This chapter applies insights from the expressive theory of punishment to the case of the punishment of war criminals by international tribunals. Wringe argues that although such cases are not paradigmatic cases of punishment, the denunciatory account can still cast light on them. He argues that war criminals can be seen as members of an international community for which international tribunals can act as a spokesperson. He also argues that in justifying the punishment lof war criminals we should pay especial (...) attention to the expressive function of the trial. (shrink)

It has recently been suggested that the fact that punishment involves an intention to cause suffering undermines expressive justifications of punishment. I argue that while punishment must involve harsh treatment, harsh treatment need not involve an intention to cause suffering. Expressivists should adopt this conception of harsh treatment.

This paper considers the applicability of expressive theories of punishment to the punishment of corporate entities. The author argues that although arguments which suggest that the denunciatory account is superior to a communicative account in paradigmatic cases of punishment cannot be transferred straightforwardly to cover this kind of case, there are other reasons, connected with the different attitudes we have to regret and remorse in individual and collective cases, for preferring a communicative to a denunciatory account here.

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)

Two centuries after they were published, Kant's ethical writings are as much admired and imitated as they have ever been, yet serious and long-standing accusations of internal incoherence remain unresolved. Onora O'Neill traces the alleged incoherences to attempts to assimilate Kant's ethical writings to modern conceptions of rationality, action and rights. When the temptation to assimilate is resisted, a strikingly different and more cohesive account of reason and morality emerges. Kant offers a "constructivist" vindication of reason and a moral vision (...) in which obligations are prior to rights and in which justice and virtue are linked. O'Neill begins by reconsidering Kant's conceptions of philosophical method, reason, freedom, autonomy and action. She then moves on to the more familiar terrain of interpretation of the Categorical Imperative, while in the last section she emphasizes differences between Kant's ethics and recent "Kantian" ethics, including the work of John Rawls and other contemporary liberal political philosophers. (shrink)

There is a deep tension between liberalism and retributivism. On the face of it, one cannot coherently believe liberalism about the fundamental purpose of the state and retributivism about the basic end of legal punishment, given widely held and well-motivated or what I call ‘standard’ conceptions of these views. My aims in this article are to differentiate the types of conflict between liberalism and retributivism, to identify the strongest and most problematic type of conflict between them, to demonstrate that existing (...) strategies in the literature that might be invoked to resolve this conflict fail, and to present a new, conclusive way to resolve it. The solution lies in changing the standard conception of liberalism, which change, I argue, is warranted on independent grounds. Liberalism, up to now, has been conceived in a way that fails to best capture liberal intuitions. Upon improving our understanding of what liberal purposes essentially are, it becomes clear that retributive punishment is not merely logically consistent with them, but also partially constitutive of them. (shrink)

Many philosophers and laypeople have the following two intuitions about legal punishment: the state has a pro tanto moral reason to punish all those guilty of breaking a just law and to do so in proportion to their guilt. Accepting that there can be overriding considerations not to punish all the guilty in proportion to their guilt, many philosophers still consider it a strike against any theory if it does not imply that there is always a supportive moral reason to (...) do so. In this paper, I demonstrate that censure theory accounts for these intuitions much better than any other theory, including forms of retributivism such as desert theory and fairness theory, and explain why censure theory is able to do so. (shrink)

This paper is about how best to understand the notion of ‘public wrongs’ in the longstanding idea that crimes are public wrongs. By contrasting criminal law with the civil laws of torts and contracts, it argues that ‘public wrongs’ should not be understood merely as wrongs that properly concern the public, but more specifically as those which the state, as the public, ought to punish. It then briefly considers the implications that this has on criminalization.

