The purpose of this paper is to provide a justification of punishment which can be endorsed by free will skeptics, and which can also be defended against the "using persons as mere means" objection. Free will skeptics must reject retributivism, that is, the view that punishment is just because criminals deserve to suffer based on their actions. Retributivists often claim that theirs is the only justification on which punishment is constrained by desert, and suppose that non-retributive justifications must therefore endorse (...) treating the people punished as mere means to social ends. Retributivists typically presuppose a monolithic conception of desert: they assume that action-based desert is the only kind of desert. But there are also personhood-based desert claims, that is, desert claims which depend not on facts about our actions, but instead on the more abstract fact that we are persons. Since personhood-based desert claims do not depend on facts about our actions, they do not depend on moral responsibility, so free will skeptics can appeal to them just as well as retributivists. What people deserve based on the mere fact of their personhood is to be treated as they would rationally consent to be treated if all they had in view was the mere fact of their personhood. We can work out the implications of this view for punishment by developing a hypothetical consent justification in which we select principles of punishment in the Rawlsian original position, so long as we are careful not to smuggle in the retributivist assumption that it is under our control whether we end up as criminals or as law-abiding citizens once we raise the veil of ignorance. (shrink)

This work has been selected by scholars as being culturally important and is part of the knowledge base of civilization as we know it. This work is in the public domain in the United States of America, and possibly other nations. Within the United States, you may freely copy and distribute this work, as no entity has a copyright on the body of the work. Scholars believe, and we concur, that this work is important enough to be preserved, reproduced, and (...) made generally available to the public. To ensure a quality reading experience, this work has been proofread and republished using a format that seamlessly blends the original graphical elements with text in an easy-to-read typeface. We appreciate your support of the preservation process, and thank you for being an important part of keeping this knowledge alive and relevant. (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.

The author singles out various conceptions of rationality used in practical legal discourse: formal and substantive rationality, instrumental goal‐ and means‐rationality, communicative rationality. Practical rationality is expressed in decisions justified by epistemic and axiological premises according to the rules of justificatory reasoning. Five levels of analysis of this justification are identified. Rules, principles and evaluations are used as justifying arguments and their characteristics determine the dimensions of rationality of decision depending on the features of rules, various conceptions of principles, and (...) kinds of relativisation of evaluations. The dimensions of legal rationality depend mainly on three singled out conceptions of rationality, i.e., formal rationality dealing with the deep structure of justification, instrumentally oriented rationality as content of justifiability, and communicative rationality linked with the pragmatics of human interaction. Legitimacy, according to the presented analysis, appears as a subclass of external justification dealing with axiological premisses in terms of instrumental rationality and/or communicative rationality. (shrink)

The author offers a sketch of his thesis that legal principles are optimization commands. He presents this thesis as an effort to capture the structure of weighing or balancing and to provide a basis for the principle of proportionality as it is applied in constitutional law. With this much in place, he then takes up some of the problems that have come to be associated with the optimization thesis. First, he examines the objection that there are no such things as (...) principles, but only different modes of the application of norms. Second, he discusses problems concerning the concept of an optimization command and the character of the "ought" contained in principles. He concludes that the distinction between commands to optimize and commands to be optimized is the best method for capturing the nature of principles. (shrink)

Ross, Alf Loar, Brian, Editor.Directives and Norms. New York: Humanities Press, [1967]. ix, 188 pp. Reprint available April 2009 by The Lawbook Exchange, Ltd. ISBN-13: 978-1-58477-961-2. ISBN-10: 1-58477-961-6. Cloth with dust jacket. $65.00 * Reprint of the first American edition. One of the most interesting jurists of the post-World War II era, Ross [1899-1979] was a legal and moral philosopher, scholar of international law and the leading representative of Scandinavian Legal Realism. This book and On Law and Justice (1958) are (...) his principal works. In Directives and Norms Ross asks whether imperatives (or, to use his term, 'directives') are subject to logic in the same way as indicatives. He shows the difference between indicative and directive discourse and explains the concepts 'directive' and 'norm' as they function in the social sciences, especially in the study of law. A contemporary essay in the Modern Law Review (32:544), though critical of this work, was still impressed by its "clear and convincing account" of these processes. (shrink)

