Although the view that punishment is to be justified on utilitarian grounds has obvious appeal, an examination of utilitarianism reveals that, consistently and accurately interpreted, it dictates unjust punishments which are unacceptable to the common moral consciousness. In this rule?utilitarianism is no more satisfactory than is act?utilitarianism. Although the production of the greatest good, or the greatest happiness, of the greatest number is obviously a relevant consideration when determining which punishments may properly be inflicted, the question as to which punishment (...) is just is a distinct and more basic question and one which must be answered before we can determine which punishments are morally permissible. That a retributivist theory, which is a particular application of a general principle of justice, can account more satisfactorily for our notion of justice in punishment is a positive reason in its support. (shrink)

In this book, T. M. Scanlon offers new answers to these questions, as they apply to the central part of morality that concerns what we owe to each other.

Retributivism—the idea that wrongdoers should be “paid back” for their wicked deeds—fits naturally with many people’s feelings. They find it deeply satisfying when murderers and rapists “get what they have coming,” and they are infuriated when villains “get away with it.” But others dismiss these feelings as primitive and unenlightened. Sometimes the complaint takes a religious form. The desire for revenge, it is said, should be resisted by those who believe in Christian charity. After all, Jesus himself rejected the rule (...) of “an eye for an eye,”2 and St. Paul underscored the point, saying that we should not “return evil for evil” but we should “overcome evil with good.”3 To those who adopt this way of thinking, whether on secular or religious grounds, vengeance cannot be an acceptable motive for action. This objection is, for the most part, misguided. The idea that wrongdoers should be “paid back” for their wickedness is not merely a demand for primitive vengeance. It is.. (shrink)

Previous edition, 1st, published in 1971.

This first volume in the four-volume series The Moral Limits of the Criminal Law focuses on the "harm principle," the commonsense view that prevention of harm to persons other than the perpetrator is a legitimate purpose of criminal legislation. Feinberg presents a detailed analysis of the concept and definition of harm and applies it to a host of practical and theoretical issues, showing how the harm principle must be interpreted if it is to be a plausible guide to the lawmaker.

There is no large number of very small bads that is worse than a small number of very large bads – or so, some maintain, it seems plausible to say. In this article, I criticize and reject two recently proposed vindications of the above intuition put forth by Dale Dorsey and Alex Voorhoeve. Dorsey advocates for a threshold marked by the interference with a person's global life projects: any bad that interferes with the satisfaction of a life project is worse (...) than any number of bads that don't interfere with such a life project. Such thresholds, I argue, are broadly implausible. Voorhoeve gives a contractualist account for the irrelevance of minor bads. His account, I argue, does not, among other things, provide the right kind of reason in defence of the above intuition. (shrink)

The traditional distinction between retributive and distributive justice misconstrues the place of the criminal law in modern regulatory states. In the context of the regulatory state, the criminal law is a coercive rule-enforcing institution – regardless of whether it also serves the ends of retributive justice. As a rule-enforcing institution, the criminal law is deeply implicated in stabilizing the institutions and legal rules by means of which a state creates and allocates social advantage. As a coercive institution, the criminal law (...) requires justification as an instance of legitimate state authority. The operation of criminal justice institutions should therefore not be evaluated by reference to a distinct set of criteria, but should be evaluated by the same criteria that apply to coercive public institutions generally. (shrink)

After distinguishing different species of Legal Moralism I outline and defend a modest, positive Legal Moralism, according to which we have good reason to criminalize some type of conduct if it constitutes a public wrong. Some of the central elements of the argument will be: the need to remember that the criminal law is a political, not a moral practice, and therefore that in asking what kinds of conduct we have good reason to criminalize, we must begin not with the (...) entire realm of wrongdoing, but with conduct falling within the public realm of our civic life; the need to look at the different processes of criminalization, and to ask what kinds of consideration can properly figure in those processes; the need to attend to the relationship, and the essential differences, between criminal law and other modes of legal regulation. (shrink)

