Why do American ghettos persist? Decades after Moynihan’s report on the black family and the Kerner Commission’s investigations of urban disorders, deeply disadvantaged black communities remain a disturbing reality. Scholars and commentators today often identify some factor―such as single motherhood, joblessness, or violent street crime―as the key to solving the problem and recommend policies accordingly. But, Tommie Shelby argues, these attempts to “fix” ghettos or “help” their poor inhabitants ignore fundamental questions of justice and fail to see the urban poor (...) as moral agents responding to injustice. (shrink)

Traditional justifications of punishment, deterrence theory and retributivism, are subject to counterexamples that show that they do not explain why generally we have positive reason to punish those who commit serious crimes. Nor do traditional views sufficiently explain why criminals cannot reasonably object to punishment on the grounds that it deprives them of goods to which they are usually entitled. I propose an alternative justification of punishment, grounded in its blaming function. According to the “reactive theory,” punishment is justified because (...) it expresses the appropriate indignation of the community. I argue that this blaming function provides a superior account of the positive reason to punish and of why serious criminals cannot reasonably object to their punishment. (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)

In this follow up to I Was Wrong: The Meanings of Apologies, Nick Smith expands his ambitious theories of categorical apologies to civil and criminal law. After rejecting court-ordered apologies as unjustifiable humiliation, this book explains that penitentiaries were originally designed to bring about penance - something like apology - and that this tradition has been lost in the assembly line of mass incarceration. Smith argues that the state should modernize these principles and techniques to reduce punishments for offenders who (...) demonstrate moral transformation through apologizing. Smith also explains the counterintuitive situation whereby apologies come to have considerable financial worth in civil cases because victims associate them with priceless matters of the soul. Such confusions allow powerful wrongdoers to manipulate perceptions to disastrous effect, such as when corporations or governments assert that apologies do not equate to accepting blame or require reform or redress. (shrink)

‘No matter what the grievance, and I'm sure that the Palestinians have some legitimate grievances, nothing can justify the deliberate targeting of innocent civilians. If they were attacking our soldiers it would be a different matter.’ (Dr. Zvi Shtauber, Israeli Ambassador to the United Kingdom, BBC Radio 4, May 1, 2003).

A number of jurisdictions, including England and Wales after their adoption of the 1991 Criminal Justice Act, require that sentences be `proportionate' to the severity of the crime. This book, written by the leading architect of `just deserts' sentencing theory, discusses how sentences may be scaled proportionately to the gravity of the crime. Topics dealt with include how the idea of a penal censure justifies proportionate sentences; how a penalty scale should be `anchored' to reduce overall punishment levels; how non-custodial (...) penalties should be graded and used; and how political pressures impinge on sentencing policies. (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)

A number of philosophers have recently argued that we should interpret the debate over moral responsibility as a debate over the conditions under which it would be “fair” to blame a person for her attitudes or conduct. What is distinctive about these accounts is that they begin with the stance of the moral judge, rather than that of the agent who is judged, and make attributions of responsibility dependent upon whether it would be fair or appropriate for a moral judge (...) to react to the agent in various (negative) ways. This is problematic, I argue, because our intuitions about whether and when it would be fair to react negatively to another are sensitive to a host of considerations that appear to have little or nothing to do with an agent’s responsibility or culpability for her attitudes or behavior. If this is correct, then theories which make attributions of responsibility dependent upon the appropriateness of our reactions as moral judges will turn out to be fundamentally misguided. (shrink)

This essay is about the difficulties of doing criminal justice in the context of severe social injustice. Having been marginalized as citizens of the larger community, those who are victims of severe social injustice are understandably alienated from the dominant political institutions, and, not unreasonably, disrespect their authority, including that of the criminal law. The failure of equal treatment and protection and the absence of anything like fair and decent life prospects for the members of the marginalized populations erode the (...) basis for its allegiance to demands of the political community. The criminal law thus occupies a problematic normative position with respect to lawbreakers in this population; in many cases, it finds itself in the position of convicting them for crimes for which the political community itself bears some significant responsibility. The attempt to administer criminal justice therefore faces a serious moral predicament; on the one hand, criminal law has a right and an.. (shrink)

Argues that the War on Drugs and policies that deny convicted felons equal access to employment, housing, education and public benefits create a permanent under-caste based largely on race. Reprint. 12,500 first printing.

