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)

How may a society, in a morally defensible way, confront a past of injustice and suffering, and seek to break the spell of violence and disregard for human life? I begin by demonstrating the relevance of this question to the South African Truth and Reconciliation Commission, and I draw attention to André du Toit's long- standing interest in ways in which truth commissions may function to consolidate political change. In the second section of the article, I argue that truth commissions (...) should be regarded as a defensible moral compromise between the values of justice and social unity, and I criticize claims that truth commissions promote transitional justice, when that is understood as a distinctive conception of justice that emerges in circum stances of regime transition. In the third section, I criticize the claim that truth commissions are not a moral compromise at all but embody a superior, restorative conception of justice. I conclude by showing why retribution is required by criminal justice, and why truth commissions must be seen, not as an end in themselves, but as institutions whose function is to emphasize the importance of the rule of law, normal criminal justice, and legal recognition. (shrink)

On the basis of a communicative theory of criminal punishment, I show how mercy has a significant but limited role to play in the criminal law—in particular (although not only) in criminal sentencing. Mercy involves an intrusion into the realm of criminal law of values and concerns that are not themselves part of the perspective of criminal law: a merciful sentencer acts beyond the limits of her legal role, on the basis of moral considerations that conflict with the demands of (...) penal justice. Sometimes, however (but in a decent system of law in a decent society, rarely), that is how citizens should act. Finally, I discuss, and criticise, two attempts to find a place for mercy within a communicative conception of punishment, and argue that repentance is not an appropriate ground for leniency or mercy in sentencing. (shrink)

Against the view of some contemporary Kantians who wish to downplay Kant's retributivist commitments, I argue that Kant's theory of practical of reason implies a retributive conception of punishment. I trace this view to Kant's distinction between morality and well-being and his attempt to synthesize these two concerns in the idea of the highest good. Well-being is morally valuable only insofar as it is proportional to virtue, and the suffering inflicted on wrongdoers as punishment for wrongdoing is morally good so (...) long as it is proportional to the wrongdoing. According to Kantian retributivism, punishment is warranted as a means to promote proportionality between well-being and virtue. (shrink)