This comment text brings, at the end, a part of Surveiller et Punir (Discipline and Punish), which has not been translated into Portuguese and does not appear in more than 40 editions of the Brazilian translation. It is on the back cover of the original in French, as if it were an afterword, signed by the author himself, Michel Foucault, which more than 40 years ago published by Editions Gallimard, his first copies in February 1975. Two years later, (...) the Brazilian version was published, but without this part which contains the reflection that Foucault invites us to think about at the end of his work:“Can the genealogy of modern morality be drawn from a political history of bodies?”(Foucault, 1975, p. 318, my translation). In addition to this absence, in the text in Portuguese, we have to think about why Foucault chose to put it in the final part of the book? (shrink)

If one can judge a society by how it treats its prisoners, one can surely judge a society by how it treats cognitively- and learning-impaired children. In the United States children with physical and cognitive impairments are subjected to higher rates of corporal punishment than are non-disabled children. Children with disabilities make up just over 13% of the student population in the U.S. yet make up over 18% of those children who receive corporal punishment. Autistic children are among the most (...) likely to receive corporal punishment. -/- Although they may deny or redescribe particular instances of corporal punishment or their use of restraints, educators defend such actions as legitimate punishment. In this paper, I assess the logic underlying the use of restraints and corporal punishment on autistic children by educators. The rationalizations for the corporal punishment or restraint of autistics stems from the educator’s desire to control the autistic children so as to end typical autistic behaviors such as rocking, repetitive verbalizations, or “flapping” but also the autistic child’s non-affective responses such as not appearing to feel remorse or shame or the absence of a verbal acknowledgement of remorse or shame. The educators assume that the autistic’s failure to exhibit the desired responses is evidence of the autistic’s moral incorrigibility and is, therefore, evidence of the appropriateness of corporal punishment. But this assumption of the incorrigibility of the autistic child is questionable. -/- Indeed accepting this incorrigibility assumption reveals two important problems. First, instructors using physical punishment on autistic children do not understand autism. Second, they are not working with a tenable conception of punishment. Any action undertaken to induce socially acceptable behaviors (whether it be the end of autistic acts or responses such as remorse) is to fail to understand what the legitimate punishment of children is about. (shrink)

Foucault‘s Discipline and Punish - Irfan Ajvazi.

Foucault’s Discipline and Punish- Irfan Ajvazi.

In this paper, I will provide an interpretation of Foucauldian theoretical understanding on natures of power from sovereign power to biopolitics. In order to give further depth and texture to what he means by biopolitics, I will attempt to connect biopolitics with his earlier work Discipline and Punish. The term ‘biopolitics’ was actually mentioned by Foucault on the last chapter of his History of Sexuality Volume 1: An Introduction, where he also claimed it as a technology of power (...) linked to biopower. Foucault wrote that the highest function of biopolitics is not to kill, but to invest life through and through in the machineries of production. If that is the case, then, biopolitics aims to ensure the longevity, health, and wellness of the social bodies. However, if biopolitics is the politics that safeguard life, how come that the innumerable individuals are situated in dire condition? To answer this question, the work of Antonio Negri and Michael Hardt will be used to understand further the nature of biopolitics and its effects in the social terrain specially in the contemporary society. (shrink)

This article presents a new account of the relationship between Michel Foucault’s work and neoliberalism, aiming to show that the relationship is significantly more complicated than either Foucault’s critics or defenders have appreciated in the recent controversy. On the one hand, I argue that Foucault’s salutary response to some of Gary Becker’s ideas in the lecture course from 1979 should be read together with the argument of Discipline and Punish. By means of this contextualization I show that Foucault’s (...) sympathetic response to Becker is limited to the domain of penal practices, specifically concerning the question of how to resist their rationality of normalization, and thus it involves no broader commitment to neoliberal economic theory or its political implications. On the other hand, however, I argue that there is a strategic allegiance between Foucault’s work and the ascendance of the neoliberal rationality of governing, although it has nothing to do with his sympathetic engagement with Becker’s work. Instead, I explain how Foucault’s focus on the political stakes of subjectivity has helped to congeal, in the posthumous neoliberal context, a conception of politics that leaves out the topic of economic equality. To explain how Foucault’s work has had this unintended yet lasting effect, I introduce the concept of topical exclusion. It designates a social mechanism of producing ignorance, which operates by directing attention instead of creating false consciousness. The strategic relationship between Foucault’s work and neoliberalism today illustrates that this type of explanation is essential in the analysis of power relations. Thus, my account motivates the adoption of topical exclusion as a conceptual supplement that equips the Foucaultian framework to study cases in which relations of power harness, produce, and sustain ignorance, not knowledge. (shrink)

This article is a critical examination of the approach to truth in Foucault’s late writing on the topic of ‘parrhesia’. I argue that his 1983 Berkeley seminar on ‘Discourse and Truth’ approaches the topic of truth as a positive value and that this approach presents, at least prima facie, a problem of continuity with his earlier critique of the presumption of an exclusionary relation between truth and power in works such as Discipline and Punish and The History of (...) Sexuality: An Introduction. Does the ethical notion of ‘parrhesia’ imply a different relation between truth and power than the one developed in the earlier works? And if so, what are we to make of the difference? In particular, 1) what does it mean to say that speaking the truth is dangerous? And 2) Are the two positions on truth compatible? What does it take to reconcile the two perspectives? (shrink)