This new edition of Will Kymlicka's best selling critical introduction to contemporary political theory has been fully revised to include many of the most significant developments in Anglo-American political philosophy in the last eleven years, particularly the new debates over issues of democratic citizenship and cultural pluralism. The book now includes two new chapters on citizenship theory and multiculturalism, in addition to updated chapters on utilitarianism, liberal egalitarianism, libertarianism, socialism, communitarianism, and feminism. The many thinkers discussed include G. A. Cohen, (...) Ronald Dworkin, William Galston, Carol Gilligan, R. M. Hare, Chandran Kukathas, Catherine Mackinnon, David Miller, Philippe Van Parijs, Susan Okin, Robert Nozick, John Rawls, John Roemer, Michael Sandel, Charles Taylor, Michael Walzer, and Iris Young. Extended guides to further reading have been added at the end of each chapter, listing the most important books and articles on each school of thought, as well as relevant journals and websites. Covering some of the most advanced contemporary thinking, Will Kymlicka writes in an engaging, accessible, and non-technical way to ensure that the book is suitable for students approaching these difficult concepts for the first time. This second edition promises to build on the original edition's success as a key text in the teaching of modern political theory. (shrink)

Retributive accounts of the justification of criminal punishment are increasingly fashionable, yet their proponents frequently rely more on suggestive metaphor than on reasoned explanation. This article seeks to question whether any such coherent explanations are possible. I briefly sketch some general doubts about the validity of retributivist views and then critique three recent efforts (by George Sher, Jean Hampton, and Michael Moore) to put retributivism on a sound basis.

The doyen of living English philosophers, by these reflections, took hold of and changed the outlook of a good many other philosophers, if not quite enough. He did so, essentially, by assuming that talk of freedom and responsibility is talk not of facts or truths, in a certain sense, but of our attitudes. His more explicit concern was to look again at the question of whether determinism and freedom are consistent with one another -- by shifting attention to certain personal (...) rather than moral attitudes, first of all gratitude and resentment. In the end, he arrived at a kind of Compatibilist or, as he says, Optimist conclusion. That is no doubt a recommendation but not the largest recommendation of this splendidly rich piece of philosophy. (shrink)

Aulis Aarnio addresses the question of how legal interpretations should be justified. Aarnio considers a justification to be rational only if the justification process has been conducted in a rational way, and if the final result of this process is acceptable to the legal community. According to Aarnio, a theory concerning the justification of legal interpretations should contain a procedural component specifying the conditions of rationality for legal discussions, and a substantial component specifying the material conditions of acceptability for the (...) final result. The procedural component of Aarnio’s theory formulates rules for the rationality of legal discussions. The substantial component specifies when the result of a legal interpretation can be called acceptable. Aarnio considers such a result acceptable if it is acceptable to a particular legal community in which there is consensus with respect to certain norms and values. (shrink)

This book examines responsibility and luck as these issues arise in tort law, criminal law, and distributive justice. The central question is: whose bad luck is a particular piece of misfortune? Arthur Ripstein argues that there is a general set of principles to be found that clarifies responsibility in those cases where luck is most obviously an issue: accidents, mistakes, emergencies, and failed attempts at crime. In revealing how the problems that arise in tort and criminal law as well as (...) distributive justice invite structurally parallel solutions, the author also shows the deep connection between individual responsibility and social equality. This is a challenging and provocative book that will be of special interest to moral and political philosophers, legal theorists, and political scientists. (shrink)

This essay challenges the widely accepted principle that a person is morally responsible for what he has done only if he could have done otherwise. The author considers situations in which there are sufficient conditions for a certain choice or action to be performed by someone, So that it is impossible for the person to choose or to do otherwise, But in which these conditions do not in any way bring it about that the person chooses or acts as he (...) does. In such situations the person may well be morally responsible for what he chooses or does despite his inability to choose or to do otherwise. Finally the author considers certain suggestions for revising the principle he rejects or for replacing it with a principle of an altogether different kind. (shrink)