We are often faced with choices that involve the weighing of people's lives against each other, or the weighing of lives against other good things. These are choices both for individuals and for societies. A person who is terminally ill may have to choose between palliative care and more aggressive treatment, which will give her a longer life but at some cost in suffering. We have to choose between the convenience to ourselves of road and air travel, and the lives (...) of the future people who will be killed by the global warming we cause, through violent weather, tropical disease, and heat waves. We also make choices that affect how many lives there will be in the future: as individuals we choose how many children to have, and societies choose tax policies that influence people's choices about having children. These are all problems of weighing lives. How should we weigh lives? Weighing Lives develops a theoretical basis for answering this practical question. It extends the work and methods of Broome's earlier book Weighing Goods to cover the questions of life and death. Difficult problems come up in the process. In particular, Weighing Lives tackles the well-recognized, awkward problems of the ethics of population. It carefully examines the common intuition that adding people to the population is ethically neutral - neither a good nor a bad thing - but eventually concludes this intuition cannot be fitted into a coherent theory of value. In the course of its argument, Weighing Lives examines many of the issues of contemporary moral theory: the nature of consequentialism and teleology; the transitivity, continuity, and vagueness of betterness; the quantitative conception of wellbeing; the notion of a life worth living; the badness of death; and others. This is a work of philosophy, but one of its distinctive features is that it adopts some of the precise methods of economic theory (without introducing complex mathematics). Not only philosophers, but also economists and political theorists concerned with the practical question of valuing life, should find the book's conclusions highly significant to their work. (shrink)

We review the state of the art in moral psychology to answer 6 questions: 1) Where do moral beliefs and motivations come from? 2) How does moral judgment work? 3) What is the evidence for the social intuitionist model? 4) What exactly are the moral intuitions? 5) How does morality develop? And 6) Why do people vary in their morality? We describe the intuitionist approach to moral psychology. The mind makes rapid affective evaluations of everything it encounters, and these evaluations (...) (intuitions) shape and push subsequent moral reasoning. This approach to moral judgment has a variety of implications for moral philosophy and for the law in that it questions common assumptions about the reliability and causal efficacy of private, conscious reasoning. (shrink)

The Criminalization series arose from an interdisciplinary investigation into criminalization, focussing on the principles that might guide decisions about what kinds of conduct should be criminalized, and the forms that criminalization should take. Developing a normative theory of criminalization, the series tackles the key questions at the heart of the issue: what principles and goals should guide legislators in deciding what to criminalize? How should criminal wrongs be classified and differentiated? How should law enforcement officials apply the law's specifications of (...) offences? The sixth volume in the series offers a philosophical investigation of the relationship between moral wrongdoing and criminalization. Considering the justification of punishment, the nature of harm, the importance of autonomy, inchoate wrongdoing, the role of consent, and the role of the state, the book provides an account of the nature of moral wrongdoing, the sources of wrongdoing, why wrongdoing is the central target of the criminal law, and the ways in which criminalization of non-wrongful conduct might be permissible. (shrink)

Philosophical theorizing is often, either tacitly or explicitly, guided by intuitions about cases. Theories that accord with our intuitions are generally considered to be prima facie better than those that do not. However, recent empirical work has suggested that philosophically significant intuitions are variable and unstable in a number of ways. This variability of intuitions has led naturalistically inclined philosophers to disparage the practice of relying on intuitions for doing philosophy in general (e.g. Stich & Weinberg 2001) and for doing (...) moral philosophy in particular (Appiah 2008; Doris & Stich 2005; Horowitz 1998; Nadelhoffer & Feltz 2008; Sinnott Armstrong 2008). In this paper, we will draw on naturalistic considerations to offer some solace to philosophers who rely on intuitions. We wouldn’t call this a defense of intuitions, exactly, since we are sympathetic with much of the naturalists’ critique. But we want to introduce into the debate some neglected naturalistic reasons to be optimistic about intuitions, focusing especially on ethical intuitions. (shrink)

Introduction -- The nature and assessment of moral theories -- What is utilitarianism? -- Well-being -- Utilitarian aggregation -- A user-friendly guide to action? -- Is utilitarianism too demanding? -- Is utilitarianism too permissive? -- The way outcomes are brought about -- The place of rules in utilitarianism.

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 (individual or corporate) 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)

A standard view about criminal law distinguishes between two kinds of offenses, “mala in se” and “mala prohibita.” This view also corresponds to a distinction between two bases for criminalization: certain acts should be criminalized because they are moral wrongs; other acts may be criminalized for the sake of promoting overall welfare. This paper aims to show two things: first, that allowing for criminalization for the sake of promoting welfare renders the category of wrongfulness crimes largely redundant. Second, and more (...) importantly, accepting welfare as a legitimate ground for criminalization implies a certain view about legitimate state action, which makes criminalization for wrongfulness more difficult to justify. If I am right, the view that keeps the two categories of criminalization as largely separate is untenable. I conclude with some remarks about the advantages of welfare as the basis for criminalization. (shrink)

Originally published: Oxford: Clarendon, 1997.