Forgiveness as a positive response to wrongdoing is a widespread phenomenon that plays a role in the moral lives of most persons. Surprisingly, Kant has very little to say on the matter. Although Kant dedicates considerable space to discussing punishment, wrongdoing and grace, he addresses the issues of human forgiveness directly only in some short passages in the Lectures on Ethics and in one passage of the Metaphysics of Morals. As noted by Sussman, the TL passage, however, betrays some ambivalence. (...) Kant establishes a duty of virtue to be forgiving (TL, 6:460), yet he immediately warns against its excess: meek toleration of recurrent wrongs could manifest a lack of self-respect and a violation of a duty to oneself (TL, 6:461). Sussman claims that this ambivalence ultimately arises from the fact that forgiveness sits uncomfortably in Kant’s moral thought. First, forgiveness has an ‘ineluctably elective aspect’ that makes it, to a certain extent, arbitrary and dependent on particular features of the forgiver’s psychology and, as such, in tension with Kant’s central claims that human beings are autonomous agents capable of determining their own moral status. Second, according to Sussman, Kant’s moral retributivism, i.e. ‘the particular moral position that every moral wrong against another deserves punishment of the wrongdoer’ seems to be in tension with the possibility of a ‘truly redemptive forgiveness’. Moreover, forgiveness also seems to be in tension with a passage of the Religion in which Kant argues that the moral guilt from our original evil disposition cannot be understood as a debt or liability that can be compensated, erased, transferred or otherwise wiped out by others (Rel, 6:72). Thus, to the extent that forgiveness might be thought to involve the forgoing of moral guilt, it seems incompatible with Kant’s views on culpability and punishment. This chapter seeks to clarify Kant’s views on forgiveness in order to show that, although not often appreciated, personal forgiveness plays an important role in the lives of ordinary human agents as understood by Kant. In particular, I aim to show there is a conception of forgiveness available to Kant that is not incompatible with Kant’s views of punishment and culpability. In Section 1, I argue that, for Kant, far from being merely ‘elective,’ forgiveness is, under certain conditions, morally required. I provide a brief summary of an interpretation of Kant’s theory of forgiveness that I have defended in recently published work , in order to argue that Kant’s duty to be forgiving should be understood as an imperfect duty of virtue which is conditional on repentance. Kant is not ambivalent about this duty because he maintains that when the relevant conditions are not met, we have a perfect duty to ourselves not to forgive unrepentant wrongdoers. The TL passage thus identifies two different duties. In Section 2, I show that forgiveness, as conceptualised by Kant, does not require the forgoing of punishment or the overcoming of moral guilt and that this could, in fact, be seen as an attractive feature of Kant’s position. I end by offering a very brief assessment of Kant’s views. (shrink)

According to legal expressivism, neither crime nor punishment consists merely in intentionally imposing some kind of harm on another. Crime and punishment also have an expressive aspect. They are what they are in part because they enact attitudes toward others—in the case of crime, some kind of disrespect, at least, and in the case of punishment, society’s condemnation or reprobation. Punishment is justified, at least in part, because (and when) it uniquely expresses fitting condemnation or other retributive attitude. What makes (...) retributive attitudes fitting is that they protect the victim’s status as inviolable. Hate or bias crimes dramatize the expressive aspect of crime, as they are often designed to send a message to the victim’s group and society at large. Treating the enactment of contempt and denigration toward a historically underprivileged group as an aggravating factor in sentencing may be an appropriate way to counter this message, as it reaffirms and indeed realizes the fundamental equality and inviolability of all members of a democratic community. (shrink)

I argue that sports clubs should be punished for bad behaviour by their fans in a way that affects the club’s sporting success: for example, we are justified in imposing points deductions and competition disqualifications on the basis of racist chanting. This is despite a worry that punishing clubs in such a way is unfair because it targets the sports team rather than the fans who misbehaved. I argue that this belies a misunderstanding of the nature of sports clubs and (...) of the nature of sporting success. Further, I argue that fans should want to be held responsible in such a way because it vindicates the significant role that they play in the life of their club. (shrink)

Philosophers have focused on why privacy is of value to innocent people with nothing to hide. I argue that for people who do have something to hide, such as a past crime, or bad behavior in a public place, informational privacy can be important for avoiding undeserved or disproportionate non-legal punishment. Against the objection that one cannot expect privacy in public facts, I argue that I might have a legitimate privacy interest in public facts that are not readily accessible, or (...) in details of a public fact that implicate my dignity, or in not having a public fact memorialized and spread to more people than I willingly exposed myself to. (shrink)

