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)

In contemporary free will theory, a significant number of philosophers are once again taking seriously the possibility that human beings do not have free will, and are therefore not morally responsible for their actions. Free will theorists commonly assume that giving up the belief that human beings are morally responsible implies giving up all our beliefs about desert. But the consequences of giving up the belief that we are morally responsible are not quite this dramatic. Giving up the belief that (...) we are morally responsible undermines many, and perhaps most, of the desert claims we are pretheoretically inclined to accept. But it does not undermine desert claims based on the sheer fact of personhood. Even in the absence of belief in moral responsibility, personhood-based desert claims require us to respect persons and their rights. So personhood-based desert claims can provide a substantial role for desert in free will skeptics' ethical theories. (shrink)

The first part of this paper surveys five perspectives in Kant’s philosophy on the quantity of retribution to be inflicted on wrongdoers, ordered by two dimensions of difference – whether they are theoretical or practical perspectives, and the quantity of retribution they prescribe: (1) theoretical zero, the perspective of theoretical philosophy; (2) practical infinity, the perspective of God and conscience; (3) practical equality, the perspective of punishment in public law; (4) practical degrees, the perspective we adopt in private relations to (...) others and (5) practical zero, a perspective I argue is entailed by Kant’s doctrine of strict right, which is his justification of coercing compliance with public law. Kant acknowledges 1–4 but not 5. The second part draws on Kant’s account of the burden of proof in criminal law to argue that Kant is wrong to adopt 3 in responding to criminals, and that we ought to adopt 5 instead. (shrink)

Wrongdoing and the Moral Emotions provides an account of how we might effectively address wrongdoing given challenges to the legitimacy of anger and retribution that arise from ethical considerations and from concerns about free will. The issue is introduced in Chapter 1. Chapter 2 asks how we might conceive of blame without retribution, and proposes an account of blame as moral protest, whose function is to secure forward-looking goals such as the moral reform of the wrongdoer and reconciliation in relationships. (...) Chapter 3 considers whether it's possible to justify effectively dealing those who pose dangerous threats if they do not deserve to be harmed, and contends that wrongfully posing a threat is the core condition for the legitimacy of defensive harming. Chapter 4 provides an account of how to treat criminals without a retributive justification for punishment, and argues for an account in which the right of self-defense provides justification for measures such as preventative detention. Chapter 5 considers how we might forgive if wrongdoers don't basically deserve the pain of being resented, which forgiveness would then renounce, and proposes that forgiveness be conceived instead as renunciation of the stance of moral protest. Chapter 6 considers how personal relationships might function without retributive anger having a role in responding to wrongdoing, and contends that the stance of moral protest, supplemented with non-retributive emotions, is sufficient. Chapter 7 surveys the options for theistic and atheistic attitudes regarding the fate of humanity in a deterministic universe, and defends an impartial hope for humanity. (shrink)

Previous edition, 1st, published in 1971.

Some contemporary philosophers maintain we lack the kind of free will that makes us morally responsible for our actions. Some of these philosophers, such as Derk Pereboom, Gregg Caruso, and Bruce Waller, also argue that such a view supports the case for significant reform of the penal system. Pereboom and Caruso explicitly endorse a quarantine model for dealing with dangerous criminals, arguing that while not responsible for their crimes such criminals should be detained in non-harsh conditions and offered the opportunity (...) for rehabilitation. Waller does not explicitly endorse the quarantine model, but his view is similar in significant respects. I argue that such views can too easily lead to the endorsement of legal policies which would result in more frequent punishment of innocent persons for crimes they have not committed. Thus, we should have deep moral reservations about such views. (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)

Traditionally Kant's theory of punishment has been seen as wholly retributive. Recent Kantian scholarship has interpreted the theory as more moderately retributive: punishment is deterrent in aim, and retributive only in so far as the amount and type of penalty is to be determined by retributive considerations (the ius talionis). But it is arguable that a more coherent Kantian theory of punishment can be developed which makes no appeal to retribution at all: hypothetical contractors would have no good reason to (...) endorse punishment distributed retributively. This position is first sketched behind Rawls's neo‐Kantian ‘veil of ignorance’, and it is suggested that the same theory will emerge from Scanlon's more relaxed neo‐Kantian position. (shrink)

This chapter offers non-retributive, broadly Kantian justifications of punishment and remorse that can be endorsed by free will skeptics. We lose our grip on some Kantian ideas if we become skeptical about free will, but we can preserve some important ones that can do valuable work for free will skeptics. The justification of punishment presented here has consequentialist features but is deontologically constrained by our duty to avoid using others as mere means. It draws on a modified Rawlsian original position (...) in which we assume we are just as likely to be among the punished when the veil of ignorance is raised as we are to be among those protected by the institution of punishment. The justification of remorse presented here is care-based and draws on the value of sympathizing with people we have wronged, which has a Kantian ground in the duty to take others’ ends as our own. (shrink)