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 want to discuss philosophically, to glance at the logic of, the parts of this expression “the justification of punishment” and then to draw from this discussion one or two morals for discussions of the justification of punishment. This paper is based on one originally given to the Scots Philosophy Club at its Aberdeen meeting in 1953, as the third part of a symposium on The Justification of Punishment.

I SHALL develop, in this article, certain distinctions suggested by recent contributions to the philosophical discussion of punishment, which help to clarify the issues involved. Having separated out what I consider the four central philosophical questions, I shall suggest an approach to them, which, while mainly utilitarian, takes due account, I believe, of the retributivist case where it is strongest, and meets the main retributivist objections.

Criminal law theorists overwhelmingly agree that for some conduct to constitute punishment, it must be imposed intentionally. Some retributivists have argued that because punishment consists only of intentional inflictions, theories of punishment can ignore the merely foreseen hardships of prison, such as the mental and emotional distress inmates experience. Though such distress is foreseen, it is not intended, and so it is technically not punishment. In this essay, I explain why theories of punishment must pay close attention to the unintentional (...) burdens of punishment. In two very important contexts — punishment measurement and justification — we use the term “punishment” to capture not only intentional harsh treatment but certain unintentional harsh treatment as well. This means that the widely accepted view that punishment is an intentional infliction requires substantial caveats. It also means that any purported justification of punishment that addresses only the intentional infliction of punishment is woefully incomplete. -/- [This paper has been published under a Creative Commons Attribution-NonCommercial-ShareAlike license.]. (shrink)

In this paper, I argue that scholars such as John Braithwaite and Lode Walgrave rely on fictions when presenting their utopian vision of restorative justice. Three claims in particular are shown to be fictitious. Proponents of restorative justice maintain, first, that the offender and the victim voluntarily attend the restorative conference. Second, that the restorative conference enables the offender and the victim to take on active responsibility. Third, that the reparatory tasks on which the parties agree should not be understood (...) in terms of the intentional infliction of harm. These fictions, so I argue, are not merely a mistake, but instead serve an important function: the various parties need to believe that they adequately capture the reality of the restorative conference as they are more likely to acquiesce if they believe the fictions to be true. I conclude that the fictions are the driving force within the restorative endeavour. (shrink)

The United States Supreme Court has repeatedly insisted that what distinguishes a criminal punishment from a civil penalty is the presence of a punitive legislative intent. Legislative intent has this role, in part, because court and commentators alike conceive of the criminal law as the body of law that administers punishment; and punishment, in turn, is conceived of in intention-sensitive terms. I argue that this understanding of the distinction between civil penalties and criminal punishments depends on a highly controversial proposition (...) in moral theory – namely, that an agent’s intentions bear directly on what it is permissible for that agent to do, a view most closely associated with the doctrine of double effect. Therefore, legal theorists who are skeptical of granting intention this kind of significance owe us an alternative account of the distinctiveness of the criminal law. I sketch the broad outlines of just such an alternative account – one that focuses on the objective impact of legislation on a class of protected interests, regardless of the state’s motivations in enacting the legislation. In other words, even if the concept of punishment is unavoidably intention-sensitive, it does not follow that the boundaries of the criminal law are likewise intention-sensitive, because the boundaries of the criminal law may be drawn without reference to the concept of punishment. I conclude by illustrating the application of this view to a pair of well-known cases, and noting some of its ramifications. (shrink)