As official apologies by political, corporate, and religious leaders becoming increasingly commonplace – offered in response to everything from personal wrongdoing to historical oppression and genocide – providing a plausible account of what such apologies can and cannot accomplish is of paramount importance. Yet reigning theories of apology typically conceive of them primarily as moral and not political phenomena, often modeling official apologies after interpersonal ones. This risks distorting the meaning and function of political apologies, while holding them to an (...) impossible standard. In this paper, I argue that we require a normative theory of official apologies as political practice, and that crucial resources for this theory can be found in Hannah Arendt’s account of meaningful speech and action. In the Human Condition, Arendt privileges what she calls political speech and action as the highest category of human activity, which she identifies according to the following features: i) it can only take place with others; ii) it forces the agent to risk something by disclosing him or herself; iii) it creates a meaningful narrative; and, iv) it engenders some new relationship among those involved. These features, taken together, are a very good description of a successful apology. Furthermore, Arendt’s account of political speech depends upon her account of political forgiveness and political promising, two practices closely linked to the emerging practice of official state apology. In particular, I argue, theorizing apologies as Arendtian speech draws our attention to hitherto overlooked or underemphasized features of apologies and their functions, such the role they play – both powerful and problematic – in establishing authoritative narratives. (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)

The paper addresses the question of the appropriateness of a Congressional apology for American slavery. After offering an account of what an apology entails, I consider the claim that today's Congress fails to stand in the right relation to the guilt of American slavery to apologize for it. I argue that, while the current Congress and the constituency it represents do not bear a guilt that would permit it to apologize FOR slavery, it has inherited a guilt RELATED TO slavery (...) for which it is appropriate for it to apologize. (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)

I begin by discussing the ways in which a would‐be blamer's own prior conduct towards the person he seeks to blame can undermine his standing to blame her (to call her to account for her wrongdoing). This provides the basis for an examination of a particular kind of ‘bar to trial’ in the criminal law – of ways in which a state or a polity's right to put a defendant on trial can be undermined by the prior misconduct of the (...) state or its officials. The examination of this often neglected legal phenomenon illuminates some central features of the criminal law and the criminal process, and some of the preconditions for the legitimacy of the criminal law in a liberal republic. (shrink)

The punishment of criminals is a topic of long-standing philosophical interest since the ancient Greeks. This interest has focused on several considerations, including the justification of punishment, who should be permitted to punish, and how we might best set punishments for crimes. This entry focuses on the most important contributions in this field. The focus will be on specific theoretical approaches to punishment including both traditional theories of punishment (retributivism, deterrence, rehabilitation) and more contemporary alternatives (expressivism, restorative justice, hybrid theories, (...) unified theories) with an additional section on capital punishment, perhaps the particular form of punishment that has received the most sustained philosophical attention. These theories of punishment address two important questions: first, who should be permitted to punish and, secondly, who should be permitted to be punished. These questions then concern the justification of punishment and its distribution. While the majority today often identifies their theories as retributivist, there is a great diversity of theories defended. This entry will highlight the leading work for each view. (shrink)

Contemporary theories of criminalisation address, with varying emphasis, themes concerning the harmfulness and the wrongfulness of the conduct. In his article for the present issue, Antony Duff relies chiefly on notions of wrongfulness as the basis for his proposed criminalisation doctrines; whereas in their 2011 volume on criminalisation, Andrew Simester and Andreas von Hirsch invoke both wrongfulness and harmfulness as prerequisites for prohibiting conduct. The present article assesses the comparative merits of these approaches, and argues in favour of the latter, (...) two-element perspective. In this article, the author puts forward a number of reasons suggesting why the two-element approach is preferable. These reasons include, firstly, an inductive argument—that the kinds of wrongful conduct for which criminalisation seems a plausible response are those that include an element of harm or risk of harm. Secondly, a defining role for the state is one of resource-protection: of safeguarding the means and resources through which citizens can live good lives. Thus the concept of citizens’ living resources—and the related conception of harm—should be made a constitutive and explicit element of criminalisation theory, rather than subsuming resource-protection under a general rubric of wrongfulness. Thirdly, a two-element approach provides reciprocal limiting principles concerning the scope of criminalisation. One can, for example, employ wrongfulness requirements to limit the criminalisation of conduct that has remote harmful consequences; and, conversely, use a harmfulness requirement as means for restricting the criminalisation of wrongful acts. (shrink)