T. M. Scanlon’s contractualism is a meta-ethical theory that explains moral motivation and also provides a conception of how to carry out moral deliberation. It supports non-consequentialism – the theory that both consequences and deontological considerations are morally significant in moral deliberation. Regarding the issue of punishment, non-consequentialism allows us to take account of the need for deterrence as well as principles of fairness, justice, and even desert. Moreover, Scanlonian contractualism accounts for permissibility in terms of justifiability: An act is (...) permissible if and only if it can be justified to everyone affected by it. This contractualist thesis explains why it is always impermissible to frame an innocent person, why vicarious punishment is impermissible, and why there has to be a cap on sentences. Contractualism therefore allows us to take deterrence as a goal of punishment without the excess of utilitarianism. This paper further argue that the resulting view is superior to pure retributivism. Finally, it shows why legal excuses and mitigation can be justified in terms of the notion of negative desert. (For access to this paper: http://www.tandfonline.com/eprint/sJ2JBVXkztyFMGmxS7tS/full ) . (shrink)

Every criminal act ought to be matched by a corresponding punishment, or so we may suppose, and every punishment ought to reflect a criminal act. We know how to count punishments. But how do we count crimes? In particular, how does our notion of a criminal action depend on whether the prohibited action is an activity, an accomplishment, an achievement, or a state?

I argue that the evolutionary history of anger has substantive implications for normative ethics. In the process, I develop an evolutionary account of anger and its influence on action. First, I consider a prominent argument by Peter Singer and Joshua Greene. They conclude that evolutionary explanations of human cooperation debunk – or undercut the evidential value of – the moral intuitions supporting duty ethics (as opposed to utilitarian or consequentialist ethics). With this argument they aim to defend consequentialist theories. However, (...) their argument also threatens to debunk intuitions that support consequentialist theories. I give a novel argument that overcomes this difficulty. Specifically, I offer an evolutionary story about anger that can explain retributive, duty-oriented intuitions concerning punishment. This explanation debunks these intuitions (and not others) by showing that they were selected for their biological consequences rather than their accuracy (concerning duties to punish). I develop this explanation by raising and resolving three additional problems. First, prominent evolutionary explanations of retributive motives fail because they appeal to models that apply only to organisms with strategic insight. To mitigate this problem, I explain the existence of a retributive-like motive in rodents by appealing to an economic model of resource competition, which applies to organisms without strategic insight. Second, I show that human anger was shaped by resource competition of this kind. To do so, I develop evidential criteria to determine when psychological systems in different species share common evolutionary origins. I deploy these criteria to argue that human anger and the retributive motive in rodents derive from the same ancestral trait. Finally, the continuity of anger across human and nonhuman animals stands in tension with the idea that anger causes purposive behavior like retribution or retaliation. I argue that differences between the angry behaviors of human and nonhuman animals are differences in degree and not in kind. In the end, this evolutionary story both explains and undermines retributive intuitions, but not in the straightforward way that Singer and Greene suppose. (shrink)

The article discusses the corruption of the state administration and clergy as one of the factors of persistence of paganism in Later Roman Empire. The spread of the practice of bribing state officials and clergymen by pagans, coming from different social strata of the Late Roman Society is demonstrated by various examples. It is suggested that this phenomenon was a result of the spread of suffragium.

In recent decades, there has been growing interest among philosophers in what the various Buddhist traditions have said, can say, and should say, in response to the traditional problem of free will. This article investigates the relationship between Buddhist philosophy and the historical problem of free will. It begins by critically examining Rick Repetti's Buddhism, Meditation, and Free Will (2019), in which he argues for a conception of “agentless agency” and defends a view he calls “Buddhist soft compatibilism.” It then (...) turns to a more wide‐ranging discussion of Buddhism and free will—one that foregrounds Buddhist ethics and takes seriously what the various Buddhist traditions have said about desert, punishment, and the reactive attitudes of resentment, indignation, and moral anger. The article aims to show that, not only is Buddhism best conceived as endorsing a kind of free will skepticism, Buddhist ethics can provide a helpful guide to living without basic desert moral responsibility and free will. (shrink)

When Katniss first arrives in the Capitol, she is both amazed and repulsed by the dramatic body- modifications and frivolous lives of its citizens. “What do they do all day, these people in the Capitol,” she wonders, “besides decorating their bodies and waiting around for a new shipment of tributes to roll in and die for their entertainment?” In this paper, I argue that the more time and energy the Capitol citizens focus on body-modification and their social lives, the more (...) self-focused they become and the less likely they are to notice or care about political injustices that don’t directly affect them. A further examination of how the frivolity of the citizens is actually used by the Capitol to strengthen its power also provides insight into what seems most troubling about the lives of the citizens not just of the Capitol but of District 13 as well—namely, their lack of self-directed significance. (shrink)

In this paper I pursue two closely related objectives. First, I articulate and describe the nature and character of Hume's theory of punishment. Second, in light of this account, I offer an assessment of the contem- porary interest and value of Hume's theory. Throughout my discus- sion I emphasize the relevance and importance of Hume's views on moral responsibility to his account of punishment.1 More specifically, I argue that Hume seeks to develop an account of punishment on the foundation of (...) a naturalistic theory of responsibility - that is, a theory which draws our attention to the role of moral sentiment in this sphere.2 Although this naturalistic aspect of Hume's theory of punishment has been largely overlooked by commentators, I maintain that it is, nevertheless, precisely this aspect of Hume's theory that is especially interesting from a contemporary pers. (shrink)

