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)

The second volume in Joel Feinberg's series The Moral Limits of the Criminal Law, Offense to Others focuses on the "offense principle," which maintains that preventing shock, disgust, or revulsion is always a morally relevant reason for legal prohibitions. Feinberg clarifies the concept of an "offended mental state" and further contrasts the concept of offense with harm. He also considers the law of nuisance as a model for statutes creating "morals offenses," showing its inadequacy as a model for understanding "profound (...) offenses," and discusses such issues as obscene words and social policy, pornography and the Constitution, and the differences between minor and profound offenses. (shrink)

I start from the presupposition that the use of force against another is justified only in self-defence or in defence of others against aggression. If so, the main work of justifying punishment must rely on its deterrent effect, since most punishments have no other significant self-defensive effect. It has often been objected to the deterrent justification of punishment that it commits us to using offenders unacceptably, and that it is unable to deliver acceptable limits on punishment. I describe a sort (...) of deterrent theory which can avoid both of these objections. (shrink)

As recorded in the Analects, Kongzi (Confucius) held that using punishment to influence ordinary citizens will do little to develop a sense of shame (chi 恥) in them. This term is usually taken to refer to a sense of shame described here as “ autonomous,” understood as a predisposition to feel ashamed when one does something wrong because it seems wrong to oneself, and not because others regard it as wrong or shameful. Historically, Confucian philosophers have thought a great deal (...) about the habits and character traits necessary for someone to have a sense of shame that is truly autonomous. The article looks at their views on this matter and shows how they help to articulate the hypothesis that coercive punishments undermine or work at cross-purposes with the cultivation of an autonomous sense of shame. It then uses this analysis to explicate the proposal that governing people by cultivating a sense of shame is to be preferred to governing by threat of punishment. It concludes by weighing its merits as a view about effective governance, observing that its strength and plausibility depends on whether we take the threat of punishment to be direct or indirect. (shrink)

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)

If the ground of punishment is a culpable wronging, what is it about a culpable wrongdoing that allows it to morally justify deserved punishment? In particular, we want to know what it is about a culpable wrongdoing that accounts for the intrinsic value of punitive desert or the punitive-desert-related duties that comprise retributivism. I analyze both together in the context of seeking a justification for The Principle of Deserved Punishment, (1). (1) The Principle of Deserved Punishment. A person deserves punishment (...) because, and only because, she has performed a culpable wrongdoing. One approach is that more general moral principles justify it. On this approach, these moral principles support the claim that deserved punishment is morally justified and the claim that it is justified on the ground of a culpable wrongdoing. In this article, I argue against this approach. Elsewhere I argue for the truth of retributivism (which focuses on deserved punishment) based on its being the best explanation of our considered moral judgments. This latter account allows punitive desert and retributivism to function as more fundamental normative entities than is suggested by theories that attempt to derive it from other moral principles. (shrink)

The article claims that a person who deserves punishment deserves it because, and only because, she has performed a culpable wrongdoing . The article thus rejects the theory that the basis of deserved punishment is a bad moral character. The argument rejecting The Character Theory of Deserved Punishment is divided into two parts:1) that it is not necessarily the case that an intentional act reflects the agent's moral character, and2) that it is not necessarily the case that a culpable wrongdoing (...) reflects the agent's moral character. The article then proceeds to isolate instances of culpable wrongdoing and of bad moral character to see which of these factors accompanies the considered moral judgment that the agent deserves punishment. It concludes that our intuitions suggest deserved punishment and the amount of punishment someone deserves, correlate with culpable wrongdoing rather than with a person's bad moral character. Der Beitrag geht davon aus, daß eine Person dann und nur dann Strafe verdient, wenn sie eine rechtswidrige Tat schuldhaft begangen hat. Er wendet sich damit gegen die Auffassung, Basis für eine verdiente Strafe sei der schlechte Charakter der bestraften Person. Das Argument, das die letztere Lehre verwirft, zerfällt in zwei Teile. 1) Es ist nicht notwendigerweise so, daß eine Vorsatztat den schlechten Charakter des Handelnden, und 2) es ist nicht notwendigerweise so, daß schuldhaft begangenes Unrecht überhaupt den Charakter des Handelnden widerspiegelt. Anschließend untersucht der Beitrag Beispiele schuldhaftes Unrechttuns und Beispiele schlechten moralischen Charakters, um festzustellen, welcher dieser Faktoren das moralische Urteil, daß der Handelnde Strafe verdient, begleitet. Er kommt zu dem Ergebnis, daß unsere Intuitionen den Gedanken, jemand verdiene Strafe, und die Höhe der Strafe, die der Betreffende verdient, mit der Annahme einer schuldhaft begangenen rechtswidrigen Tat korrelieren und nicht mit der Annahme der Betreffende habe einen schlechten Charakter. (shrink)