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

Punishment is a topic of increasing importance for citizens and policy makers. Why should we punish criminals? Which theory of punishment is most compelling? Is the death penalty ever justified? These questions and many others are addressed in this highly engaging guide. Punishment is a critical introduction to the philosophy of punishment offering a new and refreshing approach that will benefit readers of all backgrounds and interests. This is the first critical guide to examine all leading contemporary theories of punishment, (...) including the communicative theory of punishment, restorative justice, and the unified theory of punishment. There are also several case studies examined in detail including capital punishment, juvenile offending, and domestic abuse. -/- Punishment highlights the problems and prospects of different approaches in order to argue for a more pluralistic and compelling perspective that is novel and groundbreaking. -/- Introduction; Retributivism; Deterrence; Rehabilitation; Restorative Justice; Rawls, Hart, and "mixed" theories; Expressivism; The Unified Theory; Capital Punishment; Juvenile Offending; Domestic Abuse; Sexual Crimes; Conclusion; Index. (shrink)

This paper aims to offer an account of state apologies that discloses their potential function as catalysing political acts within broader processes of democratic change. While lots of ink has been spilled on analysing the relationship between apologies and processes of recognising the victims and their descendants, more needs to be said about how apologies can challenge the presence of self-congratulatory, distorted visions of history within the public sphere of liberal democracies. My account will be delineated through a critical engagement (...) with one very frequent objection to public apologies, namely that they unnecessarily taint the self-image of the community. Insights from the philosophy of judgment will be used to show how, in the form of an exemplary judgment, an official “sorry” can inspire societal reflection about an unsavoury past. (shrink)

Husak's primary goal is to defend a set of constraints to limit the authority of states to enact and enforce criminal offenses. In addition, Husak situates this endeavor in criminal theory as traditionally construed. This book urges the importance of this topic in the real world, while most Anglo-American legal philosophers have neglected it.

Should we be concerned with, or alarmed or outraged by, the insincerity and hypocrisy of politicians who apologize for historical injustice? This paper argues that the correct reply to this question is: sometimes, but not always. In order to establish what types of insincerity must be avoided, Judith Shklar?s hierarchy of ordinary vices is critically revisited. Against Shklar?s overly benign account of hypocrisy, the paper then tries to demonstrate that only institutional and harmful forms of hypocrisy must be rejected in (...) political apologies for historical injustice. Employing Melissa Nobles? ?membership theory?, this paper defends the claim that the sincerity standard for political apologies is, in stark contrast to apologies between individuals, agent independent. This means that in political apologies, rather than focusing on the remorse and regret of the agent who apologizes, we must primarily examine the apology?s consequences in terms of renegotiating the legal, political and affective dimensions of citizenship. In domestic affairs, the paper shows that apologies can only be considered sincere if they push the polity towards a more inclusive conception of membership in the political community. (shrink)

Should the state punish its disadvantaged citizens who have committed crimes? Duff has recently argued that where disadvantage persists the state loses its authority to hold individuals to account and to punish for criminal wrongdoings. I here scrutinize Duff’s argument for the claim that social justice is a precondition for the legitimacy of state punishment. I sharpen an objection to Duff’s argument: with his framework, we seem unable to block the implausible conclusion that where disadvantage persists the state lacks the (...) authority to punish any citizen for any crime. I then set out an alternative line of argument in support of the claim that social deprivation can threaten the states legitimate punitive authority. I argue that a penal system must incorporate certain proportionality principles, and that these principles cannot both be met where citizens suffer from deprivation. (shrink)