How can a system of criminal punishment be justified? In particular can it be justified if the moral demand that we respect each other as autonomous moral agents is taken seriously? Traditional attempts to justify punishment as a deterrent or as retribution fail, but Duff suggests that punishment can be understood as a communicative attempt to bring a wrong-doer to repent her crime. This account is supported by discussions of moral blame, of penance, of the nature of the law's demands, (...) and of the proper meaning and purpose of the criminal process of trial and verdict: it deals both with the ideals that should inform a system of criminal law and the extent to which those ideals are actualised in existing institutions and practices. The conclusion is pessimistic: punishment cannot be justified within our legal system; and this gap between the ideal and the actual presents us with serious moral dilemmas. (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)

Some philosophers think that the challenge of justifying punishment can be met by a theory that emphasizes the expressive character of punishment. A particular type of theories of this sort - call it Expressive Retributivism [ER] - combines retributivist and expressivist considerations. These theories are retributivist since they justify punishment as an intrinsically appropriate response to wrongdoing, as something wrongdoers deserve, but the expressivist element in these theories seeks to correct for the traditional obscurity of retributivism. Retributivists often rely on (...) appeals to controversial intuitions involving obscure concepts. While retributive intuitions can be compelling, some worry that the justificatory challenge cannot be met merely by appealing to them. ER tries to enhance the clarity and justificatory power of these intuitions and the concepts they invoke by appealing to an expressive conception of punishment. I argue that these theories fail to justify punishment and that there is reason to think that they cannot, in principle, justify punishment. (shrink)

Expressivist theories of punishment received largely favorable treatment in the 1980s and 1990s. Perhaps predictably, the 2000s saw a slew of critical rejections of the view. It is now becoming evident that, while several objections to expressivism have found their way into print, three concerns are proving particularly popular. So the time is right for a big picture assessment. What follows is an attempt to show that these three dominant objections are not decisive reasons to give up the most plausible (...) forms of the view. Moreover, in addition to the three common objections, expressivism has an acknowledged question mark concerning whether the value of punitive expression outweighs its drawbacks. Here I also map out some promising avenues that the expressivist can take to answer this question. (shrink)

Part of the Studies in Crime and Public Policy series, this book, written by one of the top philosophers of punishment, examines the main trends in penal theorizing over the past three decades. Duff asks what can justify criminal punishment, and then explores the legitimacy of actual practices by examining what would count as adequate justification for them. Duff argues that a "communicative conception of punishment," which he presents as a third way between consequentialist and retributive theories, offers the most (...) fruitful way of understanding punishment's meaning and justification. Duff addresses such questions as how much sentences should be constrained by proportionality requirements; what modalities of punishment best communicate their intended meaning; and what decisionmaking procedures he envisions. This book will appeal to criminologists, philosophers, and others interested in theories of punishment. (shrink)

In A Theory of Justice, John Rawls defines a hypothetical contract situation and argues rational people will agree on reflection it is fair to contractors. He solves the rational choice problem it poses by deriving two lexically-ordered principles of justice and suggests the derivation justifies the principles. Its soundness aside, just what justificatory force does such a derivation have?On one view, there is no justificatory force because the contract is rigged specifically to yield principles which match our pre-contract moral judgments. (...) Rawls provides ammunition for this claim: “By going back and forth, sometimes altering the conditions of the contractual circumstances, at others withdrawing our judgments [about what is just] and conforming them to principle, I assume that eventually we shall find a description of the initial situation that both expresses reasonable conditions and yields principles which match our considered judgments duly pruned and adjusted.”. (shrink)

For most of this century, debate over how criminal justice should be transacted has alternated between an emphasis on retribution versus rehabilitation. Restoration has emerged in the 1990s as a credible third alternative. The most influential definition of restorative justice is by Tony Marshall in the context of a Delphi process conducted by Paul McCold: ‘Restorative justice is a process whereby all the parties with a stake in a particular offence come together to resolve collectively how to deal with the (...) aftermath of the offence and its implications for the future’. Restorative justice means restoring victims, restoring offenders and restoring communities. Among the losses victims, offenders or communities might want restored are property loss, injury, a sense of security, dignity, a sense of empowerment, voice, harmony based on a feeling that justice has been done, and social support. (shrink)

