the offenders’ well-being, and the failure of achieving the distal desideratum of reduced criminality, all of which have a moral dimension. In no small part motivated by these practical problems, the focus of the present article is on the ethical framework that we use (...) in thinking about and administering criminal justice. I start with an analysis of imprisonment and its permissibility as a punitive tool of justice. In particular, I present a novel argument against punitive imprisonment, showing it to fall short in meeting two key criteria of just punishment, namely (i) that the appropriate individual is being punished, and (ii) that the punishment can be adequately moderated to reflect the seriousness of the crime. The principles I argue for and that the aforementioned analysis brings to the fore, rooted in the sentient experience, firstly of victims, and not only of victims but also of the offenders as well as the society at large, then lead me to elucidate the broader framework of jurisprudence that I then apply more widely. Hence, while rejecting punitive imprisonment, I use its identified shortcomings to argue for the reinstitution of forms of punishment that are, incongruently, presently not seen as permissible, such as corporal punishment and punishments dismissed on the basis of being seen as humiliating. I also present a novel view of capital punishment, which, in contradiction to its name, I reject for punitive aims, but which I argue is permissible on compassionate grounds. (shrink)

Philosophy and Phenomenological Research, Volume 104, Issue 3, Page 784-791, May 2022.

Philosophy Compass, Volume 17, Issue 5, May 2022.

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)

Nathan Hanna has recently argued against a position I defend in a 2013 paper in this journal and in my 2016 book on punishment, namely that we can punish someone without intending to harm them. In this discussion note I explain why two alleged counterexamples to my view put forward by Hanna are not in fact counterexamples to any view I hold, produce an example which shows that, if we accept a number of Hanna’s own assumptions, punishment does not require (...) an intention to harm, and discuss whether a definition and counter-example approach is the best way to proceed in the philosophy of punishment. I conclude with a brief exegetical discussion of H.L.A Hart’s Prolegomenon to the Principles of Punishment. (shrink)

Most punishment theories acknowledge neither the full extent of the harms which punishment risks, nor the caring practices which punishment entails. Consequently, I shall argue, punishment in most of its current conceptualizations is inconsistent with treating offenders as equals qua persons. The nature of criminal punishment, and of our interactions with offenders in punishment decision-making and delivery, risks causing harm to offenders. Harm is normalized when central to definitions of punishment, desensitizing us to unintended harms and obscuring caring practices. Offenders (...) may be partially silenced and excluded by mainstream criminal justice practices which limit interaction between offenders and practitioners. When we ignore significant harms, or silence and exclude, we treat others as passive non-subjects. This partially objectifies offenders, and is inconsistent with treatment as equals. Penal theories employing harm-centred and harm-normalizing definitions of punishment can provide few resources to help practitioners either avoid, or recognize and respond to, harms. Care ethics, by contrast, motivates the avoidance of harm, ongoing inclusive engagement, and respectful interaction with others. I argue that defining punishment without presupposing harm facilitates the identification of morally problematic harms, and recognition of caring practices. I offer a principled argument, and political and pragmatic supplementary arguments, for responding to offenders without intentional harm and with care. Principles drawn from care ethics can help to strengthen mainstream criminal practices by structuring decision-making and action. Bottom-up alternative criminal justice practices share some values with these proposed guiding principles, allowing a partial test of the principles. I consider examples of restorative justice practices, therapeutic jurisprudence, community justice and other problem-solving court practices, in addition to considering how well mainstream punishment practices measure up to these principles. My analysis illuminates the strengths and weaknesses of the principles, and how they might contribute to securing treatment as equals for offenders in mainstream practices. (shrink)

The conclusion of this paper will be that e-sports are not sports. I begin by offering a stipulation and a definition. I stipulate that what I have in mind, when thinking about the concept of sport, is ‘Olympic’ sport. And I define an Olympic Sport as an institutionalised, rule-governed contest of human physical skill. The justification for the stipulation lies partly in that it is uncontroversial. Whatever else people might think of as sport, no-one denies that Olympic Sport is sport. (...) This seeks to ensure that those who might wish to dispute my conclusion might stay with the argument at least for as long as possible. Secondly, the justification for the stipulation lies partly in its normativity—I have chosen an Olympic conception of sport just because it seems to me to offer some kind of desirable version of what sport is and might become. Thirdly, I give examples which show how prominent promoters of e-sports agree with my stipulation, as evidenced by their strenuous attempts to comply with it i... (shrink)

This article identifies two mistakes commonly made about the concept of punishment. First, confusion exists about when an analysis of punishment counts as retributive, and when as justificatorily n...