I begin by discussing the ways in which a would-be blamer's own prior conduct towards the person he seeks to blame can undermine his standing to blame her. This provides the basis for an examination of a particular kind of 'bar to trial' in the criminal law – of ways in which a state or a polity's right to put a defendant on trial can be undermined by the prior misconduct of the state or its officials. The examination of this (...) often neglected legal phenomenon illuminates some central features of the criminal law and the criminal process, and some of the preconditions for the legitimacy of the criminal law in a liberal republic. (shrink)

Nozick analyzes fundamental issues, such as the identity of the self, knowledge and skepticism, free will, the foundations of ethics, and the meaning of life.

The illusory appeal of double effect -- The significance of intent -- Means and ends -- Blame.

The Metaphysics of Morals is Kant's major work in applied moral philosophy in which he deals with the basic principles of rights and of virtues. It comprises two parts: the 'Doctrine of Right', which deals with the rights which people have or can acquire, and the 'Doctrine of Virtue', which deals with the virtues they ought to acquire. Mary Gregor's translation, revised for publication in the Cambridge Texts in the History of Philosophy series, is the only complete translation of the (...) whole text, and includes extensive annotation on Kant's difficult and sometimes unfamiliar vocabulary. A new introduction by Roger Sullivan sets the work in its historical and philosophical context. This volume will be of wide interest to students of ethics and of legal and political philosophy. (shrink)

Several writers have argued that the state lacks the moral standing to hold socially deprived offenders responsible for their crimes because the state would be hypocritical in doing so. Yet the state is not disposed to make an unfair exception of itself for committing the same sorts of crimes as socially deprived offenders, so it is unclear that the state is truly hypocritical. Nevertheless, the state is disposed to inconsistently hold its citizens responsible, blaming or punishing socially deprived offenders more (...) often or more harshly than other offenders, even when the crimes are the same. The state’s stable disposition to inconsistently hold offenders responsible undermines its standing to hold offenders responsible for the same reasons that hypocrisy undermines standing; instead of making an unfair exception of itself, the state makes an unfair exception of others. Strikingly, this means that the state lacks the standing to hold anyone responsible for a crime for which it is unfairly disposed to hold citizens responsible inconsistently, not just socially deprived offenders. Thus, it is even more urgent that the state regain its moral standing by working toward a justice system that holds offenders responsible consistently. (shrink)

Apologies can be profoundly meaningful, yet many gestures of contrition - especially those in legal contexts - appear hollow and even deceptive. Discussing numerous examples from ancient and recent history, I Was Wrong argues that we suffer from considerable confusion about the moral meanings and social functions of these complex interactions. Rather than asking whether a speech act 'is or is not' an apology, Smith offers a highly nuanced theory of apologetic meaning. Smith leads us though a series of rich (...) philosophical and interdisciplinary questions, explaining how apologies have evolved from a confluence of diverse cultural and religious practices that do not translate easily into secular discourse or gender stereotypes. After classifying several varieties of apologies between individuals, Smith turns to apologies from collectives. Although apologies from corporations, governments, and other groups can be quite meaningful in certain respects, we should be suspicious of those that supplant apologies from individual wrongdoers. (shrink)

Christopher Bennett presents a theory of punishment grounded in the practice of apology, and in particular in reactions such as feeling sorry and making amends. He argues that offenders have a 'right to be punished' - that it is part of taking an offender seriously as a member of a normatively demanding relationship that she is subject to retributive attitudes when she violates the demands of that relationship. However, while he claims that punishment and the retributive attitudes are the necessary (...) expression of moral condemnation, his account of these reactions has more in common with restorative justice than traditional retributivism. He argues that the most appropriate way to react to crime is to require the offender to make proportionate amends. His book is a rich and intriguing contribution to the debate over punishment and restorative justice. (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)

This book offers a critical examination of those theories and advances a new argument for punishment's justification, calling it the 'duty view'.