An ongoing debate in the philosophy of action concerns the prevalence of moral luck: instances in which an agent’s moral responsibility is due, at least in part, to factors beyond his control. I point to a unique problem of moral luck for agents who depend upon Brain Computer Interfaces (BCIs) for bodily movement. BCIs may misrecognize a voluntarily formed distal intention (e.g., a plan to commit some illicit act in the future) as a control command to perform some overt behavior (...) now. If so, then BCI-agents may be deserving of punishment for the unlucky but foreseeable outcomes of their voluntarily formed plans, whereas standard counterparts who abandon their plans are not. However, it seems that the only relevant difference between BCI-agents and their standard counterparts is just a matter of luck. I briefly sketch different solutions that attempt to avoid this type of moral luck, while remaining agnostic on whether any succeeds. If none of these solutions succeeds, then there may be a unique type of moral luck that is unavoidable with respect to deserving punishment for certain BCI-mediated behaviors. (shrink)

Paper presented at a meeting of the International Association for Philosophy and Literature, Stony Brook, New York, USA, May 2000. -/- Foucault rejects the idea of intellectuals acting as "prophets": telling others what must be done and what sorts of social and political goals they should pursue. I argue that in outright rejecting such prophecy, Foucault may not be pursuing the most effective means of eventually breaking it down. I locate in Foucauldian genealogical works such as Discipline and (...) class='Hi'>Punish a rhetorical strategy through which the intellectual acts as a prophet while also distancing him/herself from this role: the genealogist speaks as a universal intellectual while also encouraging others to question the truths thus provided, as well as the role of the intellectual as prophet itself. I argue that in so doing the genealogist engages in a kind of exile, a term I borrow from Edward Said to denote a movement of distancing without effecting a clean break. This intellectual, rather than rejecting outright the role of the prophet, works within this role while yet distancing him/herself from it -- acting as (what I call) a “prophet in exile.”. (shrink)

Despite the enormity of the financial losses flowing from the 2008 financial crisis and the outrageousness of the conduct that led up to it, almost no individual involved has been prosecuted for criminal conduct, much less actually gone to prison. What this chapter argues is that the failure to punish those in management for their role in this misconduct stems from a misunderstanding of the need to prove that they personally knew of this wrongdoing and harbored an intent to (...) defraud. But not only would negligence be a sufficient legal and moral basis for imposing terms of imprisonment in these cases, mere causal responsibility would also be enough, for causal responsibility has embed in it all we need to find those causally responsible morally responsible too, and once some basis for moral responsibility is established, the imposition of terms of imprisonment is both legally permitted and morally just. (shrink)

Interpreting others' actions is essential for understanding the intentions and goals in social interactions. Activity in the motor cortex is evoked when we see another person performing actions, which can also be influenced by the intentions and context of the observed action. No study has directly explored the influence of reward and punishment on motor cortex activity when observing others' actions, which is likely to have substantial relevance in different social contexts. In this experiment, EEG was recorded while participants watched (...) movie clips of a person performing actions that led to a monetary reward, loss or no change for the observer. Using the EEG mu rhythm as an index of motor resonance, our results demonstrate that observation of rewarding actions produce significantly greater motor cortex activity than punishing or neutral actions, with punishing actions producing greater activity than neutral ones. In addition, the dynamic change in the mu rhythm over sensorimotor cortex is modulated by reward and punishment, with punishing actions producing a prolonged suppression. These findings demonstrate that the associated reward value of an observed action may be crucial in determining the strength of the representation of the action in the observer's brain. Consequently, reward and punishment is likely to drive observational learning through changes in the action observation network, and may also influence how we interpret, understand, engage in and empathize with others' actions in social interaction. (shrink)

Increasing evidence from psychology and neuroscience suggests that emotion plays an important and sometimes critical role in moral judgment and moral behavior. At the same time, there is increasing psychological and neuroscientific evidence that brain regions critical in emotional and moral capacity are impaired in psychopaths. We ask how the criminal law should accommodate these two streams of research, in light of a new normative and legal account of the criminal responsibility of psychopaths.