Most people assume that, even though some degenerative or criminal behavior may be caused by influences beyond our control, ordinary human actions are not similarly generated, but rather are freely chosen, and we can be praiseworthy or blameworthy for them. A less popular and more radical claim is that factors beyond our control produce all of the actions we perform. It is this hard determinist stance that Derk Pereboom articulates in Living Without Free Will. Pereboom argues that our best scientific (...) theories have the consequence that factors beyond our control produce all of the actions we perform, and that because of this, we are not morally responsible for any of them. He seeks to defend the view that morality, meaning and value remain intact even if we are not morally responsible, and furthermore, that adopting this perspective would provide significant benefit for our lives. (shrink)

Establishes the intellectual foundations of a new movement in American thought: communitarianism. Emerging in part as a response to the excesses of American individualism, communitarianism seeks to restore the balance between individual rights and social responsibilities.

He concludes with an assessment of democracy's strengths and limitations as the font of political legitimacy. The book offers a lucid and accessible introduction to urgent ongoing conversations about the sources of political allegiance.

Responsibility is a key concept in our moral, social, and political thinking, but it is not itself properly understood. J.R. Lucas here presents a lively, broad, and accessible discussion of responsibility in various areas of human life, from personal and sexual relations to politics.

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)

Reprint of the first American edition. One of the most interesting jurists of the post-World War II era, Ross [1899-1979] was a legal and moral philosopher, scholar of international law and the leading representative of Scandinavian Legal Realism. This book and On Law and Justice (1958) are his principal works. In Directives and Norms Ross asks whether imperatives (or, to use his term, 'directives') are subject to logic in the same way as indicatives. He shows the difference between indicative and (...) directive discourse and explains the concepts 'directive' and 'norm' as they function in the social sciences, especially in the study of law. A contemporary essay in the Modern Law Review (32:544), though critical of this work, was still impressed by its "clear and convincing account" of these processes. (shrink)

In this paper, I provide an extensive examination of the political theory of Thomas Hobbes in order to discuss its relevance to an understanding of contemporary issues and challenges faced by criminal law and criminal justice theory. I start by proposing that a critical analysis of Hobbes’s account of punishment reveals a paradox that not only is fundamental to understanding his model of political society, but also can offer important insights into the preventive turn experienced by advanced liberal legal systems. (...) I then suggest that the main importance of an analysis of Hobbes’s theoretical framework lies in how it reveals an inextricable and problematic link between individual autonomy and political authority in the normative conception of the modern liberal state, grounded on the notion of insecurity. By exploring how legal scholars have recently engaged with aspects of this problematic in criminal law and punishment posed by Hobbes’s work, I argue that the paradox found in punishment is such that it both legitimates the criminal law and undermines its normative aspirations, particularly the possibility of securing individual liberty against the power of the liberal state. (shrink)

Unlike other treatments of legal punishment, this book takes both an external approach, asking why we punish at all, and an internal approach, considering issues faced by those 'inside' the practice: For what actions should we punish? Should we allow plea-bargaining? the insanity defense? How should sentencing be determined? The two approaches are connected: To decide whether to punish someone who is 'insane', or who cops a plea, we need to ask whether doing so is consistent with our theory of (...) why we punish at all. In connecting theory and practice, I draw on a broad range of thought: radical criticisms of punishment (Nietzsche, Foucault, Marxists), sociological theories (Durkheim, Girard), various philosophical traditions (utilitarian, German Idealism, modern liberalism), and the 'law and economics' movement. Against radical critics who argue we shouldn't punish at all, but who then leave us without an alternative for dealing with crime, I defend the practice, offering a version of retribution (which I distinguish from revenge and non-consequential theories) that holds we punish not to deter, reform, or otherwise augment social utility, but to mete out just deserts, vindicate right, and express society's condemnation of actions it deems blameworthy. I argue that this theory best accounts for how we do punish, and then use this theory to provide immanent criticism of certain features of our actual practice that don't accord with the retributive principle. (shrink)

It is thus opposed to all axiological, or value-grounded, theories, which make goodness - with its opposite, badness - the single fundamental ethical ...

