This review essay of Victor Tadros’s new book, “The Ends of Harm: The Moral Foundations of Criminal Law,” responds to Tadros’s energetic and sophisticated attacks on retributivist justifications for criminal punishment. I argue, in a nutshell, that those attacks fail. In defending retributivism, however, I also sketch original views on two questions that retributivism must address but that many or most retributivists have skated past. First, what do wrongdoers deserve – to suffer? to be punished? something else? Second, what does (...) it mean for them to deserve it? That is, what is the normative force or significance of valid desert claims, either with respect to retributivist desert in particular or with respect to all forms of desert? Because the answers that this essay offers are preliminary, the essay also serves as a partial blueprint for further work by criminal law theorists with retributivist sympathies. (shrink)

This paper develops a retributivist argument for leniency in punishment. It argues that even retributivists who defend desert-based punishment have a reason, internal to their view, to prefer more lenient over more severe punishments when there are doubts concerning how much punishment an offender deserves. This is because retributivists should take an asymmetrical view to underpunishment and overpunishment, and because the likelihood of overpunishment goes up with the severity of punishment. The radicalness of the ensuing leniency depends on the strength (...) of the asymmetry in value between underpunishment and overpunishment. (shrink)

“Teflon immorality’’ (or TI) is immorality that goes on unchecked—the wrongdoing is not stopped and its perpetrators, beyond the reach of punishment or other sanction, often persist in their immoral ways. The idea that the immoral prosper has been recognized as morally (and legally) disturbing presumably for as long as humanity has been reflective, and can be found already in the Bible. The reasons behind a great deal of successful immorality are important practically, but uninteresting philosophically. Sometimes, however, we face (...) events that are more interesting philosophically, and Teflon immorality results from oddities such as moral paradoxes and perversions. These, however, have remained largely unnoticed. I will outline a tentative survey of this topic. After showing its pervasiveness and importance, I will briefly reflect on its relevance to the way we should think about morality and about the means to further it, and confront possible objections. (shrink)

Do victims of moral wrongdoing have moral grounds to complain if they have freely committed a similar wrongdoing in the past? This question explores the connection between the moral standing of complainers and their previous deeds. According to Saul Smilansky two equally justifiable competing views create an antinomy with respect to the said question. In this article I present two arguments that attempt to undermine Smilansky's alleged paradox, presenting it as no more than a resolvable moral conflict. My first argument (...) attempts to resolve the conflict in cases where the complaining wrongdoers have already been sanctioned for their past transgression. My second argument challenges the validity of the alleged paradox, based on an alternative explanation of the seemingly paradoxical moral results. (shrink)

How can hard determinism deal with the need to punish, when coupled with the obligation to be just? I argue that even though hard determinists might find it morally permissible to incarcerate wrongdoers apart from lawful society, they are committed to the punishment’s taking a very different form from common practice in contemporary Western societies. Hard determinists are in fact committed to what I will call funishment, instead of punishment. But, by its nature funishment is a practical reductio of hard (...) determinism: it makes implementing hard determinism impossible to contemplate. Indeed, the social practices that hard determinism requires turn out to be morally bad even according to hard determinism itself. I conclude by briefly reflecting upon the implications. (shrink)

A theory of punishment should tell us not only when punishment is permissible but also when it is a duty. It is not clear whether McCloskey's retributivism is supposed to do this. His arguments against utilitarianism consist largely in examples of punishments unacceptable to the common moral consciousness but supposedly approved of by the consistent utilitarian. We remain unpersuaded to abandon our utilitarianism. The examples are often fanciful in character, a point which (pace McCloskey) does rob them of much of (...) their force. If there was no tension between utilitarian precepts and those which come naturally to plain men, utilitarianism could have no claim to provide a critique of moralities. The utilitarian's attitude to such tensions is somewhat complicated, but what is certain is that there is more room in his system for the sentiments to which McCloskey appeals against him than McCloskey realizes. We agree with McCloskey, however, on the absurdity of substituting rule?utilitarianism for act?utilitarianism as an answer to his attacks. The distinction itself may represent a conceptual confusion. In our view, indeed, unmodified act?utilitarianism provides the best moral basis for thought about punishment. (shrink)

I shall argue that compatibilism cannot resist in a principled way the temptation to prepunish people. Compatibilism thus emerges as a much more radical view than it is typically presented and perceived, and is seen to be at odds with fundamental moral intuitions.

It is commonly thought that morality applies universally to all human beings as moral targets, and our general moral obligations to people will not, as a rule, be affected by their views. I propose and explore a radical, alternative normative moral theory, ‘Designer Ethics’, according to which our views are pro tanto crucial determinants of how, morally, we ought to be treated. For example, since utilitarians are more sympathetic to the idea that human beings may be sacrificed for the greater (...) good, perhaps it is permissible to give them ‘priority’ as potential victims. This odd idea has manifold drawbacks but I claim that it also has substantial advantages, that it has some affinities to more commonly accepted moral positions, and that it should be given a significant role in our ethical thinking. (shrink)

Black magic (henceforth BM) is acting in an attempt to harm human beings through supernatural means. Examples include the employment of spells, the use of special curses, the burning of objects related to the purported victim, and the use of pins with voodoo dolls. For the sake of simplicity, we shall focus on attempts to kill through BM. The moral attitude towards BM has not been, as far as we know, significantly discussed in contemporary analytic philosophy. Yet the topic brings (...) up interesting questions and poses challenges, occasionally even reaching the level of paradoxes. Ideas of respecting persons, in particular, will be seen to be challenged by this form of magic. The notion of respecting persons will be treated here broadly and pluralistically. Indeed part of the interest in the discussion will be the unfolding of the diverse ways in which this term should be understood, and the contrasts between its various uses. Often, as we shall see, respect for persons and disrespect for them, in different senses, will co‐exist, and the dilemma will be one where avoiding some forms of disrespect will involve us in disrespect in other senses. (shrink)

Previous edition, 1st, published in 1971.

Smilansky notes that wrongdoers seem to lack any entitlement to complain about being treated in the ways that they have treated others. However, it also seems impermissible to treat agents in certain ways, and this impermissibility would give wrongdoers who are themselves wronged grounds for complaint. This article solves this apparent paradox by arguing that what is at issue is not the right simply to make complaints, but the right to have one's demands respected. Agents must accept the authority of (...) others to make second-personal demands on them before they can expect others to treat their own demands as legitimate. Wrongdoers’ previous wrongdoing shows they do not treat others’ demands as authoritative. However, as they are still beings with dignity, which acts as a source of moral reasons for others, wronging them remains impermissible. (shrink)