This study investigated the students’ perception of discipline management and their academic performance in Cross River State. Two null hypotheses were formulated to guide the study. The study adopted a correlational research design while a simple random sampling technique was used in selecting a sample of 180 students. The instrument used for data collection was a questionnaire tagged: “Students’ Perception of Discipline Management and Academic Performance Questionnaire (SPDMAPQ).” Pearson product moment correlation statistical technique was used to test the (...) null hypotheses at .05 level of significance and 178 degrees of freedom. The findings revealed that students’ perception of suspension and expulsion management is significantly related to their academic performance respectively. Based on these findings, it was recommended among other things that; parents should encourage their children/ward to maintain good attitudes that will not lead to their suspension or withdrawal from school; and that principals should listen properly to offenses of students and mete out the right discipline so that students will not be suspended or expelled in an unjustifiable manner. (shrink)

Amidst the COVID-19 pandemic, issues and crises arise from the quarantine and/or lockdown policy prompting the United Nations to note the Philippines’ “highly militarized response”. In this regard, this paper discusses Michel Foucault’s Discipline and Punish: The Birth of the Prison citing its “the segmented space”, “the surveillance”, “the syndic”, and “the supplice” (henceforth, 4S), and at the same time, weighs the pros and cons constituted from the concrete condition of the citizens. Given the foregoing discourse, this paper (...) sees the relevance of Foucault’s Discipline and Punish, maintaining that forty-five years after its publication it can still expound on the logic and context to place communities under quarantine and/or lockdown. Wherefore, the COVID-19 pandemic gives credence to Michel Foucault’s Discipline and Punish vis-a-vis the philosophical, political, and social discourse that the society is facing. (shrink)

This brief reply to Ferzan shows that her recent review of Self-Defense, Necessity, and Punishment is incoherent and completely misrepresents a central claim of mine (to the point of attributing to me the opposite claim than the one I am actually and quite clearly and explicitly making). Her other criticisms fall flat too.

I argue that rights-forfeiture by itself is no path to permissibility at all (even barring special circumstances), neither in the case of self-defense nor in the case of punishment. The limiting conditions of self-defense, for instance – necessity, proportionality (or no gross disproportionality), and the subjective element – are different in the context of forfeiture than in the context of justification (and might even be absent in the former context). In particular, I argue that a culpable aggressor, unlike an innocent (...) aggressor, forfeits rights against proportionate defense, including unnecessary defense (as well as rights against the infliction of proportionate non-defensive harm). Yet, I demonstrate that this stance need not lead to the abandonment of the necessity condition of justified self-defense in the case of a culpable aggressor. Since justification and liability are not the same, there is no reason to assume that the necessity condition of justified self-defense must be explained under an appeal to the aggressor’s rights. Parallel arguments apply to the other limiting conditions of permissible self-defense as well as to the limiting conditions of permissible punishment. Accordingly, I also sketch alternative explanations of the proportionality requirement and the subjective element. All these alternative explanations appeal to a principle of precaution: instead of explaining the unjustifiability of unnecessarily harming a culpable attacker or wrongdoer by an appeal to the rights of the attacker or wrongdoer himself, one can also, and better, explain it by a requirement to take reasonable precautions against violating the rights of innocent people. (shrink)

How should we punish criminal offenders? One prima facie attractive punishment is administering a mandatory neurointervention—interventions that exert a physical, chemical or biological effect on the brain in order to diminish the likelihood of some forms of criminal offending. While testosterone-lowering drugs have long been used in European and US jurisdictions on sex offenders, it has been suggested that advances in neuroscience raise the possibility of treating a broader range of offenders in the future. Neurointerventions could be a cheaper, (...) and more effective method of punishment. They could also be more humane. Nevertheless, in this paper we provide an argument against the use of mandatory neurointerventions on offenders. We argue that neurointerventions inflict a significant harm on an offender that render them a morally objectionable form of punishment in a respect that incarceration is not. Namely, it constitutes an objectionable interference with the offender’s mental states. However, it might be thought that incarceration also involves an equally objectionable interference with the offender’s mental states. We show that even if it were the case that the offender is harmed to the same extent in the same respect, it does not follow that the harms are morally equivalent. We argue that if one holds that intended harm is more difficult to justify than harm that is unintended but merely foreseen, this means neurointerventions could be morally objectionable in a significant respect that incarceration is not. (shrink)

Crime takes its toll on any community. Crime does not always make a criminal. Therefore, punishment, once served, should be adequate for reconciliation and not deprive a person of life, liberty, and a remunerable career. Taking an honest look at the system is taking an even more honest look at the self and how it treats other people.

This classic collection of essays, first published in 1968, represents H.L.A. Hart's landmark contribution to the philosophy of criminal responsibility and punishment. Unavailable for ten years, this new edition reproduces the original text, adding a new critical introduction by John Gardner, a leading contemporary criminal law theorist.

Many criminal offenders come from disadvantaged backgrounds, which punishment entrenches. Criminal culpability explains some disadvantageous treatment in state-offender interactions; yet offenders remain people, and ‘some mother’s child’, in Eva Kittay’s terms. Offending behaviour neither erases needs, nor fully excuses our responsibility for offenders’ needs. Caring is demanded in principle, recognising the offender’s personhood. Supporting offenders may amplify welfare resources: equipping offenders to provide self-care; to meet caring responsibilities; and enabling offenders’ contribution to shared social life, by providing support and furthering (...) the choices of others seeking to engage with them. The desistance paradigm (viewing desistance from offending as a process, following from an offender’s active choice in the context of stabilising social structures and personal circumstances), implies that a supportive environment may facilitate reduced recidivism. While decisions about criminal culpability need justice, we may use state resources most effectively by also including care ethics in our thinking about punishment. (shrink)