Pre-eminent among European political philosophers, Norberto Bobbio has throughout his career turned to the political theory of Thomas Hobbes. Gathered here for the first time are the most important of his essays which together provide both a valuable introduction to Hobbes's thought and a fresh understanding of Hobbes's place in the theory of modern politics. Tracing Hobbes's work through De Cive and Leviathan , Bobbio identifies the philosopher's relation to the tradition of natural law. That Hobbes must now be understood (...) in both this tradition as well as in the seemingly contradictory positivist tradition becomes clear for the first time in Bobbio's account. Bobbio also demonstrates that Hobbes cannot be easily labelled "liberal" or "totalitarian" in Bobbio's provocative analysis of Hobbes's justification of the state, Hobbes emerges as a true conservative. Though his primary concern is to reconstruct the inner logic of Hobbes's thought, Bobbio is also attentive to the philosopher's biography and weaves into his analysis details of Hobbes's life and world--his exile in France, his relation with the Mersenne circle, his disputes with Anglican bishops, and accusations of heresy leveled against him. The result is a revealing, thoroughly new portrait of the first theorist of the modern state. (shrink)

A number of philosophers and legal scholars have pointed out a fact about punishment that had not been sufficiently appreciated by many traditional accounts, utilitarian, retributive, or ‘mixed’: that evil inflicted on the person punished is not an evil simpliciter , but rather the expression of an important social message—that punishment is a kind of language. The message which it is seen to communicate can broadly be described as condemnation by society of the crime committed. In what is still the (...) only attempt at a general and critical discussion— Anthony Skillen's ‘How to say Things with Walls’—this way of understanding punishment is termed ‘expressionism’. In this paper I propose to sort out the main varieties of expressionism in the philosophy of punishment, and to discuss some of their pros and cons. (shrink)

This essay differentiates two approaches to understanding the concept of coercion, and argues for the relative merits of the one currently out of fashion. The approach currently dominant in the philosophical literature treats threats as essential to coercion, and understands coercion in terms of the way threats alter the costs and benefits of an agent’s actions; I call this the “pressure” approach. It has largely superseded the “enforcement approach,” which focuses on the powers and actions of the coercer rather than (...) the perspective of the coercee. The enforcement approach identifies coercion with certain uses of the kinds of powers that agents need to accumulate and wield in order to be able to make significant, credible threats. Though there is considerable overlap extensionally in the instances of coercion recognized by the two approaches, the enforcement approach encompasses some uses of power to coerce that do not involve threats . It also circumscribes which threats should be counted as coercive, though notably it provides a picture of coercion that is non-moralized in its essentials. While there may be specific purposes for which a pressure account is to be preferred, I argue that the enforcement approach better describes how coercion works, and elucidates factors that are often tacitly assumed by pressure accounts. It also is more useful for explaining the social and political significance of coercion, and why coercion is thought to have the implications commonly associated with it. In particular, I argue that it helps us understand why uses of coercion are in general a matter of ethical significance, why state authority depends on commanding a monopoly on the right to use coercion, and why being coerced may reasonably provide one a defense against being held responsible for actions one is coerced into taking. (shrink)

What is a fair distribution of resources and other goods when individuals are partly responsible for their achievements? This book develops a theory of fairness incorporating a concern for personal responsibility, opportunities and freedom. With a critical perspective, it makes accessible the recent developments in economics and philosophy that define social justice in terms of equal opportunities. It also proposes new perspectives and original ideas. The book separates mathematical sections from the rest of the text, so that the main concepts (...) and ideas are easily accessible to non-technical readers. -/- It is often thought that responsibility is a complex notion, but this monograph proposes a simple analytical framework that makes it possible to disentangle the different concepts of fairness that deal with neutralizing inequalities for which the individuals are not held responsible, rewarding their effort, respecting their choices, or staying neutral with respect to their responsibility sphere. It dwells on paradoxes and impossibilities only as a way to highlight important ethical options and always proposes solutions and reasonable compromises among the conflicting values surrounding equality and responsibility. -/- The theory is able to incorporate disincentive problems and is illustrated in the examination of applied policy issues such as: income redistribution when individuals may be held responsible for their choices of labor supply or education; social and private insurance when individuals may be held responsible for their risky lifestyle; second chance policies; the measurement of inequality of opportunities and social mobility. (shrink)