In this paper I am concerned with a problem for communicative theories of punishment. On such theories, punishment is justified at least in part as the authoritative censure or condemnation of crime. But is this compatible with a broadly liberal political outlook? For while liberalism is generally thought to take only a very limited interest in its citizens’ attitudes (seeing moral opinion as a matter of legitimate debate), the idea of state denunciation of crime seems precisely to be focused on (...) the attitudes expressed in action. In this paper I analyse the elements of the communicative theory of punishment, assessing the extent to which they can be considered anti-liberal. I argue that, understood in a certain way, the communicative theory, though in some sense communitarian, is compatible with at least one central and attractive non-perfectionist strand in liberalism. Key Words: communicative theory • Devlin • Duff • Hegel • von Hirsch • punishment. (shrink)

This paper considers the justifiability of removing the right to vote from those convicted of crimes. Firstly, I consider the claim that the removal of the right to vote from prisoners is necessary as a practical matter to protect the democratic process from those who have shown themselves to be untrustworthy. Secondly, I look at the claim that offenders have broken the social contract and forfeited rights to participate in making law. And thirdly, I look at the claim that the (...) voting ban is essential part of the justified punishment of serious offenders. These arguments have in common the feature that they attempt to articulate the sense in which rights imply responsibilities, particularly that voting rights should be conditional on one’s having met one’s civic responsibilities. I argue that the only interpretation of this view that could justify prisoner disenfranchisement is that which thinks of disenfranchisement as fair and deserved retributive punishment for crime. Against widespread opposition to, and confusion about, the importance of retributive punishment, I offer a brief defence. However, I conclude that even if legitimate retributive purposes could in principle justify prisoner disenfranchisement, the significance of disenfranchisement is such that it should be reserved for the most serious crimes. (shrink)

Women as commercial baby factories, nature as an economic resource, life as one big shopping mall: This is what we get when we use the market as a common ...

Two centuries after they were published, Kant's ethical writings are as much admired and imitated as they have ever been, yet serious and long-standing accusations of internal incoherence remain unresolved. Onora O'Neill traces the alleged incoherences to attempt to assimilate Kant's ethical writings to modern conceptions of rationality, action and rights. When the temptation to assimilate is resisted, a strikingly different and more cohesive account of reason and morality emerges. Kant offers a `constructivist' vindication of reason and a moral vision (...) in which obligations are prior to rights and in which justice and virtue are linked. O'Neill begins by reconsidering Kant's conceptions of philosophical method, reason, freedom, automony and action. She then moves on to the more familiar terrain of interpretation of the Categorical Imperative, while in the last section she emphasises differences between Kant's ethics and recent 'Kantian' ethics, including the work of John Rawls and other contemporary liberal political philosophers. This reassessment will add significantly to the understanding of Kantian practical philosophy. (shrink)

Christopher Bennett presents a theory of punishment grounded in the practice of apology, and in particular in reactions such as feeling sorry and making amends. He argues that offenders have a 'right to be punished' - that it is part of taking an offender seriously as a member of a normatively demanding relationship that she is subject to retributive attitudes when she violates the demands of that relationship. However, while he claims that punishment and the retributive attitudes are the necessary (...) expression of moral condemnation, his account of these reactions has more in common with restorative justice than traditional retributivism. He argues that the most appropriate way to react to crime is to require the offender to make proportionate amends. His book is a rich and intriguing contribution to the debate over punishment and restorative justice. (shrink)

Nozick analyzes fundamental issues, such as the identity of the self, knowledge and skepticism, free will, the foundations of ethics, and the meaning of life.

A number of jurisdictions, including England and Wales after their adoption of the 1991 Criminal Justice Act, require that sentences be `proportionate' to the severity of the crime. This book, written by the leading architect of `just deserts' sentencing theory, discusses how sentences may be scaled proportionately to the gravity of the crime. Topics dealt with include how the idea of a penal censure justifies proportionate sentences; how a penalty scale should be `anchored' to reduce overall punishment levels; how non-custodial (...) penalties should be graded and used; and how political pressures impinge on sentencing policies. (shrink)

In this book, David Boonin examines the problem of punishment, and particularly the problem of explaining why it is morally permissible for the state to treat those who break the law in ways that would be wrong to treat those who do not? Boonin argues that there is no satisfactory solution to this problem and that the practice of legal punishment should therefore be abolished. Providing a detailed account of the nature of punishment and the problems that it generates, he (...) offers a comprehensive and critical survey of the various solutions that have been offered to the problem and concludes by considering victim restitution as an alternative to punishment. Written in a clear and accessible style, The Problem of Punishment will be of interest to anyone looking for a critical introduction to the subject as well as to those already familiar with it. (shrink)

This book offers a critical examination of those theories and advances a new argument for punishment's justification, calling it the 'duty view'.

