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)

Retribution is often dismissed as augmenting the initial harm done, rather than ameliorating it. This criticism rests on a crude view of retribution. In our actual practice in informal situations and in the workings of the reactive (properly called 'retributive') sentiments, retribution is true to the gravity of wrongdoing, but does aim to ameliorate it. Through wrongdoing, offenders become alienated from the moral community: their actions place their commitment to its core values in doubt. We recognize this status in blaming, (...) a withdrawal of civility and solidarity which symbolizes the moral distance wrongdoers have put between them and us. Atonement is the means by which they make themselves 'at one' again with the community. Retribution is properly understood as a cycle which recognizes disruption and alienation, but aims at reconciliation. (shrink)

Some philosophers think that forgiveness should only be granted in response to the wrongdoer’s repentance, while others think that forgiveness can properly be given unconditionally. In this paper I show that both of these positions are partially correct. In redemptive forgiveness we wipe the wrong from the offender’s moral record. It is wrong to forgive redemptively in the absence of some atonement. Personal forgiveness, on the other hand, is granted when the victim overcomes inappropriate though humanly understandable feelings of hate (...) or vindictive anger towards the wrongdoer and comes to see them as deserving of a certain unconditional respect ’qua’ moral agent. Personal forgiveness is unconditionally admirable. (shrink)

Part I The Imperative Mood 'Virtue, then, is a disposition governing our choices '. ARISTOTLE, Eth. Nic. 36 Prescriptive Language. ...

In philosophical writings, the practice of punishment standardly features as a terrain over which comprehensive moral theories—in the main, versions of ‘consequentialism’ and ‘deontology’—have fought a prolonged and inconclusive battle. The grip of this top-down model of the relationship between philosophical theory and punitive practice is so tenacious that even the most seemingly innocent concern with the ‘consequences’ of punishment is often read, if not as an endorsement of consequentialism, then at least as the registering of a consequentialist point. But (...) to suppose that repentance or crime prevention, for example, are goods that punishment characteristically aims to secure is hardly to endorse the maximization of some value or set of values as the fundamental criterion of moral rightness. Equally, an appeal to desert or rights in the justification of punishment does not commit one to the deontological claim that these norms have a basis independent of human interests. This suggests that the prevalence of the top-down model may owe more to the inertia of established usage, or the temptations of over-intellectualization, than one might initially have supposed. (shrink)

Social psychologists have evidence that evaluative feedback on others’ choices sometimes has unwelcome negative effects on hearers’ motivation. Holroyd’s article (Holroyd J. Ethical Theory Moral Pract 10:267–278, 2007) draws attention to one such result, the undermining effect, that should help to challenge moral philosophers’ complacency about blame and praise. The cause for concern is actually greater than she indicates, both because there are multiple kinds of negative effect on hearer motivation, and because these are not, as she hopes, reliably counteracted (...) by implicit features of praise and blame. The communicative ideal that she articulates does point us in the right direction, but it requires further elaboration. Once it is spelled out, we find that realizing this ideal, in light of the empirical research, requires rethinking the role of verdict-like judgments within moral feedback. (shrink)

Many philosophers and laypeople have the following two intuitions about legal punishment: the state has a pro tanto moral reason to punish all those guilty of breaking a just law and to do so in proportion to their guilt. Accepting that there can be overriding considerations not to punish all the guilty in proportion to their guilt, many philosophers still consider it a strike against any theory if it does not imply that there is always a supportive moral reason to (...) do so. In this paper, I demonstrate that censure theory accounts for these intuitions much better than any other theory, including forms of retributivism such as desert theory and fairness theory, and explain why censure theory is able to do so. (shrink)

Despite contemporary moral philosophers' renewed attention to the moral significance of emotions, the attitudinal repertoire with which they equip the mature moral agent remains stunted. One attitude moral philosophers neglect (if not disown) is contempt. While acknowledging the nastiness of contempt, I here correct the neglect by providing an account of the moral psychology of contempt. In the process, I defend the moral propriety of certain tokens of properly person-focused contempt against some prominent objections -- among them, objections stemming from (...) Kantian worries that contempt is incompatible with the respect we owe to persons as such. (shrink)

I argue that our acts of moral appraisal should be communicative. Praise and blame should communicate, to the appraised, information about their status and competences as moral agents; that they are recognised by the appraiser as a competent moral agent, and thus a legitimate candidate for appraisal. I argue for this thesis by drawing on empirical data about factors that can affect motivation. On the basis of such data, I formulate a constraint, and argue that two prominent models of moral (...) appraisal – a consequentialist model and Wallace’s ‘evaluative response’ model – violate this constraint. The model that I propose – the communicative conception of appraisal – does not violate this constraint. This conception, I argue, can provide a fuller picture of the role of appraisals in deepening agents’ commitment to moral norms. On this model, praise and blame has not only an evaluative component, but also communicates to the agent competence affirming information. (shrink)

I criticize an increasingly popular set of arguments for the justifiability of punishment. Some philosophers try to justify punishment by appealing to what Peter Strawson calls the reactive attitudes – emotions like resentment, indignation, remorse and guilt. These arguments fail. The view that these emotions commit us to punishment rests on unsophisticated views of punishment and of these emotions and their associated behaviors. I offer more sophisticated accounts of punishment, of these emotions and of their associated behaviors that are consistent (...) with Abolitionism, the view that punishment is unjustified. (shrink)

Some philosophers think that the challenge of justifying punishment can be met by a theory that emphasizes the expressive character of punishment. A particular type of theories of this sort - call it Expressive Retributivism [ER] - combines retributivist and expressivist considerations. These theories are retributivist since they justify punishment as an intrinsically appropriate response to wrongdoing, as something wrongdoers deserve, but the expressivist element in these theories seeks to correct for the traditional obscurity of retributivism. Retributivists often rely on (...) appeals to controversial intuitions involving obscure concepts. While retributive intuitions can be compelling, some worry that the justificatory challenge cannot be met merely by appealing to them. ER tries to enhance the clarity and justificatory power of these intuitions and the concepts they invoke by appealing to an expressive conception of punishment. I argue that these theories fail to justify punishment and that there is reason to think that they cannot, in principle, justify punishment. (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 result is nothing less than a fundamental reorientation of moral theory that enables it at last to account for morality's supreme authority--an account that ...

asks them would normally be taken to be committed to the belief that the phenomenon which is the subject of his inquiry is something publicly perceptible . ...