This book is the first comprehensive study of the meaning and measure of enforceability. While we have long debated what restraints should govern the conduct of our social life, we have paid relatively little attention to the question of what it means to make a restraint enforceable. Focusing on the enforceability of legal rights but also addressing the enforceability of moral rights and social conventions, Mark Reiff explains how we use punishment and compensation to make restraints operative in the world. (...) After describing the various means by which restraints may be enforced, Reiff explains how the sufficiency of enforcement can be measured, and he presents a unified theory of deterrence, retribution, and compensation that shows how these aspects of enforceability are interconnected. Reiff then applies his theory of enforceability to illuminate a variety of real-world problem situations. (shrink)

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)

A curious and comparatively neglected element of death penalty jurisprudence in America is my target in this paper. That element concerns the circumstances under which severely mentally disabled persons, incarcerated on death row, may have their sentences carried out. Those circumstances are expressed in a part of the law which turns out to be indefensible. This legal doctrine—competence-for-execution —holds that a condemned, death-row inmate may not be killed if, at the time of his scheduled execution, he lacks an awareness of (...) his impending death or the reasons for it. I argue that the law of CFE should be abandoned, along with the notion that it is permissible to kill the deeply disturbed just so long as they meet some narrow test of readiness to die. By adopting CFE, the courts have been forced to give independent conceptual and moral significance to a standard for competence that simply cannot bear the weight placed upon it. To be executable, CFE requires that a condemned prisoner meet a standard demonstrating an awareness of certain facts about his death. Yet this standard both leads to confusing and counter-intuitive results and is unsupported either by the reasons advanced by the courts on its behalf or by any of the standard theoretical justifications of criminal punishment. If executing the profoundly psychotic or delusional is wrong the law needs a better account of the wrong done when prisoners like Ford are killed. I suggest wherein that wrong might be located. (shrink)

In this paper we explore the relationship between forgiving and punishment. We set out a number of arguments for the claim that if one forgives a wrongdoer, one should not punish her. We then argue that none of these arguments is persuasive. We conclude by reflecting on the possibility of institutional forgiveness in the criminal justice setting and on the differences between forgiveness and acts of mercy.

Kant's notion of ‘discipline’ has received considerable attention from scholars of his philosophy of education, but its role in his theoretical philosophy has been largely ignored. This omission is surprising since his discussion of discipline in the first Critique is not only more extensive and expansive in scope than his other discussions but also predates them. The goal of this essay is to provide a comprehensive reading of the Discipline that emphasizes its systematic importance in the first (...) Critique. I argue that its goal is to establish a set of rules for the use of pure reason that, if followed, will mitigate and perhaps even eliminate our tendency to make judgments about supersensible objects. Since Kant's justification for these rules relies crucially on claims he has defended in the Doctrine of Elements, I argue further that, far from being a dispensable part of the Critique as commentators have tended to claim, the Discipline is, in fact, the culmination of Kant's critique of metaphysics. (shrink)

It is sometimes thought that the normative justification for responding to large-scale violations of human rights via the judicial appararatus of trial and punishment is undermined by the desirability of reconciliation between conflicting parties as part of the process of conflict resolution. I take there to be philosophical, as well as practical and psychological issues involved here: on some conceptions of punishment and reconciliation, the attitudes that they involve conflict with one another on rational grounds. But I shall argue that (...) there is a conception of political reconciliation available which does not involve forgiveness and this forms of reconciliation may be the best we can hope for in many conflicts. Reconciliation is nevertheless likely to require the expression of what Darrell Moellendorf has called 'political regret' and the denunciatory role aspect of punishment makes it particularly well-suited to this role. (shrink)

What is cruelty? How and why does it matter? What do the legal rejection of cruelty and the requirements of mercy entail? This essay asks these questions of Lucius Seneca, who first articulated an agent-based conception of cruelty in the context of punishment. The hypothesis is submitted that the answers to these questions offered in Seneca's De clementia constitute one of the turning points in the evolution of practical reason in law. I conclude, however, by arguing that even the mainstream (...) punitive practices of contemporary western societies fail to meet the modest imperatives of the rejection of cruelty and the unconditionality of mercy propounded by Seneca. (shrink)

Perhaps no one has written more extensively, more deeply, and more insightfully about determinism and freedom than Ted Honderich. His influence and legacy with regard to the problem of free will—or the determinism problem, as he prefers to frame it—looms large. In these comments I would like to focus on three main aspects of Honderich ’s work: his defense of determinism and its consequences for origination and moral responsibility; his concern that the truth of determinism threatens and restricts, but does (...) not eliminate, our life-hopes; and his attack on the traditional justifications for punishment. In many ways, I see my own defense of free will skepticism as the natural successor to Honderich ’s work. There are, however, some small differences between us. My goal in this paper is to clarify our areas of agreement and disagreement and to acknowledge my enormous debt to Ted. If I can also move him toward my own more optimistic brand of free will skepticism that would be great too. (shrink)

