"--Jeffrie Murphy, The Philosophical Review (forthcoming).

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)

Alfredo Traps in Durrenmatt’s tale discovers that he has brought off, all by himself, a murder involving considerable ingenuity. The mock prosecutor in the tale demands the death penalty “as reward for a crime that merits admiration, astonishment, and respect.” Traps is deeply moved; indeed, he is exhilarated, and the whole of his life becomes more heroic, and, ironically, more precious. His defense attorney proceeds to argue that Traps was not only innocent but incapable of guilt, “a victim of the (...) age.” This defense Traps disavows with indignation and anger. He makes claim to the murder as his and demands the prescribed punishment—death. (shrink)

How can a system of criminal punishment be justified? In particular can it be justified if the moral demand that we respect each other as autonomous moral agents is taken seriously? Traditional attempts to justify punishment as a deterrent or as retribution fail, but Duff suggests that punishment can be understood as a communicative attempt to bring a wrong-doer to repent her crime. This account is supported by discussions of moral blame, of penance, of the nature of the law's demands, (...) and of the proper meaning and purpose of the criminal process of trial and verdict: it deals both with the ideals that should inform a system of criminal law and the extent to which those ideals are actualised in existing institutions and practices. The conclusion is pessimistic: punishment cannot be justified within our legal system; and this gap between the ideal and the actual presents us with serious moral dilemmas. (shrink)

Part of the Studies in Crime and Public Policy series, this book, written by one of the top philosophers of punishment, examines the main trends in penal theorizing over the past three decades. Duff asks what can justify criminal punishment, and then explores the legitimacy of actual practices by examining what would count as adequate justification for them. Duff argues that a "communicative conception of punishment," which he presents as a third way between consequentialist and retributive theories, offers the most (...) fruitful way of understanding punishment's meaning and justification. Duff addresses such questions as how much sentences should be constrained by proportionality requirements; what modalities of punishment best communicate their intended meaning; and what decisionmaking procedures he envisions. This book will appeal to criminologists, philosophers, and others interested in theories of punishment. (shrink)

In this book, David Boonin examines the problem of punishment, and particularly the problem of explaining why it is morally permissible for the state to treat those who break the law in ways that would be wrong to treat those who do not? Boonin argues that there is no satisfactory solution to this problem and that the practice of legal punishment should therefore be abolished. Providing a detailed account of the nature of punishment and the problems that it generates, he (...) offers a comprehensive and critical survey of the various solutions that have been offered to the problem and concludes by considering victim restitution as an alternative to punishment. Written in a clear and accessible style, The Problem of Punishment will be of interest to anyone looking for a critical introduction to the subject as well as to those already familiar with it. (shrink)

In this reprint of Law's Empire,Ronald Dworkin reflects on the nature of the law, its given authority, its application in democracy, the prominent role of interpretation in judgement, and the relations of lawmakers and lawgivers to the community on whose behalf they pronounce. For that community, Law's Empire provides a judicious and coherent introduction to the place of law in our lives.Previously Published by Harper Collins. Reprinted (1998) by Hart Publishing.

This book aims to answer the question of why, and by what right, some people punish others. With a groundbreaking new theory, Matravers argues that the justification of punishment must be embedded in a larger political and moral theory. He also uses the problem of punishment to undermine contemporary accounts of justice.

Argues that role obligations are not marginal, "that they are central to morality and should be taken seriously." "A 'role obligation' is a moral requirement, which attaches to an institutional role, whose content is fixed by the function of the role, and whose normative force flows from the role." Rejects what he calls the doctrine of perfect adequacy which holds that role obligations are both comprehensive and transparent. Although this may have been plausible at earlier times, it is clearly implausible (...) now. It is the implausibility of this doctrine which has led theorists to accept the standard view: which holds that role obligations that are noncontractual are extremely problematic. Once we reject the doctrine of perfect adequacy, however, we can see the significance of role obligations more clearly. [The content of role obligations, Hardimon admits, is indeterminate in the sense that it is subject to constructive interpretation. This suggests, however, that the obligations are not the source of their normative power, rather it is their justifying value which explains why some role requirements are obligatory. This is confirmed by the rest of the article.] One thing that should lead us to question the notion that we do not have obligations of this sort by considering what it would be like to have no noncontractual role obligations. [This, however, does not establish that the force of role obligations flows from the obligations themselves.] One objection to NCR obligations is that they may require acting in accordance with an unjust institution. However, the solution here is the same as with contractual obligations: unjust institutions and contracts do not bind. Moves on to identity. "What I am assuming is that most of us do at least tacitly conceive of ourselves as family members and citizens, that these self-understandings are central to our own general self-conception, and that we can, through reflection come to recognize that we do in fact conceive of ourselves in these ways. If this is correct, then abandoning the idea that we have noncontractual role obligations would require radical revision of our self-conception, for we cannot give up the idea of nonctractual role obligation without also ceasing to conceive of ourselves as family members and citizens. What, after all, would it mean to say that we conceive of ourselves as family members but regard oursleves as having no familial obligations whatsoever?...The upshot of the last two paragraphs is that the cost of abandoning our conception of ourselves as family members and citizens would be enormous." [The moral significance of identity is unclear here - is the only normative element loss of identity with rejection of role obligations? What of the case when one's identity is caught up in a role which requires one to act immorally in other ways?] If impressment is our concern, it shouldn't be, for role obligations are not like impressment - one is born into them, not impressed [how does this make a difference?]. Role must be reflectively acceptable to produce genuine obligations. "Determining whether a given social role is reflectively acceptable involves stepping back from that role in thought and asking whether it is a role people ought to occupy and play. Determining that a given social role is reflectively acceptable involves judging that it is meaningful, rational, or good." [Hence, some independent value is going to do all the work for role obligations - the normative force of a role does not flow from the role itself.] Concerning voluntary roles - even if we agree that voluntary acceptance is essential, this omits important elements of role identification. "The key component of the idea of identifying with a role is that of conceiving of oneself as someone for whom the norms, that is, the evaluative standards associated with a role, its rights, duties, virtues, ideals, and supererogations, have reason-giving force. Here is the idea. If you identify with a role, its norms will function for you as reasons. If you are a judge who identifies with the role of judge, the fact that this is something judges do will give you a reason for doing it." [Clearly a non-sequiter - conceiving of oneself as having a reason does not give oneself a reason for doing - there must actually be a reason for doing something. Moreover, the content of the role may be in question - and here we are to engage in constructive interpretation, which is just to say that we are to identify some underlying value and this will serve to justify and determine the content of the role. Refers to usage of "look, its your job" as basis for substantiating claims about the normative force of identity. "But here a basic point of similarity emerges between contractual and noncontractual role obligations. People can and do identify with their noncontractual roles and not just with their contractual roles. And when they do, assuming that the appropriate background moral conditions are in place, the fact taht they occupy these roles will provide them with reasons for carrying out the tasks of their noncontractual roles...The basic form of motivation provided by identification with contractual and noncontractual role obligations is the same.". (shrink)