Dictionaries distinguish the following senses of ‘punishment’:the act of punishing, or the fact of being punished - where ‘punish’ is defined as: an act of public authority causing an offender to suffer for an offense. As In: ‘the respectable not only obey the law, but punish those who refuse to do so’.that which is inflicted as a penalty for an offense. As in: ‘all punishments are to be carried out in the Barrack Yard’, ‘fit the punishment to the crime’.severe handling (...) or treatment causing heavy damage, injury or loss. As in: ‘the fighter had been subjected to heavy punishment in his losing bout’, ‘the ships received considerable punishment from the batteries’. (shrink)

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

_Historical and contemporary philosophical writings on punishment._.

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

This article will begin by examining the extent to which R. S. Peters merited the charge of analytic philosopher. His background in social psychology allowed him to become more pragmatic and grounded in social conventions and ordinary language than the analytic philosophers associated with empiricism, and his gradual shift from requiring internal consistency to developing a notion of ?reasonableness?, in which reason could be tied to passion, grounded him in an idiosyncratic notion of ethics which included compassion and virtue as (...) well as reason. I describe his position on ethics as a systemic one of principled pragmatism. (shrink)

Discussion concerning the meaning and analysis of “punishment” has centered, in large measure, on claims for a logical connection between “punishment” and “guilt.” However, more and more in the literature focus has shifted from guilt as the defining feature of “punishment” to guilt as only one of many constitutive conditions satisfaction of which is necessary for standard cases with allowance made for other correct, though secondary, uses of the term.

Dictionaries distinguish the following senses of ‘punishment’:the act of punishing, or the fact of being punished - where ‘punish’ is defined as: an act of public authority causing an offender to suffer for an offense. As In: ‘the respectable not only obey the law, but punish those who refuse to do so’.that which is inflicted as a penalty for an offense. As in: ‘all punishments are to be carried out in the Barrack Yard’, ‘fit the punishment to the crime’.severe handling (...) or treatment causing heavy damage, injury or loss. As in: ‘the fighter had been subjected to heavy punishment in his losing bout’, ‘the ships received considerable punishment from the batteries’. (shrink)

Most of the standard arguments against the retributive theory of punishment are hardly new. That the retributive view of punishment is but a rationalization of a primitive urge for revenge; that the retributivists, instead of providing an answer to the question about the source of our moral right to add a new evil to an already perpetrated one , simply assert dogmatically that punishment is an intrinsic good, i.e. something that needs no further moral justification; that it is impossible to (...) apply the lex talionis in practice; that the retributivist thesis that the criminal has a right to punishment is absurd, because the criminal himself would be the first to deny that he has any such right; that the retributive theory is incompatible with the claims of forgiveness and mercy; that the practical consequences of the theory are conservative, the theory itself being in fact an apology for the existing laws and the existing social order; that the Hegelian idea of punishment as a ‘negation’ or ‘annulment’ of crime is either unintelligible or essentially utilitarian in character–most of this had been said already in the last century, or even earlier. All these arguments are still in use. 1 But in recent literature–in a number of papers published in the last twenty years or so–we find a new argument against the retributive theory. It is only natural that this particular argument should not have been used earlier: methodologically it is typical of a philosophical orientation which emerged only in our century–analytical philosophy. (shrink)

T he Question of punishment and its justification has been a major preoccupation in recent philosophy of law. The reasons for this growing concern are not difficult to discover. Both philosophers and jurists have become increasingly sceptical of traditional theories of legal punishment. Each of these inherited theories was designed to establish criteria for the recognition and appraisal of punishment as a legal institution. However, alternative theories emphasised different and often conflicting criteria. Some theories emphasised moral desert and retribution, while (...) others appealed to the social utilities of punishment. Failure to reconcile these diverse philosophical viewpoints, through sustained debate over two centuries, has been a major source of intellectual dissatisfaction. (shrink)

This paper describes developments in punishment theory since the middle of the twentieth century. After the mid–1960s, what Stanley I. Benn called “preventive theories of punishment”—whether strictly utilitarian or more loosely consequentialist like his—entered a long and steep decline, beginning with the virtual disappearance of reform theory in the 1970s. Crowding out preventive theories were various alternatives generally (but, as I shall argue, misleadingly) categorized as “retributive”. These alternatives include both old theories (such as the education theory) resurrected after many (...) decades in philosophy’s graveyard and some new ones (such as the fairness theory). Only in the last decade or so have new vares o “consequentialism” appeared to dilute a debate among philosophers that had become almost entirely about “retributivism”. I shall describe this trend in more detail. The description will be less an update of my 1990 survey than a rethinking of it. The conclusion I draw from this rethinking is that we need to drop the utilitarian–retributivist (and nonconsequentialist–nonconsequentialist) distinction in favor of one sorting punishment theories according to whether they rely in part on empirical considerations (externalist theories) or instead rely (almost) entirely on conceptual relations (internalist theories). (shrink)