I argue that contemporary liberal theory cannot give a general justification for the institution or practice of punishment, i.e., a justification that would hold across a broad range of reasonably realistic conditions. I examine the general justifications offered by three prominent contemporary liberal theorists and show how their justifications fail in light of the possibility of an alternative to punishment. I argue that, because of their common commitments regarding the nature of justification, these theorists have decisive reasons to reject punishment (...) in favor of a non-punitive alternative. I demonstrate the possibility of this alternative by means of a careful examination of the nature of punishment, isolating one essential characteristic—the aim to impose suffering—and showing how this characteristic need not guide enforcement. There is logical space for a forceful and coercive, yet non-punitive method of enforcement. This fact poses difficulties for many classical and contemporary justifications of punishment, but it poses particularly crippling problems for general liberal justifications. (shrink)

Should the state punish its disadvantaged citizens who have committed crimes? Duff has recently argued that where disadvantage persists the state loses its authority to hold individuals to account and to punish for criminal wrongdoings. I here scrutinize Duff’s argument for the claim that social justice is a precondition for the legitimacy of state punishment. I sharpen an objection to Duff’s argument: with his framework, we seem unable to block the implausible conclusion that where disadvantage persists the state (...) lacks the authority to punish any citizen for any crime. I then set out an alternative line of argument in support of the claim that social deprivation can threaten the states legitimate punitive authority. I argue that a penal system must incorporate certain proportionality principles, and that these principles cannot both be met where citizens suffer from deprivation. (shrink)

In the Gorgias, Socrates argues that just punishment, though painful, benefits the unjust person by removing injustice from her soul. This paper argues that Socrates thinks the true judge (i) will never use corporal punishment, because such procedures do not remove injustice from the soul; (ii) will use refutations and rebukes as punishments that reveal and focus attention on psychological disorder (= injustice); and (iii) will use confiscation, exile, and death to remove external goods that facilitate unjust action.

Most readers believe that it is difficult, verging on the impossible, to extract concrete prescriptions from the ethics of Emmanuel Levinas. Although this view is largely correct, Levinas’ philosophy can, with some assistance, generate specific duties on the part of legal actors. In this paper, I argue that the fundamental premises of Levinas’ theory of justice can be used to construct a prohibition against capital punishment. After analyzing Levinas’ concepts of justice, responsibility, and interruption, I turn toward his scattered remarks (...) on legal institutions, arguing that they enable a sense of interruption specific to the legal domain. It is here that we find the conceptual resources most important to my Levinasian abolition. I argue that the interruption of legal justice by responsibility implies what I call the principle of revisability. The principle of revisability states a necessary condition of just legal institutions: To be just, legal institutions must ensure the possibility of revising any and all of their rules, principles, and judgments. From this, the argument against capital punishment easily follows. Execution is a legal act, perhaps the only legal act, that cannot be undone. An application of the principle of revisability to this fact leads to the conclusion that legal institutions cannot justly impose capital punishment. After defending these points at length, I conclude with some observations on the consequences of the principle of revisability for law more generally. (shrink)

The first part of this chapter defends the claim that the over-incarceration of disadvantaged social groups is unjust. Many arguments for penal reform are based on the unequal distribution of punishment, most notably disproportionate punishment of the poor and people of color. However, some philosophers use a noncomparative conception of desert to argue that the justice of punishment is independent of its distribution. On this view, which has significant influence in 14th Amendment jurisprudence, unequal punishment is not unjust. After detailing (...) the “noncomparativist challenge,” this chapter argues that Levinasian conceptions of desert enable a theory of penal justice according to which comparative considerations are essential. In so doing, it shows that the noncomparativist challenge can be met. The chapter concludes by considering whether Levinasian conceptions of desert and responsibility show members of socially advantaged groups to be more blameworthy for their wrongdoing than members of disadvantaged groups. (shrink)

Retributive theories of punishment argue that punishing a criminal for a crime she committed is sufficient reason for a justified and morally permissible punishment. But what about when the state gets lucky in its decision to punish? I argue that retributive theories of punishment are subject to “Gettier” style cases from epistemology. Such cases demonstrate that the state needs more than to just get lucky, and as these retributive theories of punishment stand, there is no anti-luck condition. I’ll argue (...) that Gettier-style cases demonstrate an impermissible instance of punishment, even though they meet the conditions of retributive theories of punishment. Retributive theories are, therefore, too weak. The safety condition from epistemology provides the anti-luck condition needed for permissible punishment. I argue that two forms of retributivism, rights-forfeiture and what I call standard retributivism, are both subject to Gettier-style cases. Unlike the literature on standards of proof, this paper argues that safety is a condition on punishment itself, i.e., in all nearby possible worlds, the accuser must correctly accuse the convicted for the crime they actually committed. (shrink)