Christine Korsgaard has become one of the leading interpreters of Kant's moral philosophy. She is identified with a small group of philosophers who are intent on producing a version of Kant's moral philosophy that is at once sensitive to its historical roots while revealing its particular relevance to contemporary problems. She rejects the traditional picture of Kant's ethics as a cold vision of the moral life which emphasises duty at the expense of love and value. Rather, Kant's work is seen (...) as providing a resource for addressing not only the metaphysics of morals, but also for tackling practical questions about personal relations, politics, and everyday human interaction. This collection contains some of the finest current work on Kant's ethics and will command the attention of all those involved in teaching and studying moral theory. (shrink)

These essays in political philosophy by T. M. Scanlon, written between 1969 and 1999, examine the standards by which social and political institutions should be justified and appraised. Scanlon explains how the powers of just institutions are limited by rights such as freedom of expression, and considers why these limits should be respected even when it seems that better results could be achieved by violating them. Other topics which are explored include voluntariness and consent, freedom of expression, tolerance, punishment, and (...) human rights. The collection includes the classic essays 'Preference and Urgency', 'A Theory of Freedom of Expression', and 'Contractualism and Utilitarianism', as well as a number of other essays that have hitherto not been easily accessible. It will be essential reading for all those studying these topics from the perspective of political philosophy, politics, and law. (shrink)

This book provides a systematic, philosophically informed account of criminal responsibility. It begins by providing a general account of criminal responsibility based on the relationship between the action that the defendent has performed and their character. It then moves on to reconsider some of the central doctrines of criminal responsibility in the light of that account.

This book draws upon philosophical arguments, criminological evidence, and legal literature on prisoners' rights and sentencing to explore the restrictions and deprivations that can be legitimately imposed on serious offenders in the name of punishment.

Paul E. Griffiths argues that most research on the emotions has been as misguided as Aristotelian efforts to study "superlunary objects" - objects...

Most punishment theories acknowledge neither the full extent of the harms which punishment risks, nor the caring practices which punishment entails. Consequently, I shall argue, punishment in most of its current conceptualizations is inconsistent with treating offenders as equals qua persons. The nature of criminal punishment, and of our interactions with offenders in punishment decision-making and delivery, risks causing harm to offenders. Harm is normalized when central to definitions of punishment, desensitizing us to unintended harms and obscuring caring practices. Offenders (...) may be partially silenced and excluded by mainstream criminal justice practices which limit interaction between offenders and practitioners. When we ignore significant harms, or silence and exclude, we treat others as passive non-subjects. This partially objectifies offenders, and is inconsistent with treatment as equals. Penal theories employing harm-centred and harm-normalizing definitions of punishment can provide few resources to help practitioners either avoid, or recognize and respond to, harms. Care ethics, by contrast, motivates the avoidance of harm, ongoing inclusive engagement, and respectful interaction with others. I argue that defining punishment without presupposing harm facilitates the identification of morally problematic harms, and recognition of caring practices. I offer a principled argument, and political and pragmatic supplementary arguments, for responding to offenders without intentional harm and with care. Principles drawn from care ethics can help to strengthen mainstream criminal practices by structuring decision-making and action. Bottom-up alternative criminal justice practices share some values with these proposed guiding principles, allowing a partial test of the principles. I consider examples of restorative justice practices, therapeutic jurisprudence, community justice and other problem-solving court practices, in addition to considering how well mainstream punishment practices measure up to these principles. My analysis illuminates the strengths and weaknesses of the principles, and how they might contribute to securing treatment as equals for offenders in mainstream practices. (shrink)