Background Men with antisocial personality disorder show lifelong abnormalities in adaptive decision making guided by the weighing up of reward and punishment information. Among men with antisocial personality disorder, modifi cation of the behaviour of those with additional diagnoses of psychopathy seems particularly resistant to punishment. Methods We did a case-control functional MRI (fMRI) study in 50 men, of whom 12 were violent off enders with antisocial personality disorder and psychopathy, 20 were violent off enders with antisocial personality disorder but (...) not psychopathy, and 18 were healthy non-off enders. We used fMRI to measure brain activation associated with the representation of punishment or reward information during an event-related probabilistic response-reversal task, assessed with standard general linear-model-based analysis. Findings Offenders with antisocial personality disorder and psychopathy displayed discrete regions of increased activation in the posterior cingulate cortex and anterior insula in response to punished errors during the task reversal phase, and decreased activation to all correct rewarded responses in the superior temporal cortex. This finding was in contrast to results for off enders without psychopathy and healthy non-off enders. Interpretation Punishment prediction error signalling in off enders with antisocial personality disorder and psychopathy was highly atypical. This finding challenges the widely held view that such men are simply characterised by diminished neural sensitivity to punishment. Instead, this fi nding indicates altered organisation of the information processing system responsible for reinforcement learning and appropriate decision making. This difference between violent offenders with antisocial personality disorder with and without psychopathy has implications for the causes of these disorders and for treatment approaches. (shrink)

This article focuses on justified responses to “immoral” behavior and crimes committed by patients undergoing neuromodulation therapies. Such patients could be held morally responsible in the basic desert sense—the one that serves as a justification of severe practices such as backward‐looking moral outrage, condemnation, and legal punishment—as long as they possess certain compatibilist capabilities that have traditionally served as the quintessence of free will, that is, reasons‐responsiveness; attributability; answerability; the abilities to act in accordance with moral reasons, second‐order volitions, or (...) Deep Self. Recently leading compatibilist neuroethicists added the condition of not feeling alienated from desires motivating a person's action. This article argues against such attempts to determine conditions under which patients undergoing neuromodulation should be subject to negative reactive attitudes and legal punishment. Compatibilism should not be used to justify basic desert moral responsibility and legal punishment. Instead, a new way of thinking about the function of moral responsibility attribution is proposed for patients with neuromodulation. Their compatibilist capabilities should serve as important indicators for determining appropriate, forward‐looking courses of action, such as quarantining and restorative treatment, to ensure the public safety and well‐being of the patients. (shrink)

As philosophical and scientific arguments for free will skepticism continue to gain traction, we are likely to see a fundamental shift in the way people think about free will and moral responsibility. Such shifts raise important practical and existential concerns: What if we came to disbelieve in free will? What would this mean for our interpersonal relationships, society, morality, meaning, and the law? What would it do to our standing as human beings? Would it cause nihilism and despair as some (...) maintain or would it rather have a humanizing effect on our practices and policies, freeing us from the negative effects of belief in free will? In this chapter we consider the practical implications of free will skepticism and argue that life without free will and basic desert moral responsibility would not be as destructive as many people believe. We argue that prospects of finding meaning in life or of sustaining good interpersonal relationships, for example, would not be threatened. On treatment of criminals, we argue that although retributivism and severe punishment, such as the death penalty, would be ruled out, preventive detention and rehabilitation programs would still be justified. While we will touch on all these issues below, our focus will be primarily on this last issue. -/- We begin in section I by considering two different routes to free will skepticism. The first denies the causal efficacy of the types of willing required for free will and receives its contemporary impetus from pioneering work in neuroscience by Benjamin Libet, Daniel Wegner, and John-Dylan Haynes. The second, which is more common in the philosophical literature, does not deny the causal efficacy of the will but instead claims that whether this causal efficacy is deterministic or indeterministic, it does not achieve the level of control to count as free will by the standards of the historical debate. We argue that while there are compelling objections to the first route—e.g., Al Mele (2009), Eddy Nahmias (2002, 2011), and Neil Levy (2005)—the second route to free will skepticism remains intact. In section II we argue that free will skepticism allows for a workable morality, and, rather than negatively impacting our personal relationships and meaning in life, may well improve our well-being and our relationships to others since it would tend to eradicate an often destructive form of moral anger. In section III we argue that free will skepticism allows for adequate ways of responding to criminal behavior—in particular, incapacitation, rehabilitation, and alternation of relevant social conditions—and that these methods are both morally justified and sufficient for good social policy. We present and defend our own preferred model for dealing with dangerous criminals, an incapacitation account built on the right to self-protection analogous to the justification for quarantine (see Pereboom 2001, 2013, 2014a; Caruso 2016a), and we respond to recent objections to it by Michael Corrado and John Lemos. (shrink)

In this paper I explore some ideas inspired by Federico Picinali’s Justice In-Between: A Study of Intermediate Criminal Verdicts. Picinali makes a case for the introduction of intermediate options in criminal trials – verdicts with consequences that are harsher than an acquittal, but not so harsh as a conviction. From a certain perspective, the absence of intermediate options in criminal trials is puzzling – out of kilter with much of our everyday decision-making and, perhaps, with the recommendations of expected utility (...) theory. I will argue, however, that the lack of intermediate options is much less puzzling when put in the context of our ordinary practices of blame and non-legal punishment. (shrink)