It appears at least intuitively appropriate to claim that we owe it to victims to punish those who have wronged them. It also seems plausible to state that we owe it to society to punish those who have violated its norms. However, do we also owe punishment to perpetrators themselves? In other words, do those who commit crimes have a moral right to be punished? This work examines the sustainability of the right to be punished from the standpoint (...) of the two main theories of rights—the will and the interest conceptions. The right to be punished is shown to be largely indefensible on both accounts: on the will theory, the right to be punished conflicts with autonomy, and it can neither be claimed nor waived by a perpetrator; on the interest theory, a perpetrator’s interest in punishment, inasmuch as it exists, is not sufficient to ground a duty on the part of the state. (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)

Atheists are frequently demonized as arrogant intellectuals, antagonistic to religion, devoid of moral sentiments, advocates of an "anything goes" lifestyle. Now, in this revealing volume, nineteen leading philosophers open a window on the inner life of atheism, shattering these common stereotypes as they reveal how they came to turn away from religious belief. These highly engaging personal essays capture the marvelous diversity to be found among atheists, providing a portrait that will surprise most readers. Many of the authors, for example, (...) express great affection for particular religious traditions, even as they explain why they cannot, in good conscience, embrace them. None of the contributors dismiss religious belief as stupid or primitive, and several even express regret that they cannot, or can no longer, believe. Perhaps more important, in these reflective pieces, they offer fresh insight into some of the oldest and most difficult problems facing the human mind and spirit. For instance, if God is dead, is everything permitted? Philosophers without Gods demonstrates convincingly, with arguments that date back to Plato, that morality is independent of the existence of God. Indeed, every writer in this volume adamantly affirms the objectivity of right and wrong. Moreover, they contend that secular life can provide rewards as great and as rich as religious life. A naturalistic understanding of the human condition presents a set of challenges--to pursue our goals without illusions, to act morally without hope of reward--challenges that can impart a lasting value to finite and fragile human lives. Collectively, these essays highlight the richness of atheistic belief--not only as a valid alternative to religion, but as a profoundly fulfilling and moral way of life. "This Atheists R Us compilation differs markedly in tone from Hitchens and Dawkins. Excellent fare for Christian small groups whose members are genuinely interested in the arguments raised by atheists." --Christianity Today "Readable, personal, and provocative.... Contrary to the popular image, atheism isn't all rebellious trumpets and defiant drums.... Here we have all the varieties of unreligious experience, a full symphony of unbelief." --Free Inquiry "Compelling and sophisticated arguments that religious people ought to confront." --Tikkun. (shrink)

ABSTRACT One striking feature of On the Genealogy of Morals is how it is written. Nietzsche employs a literary style that provokes his readers' emotions. In Beyond Selflessness, Christopher Janaway argues that such a literary approach is integral to Nietzsche's philosophical goals. Feeling the emotions Nietzsche's style arouses is necessary for understanding the views he defends. I argue that Janaway's position is mistaken. The evidence at our disposal fails to establish that emotion is ever necessary for cognition. However, I maintain (...) that we do have good evidence for a slightly weaker claim. The emotionally sensitive person is epistemically better off than the cold and dispassionate person. There are some truths he or she will be more likely to believe and will have better reasons for believing. I conclude that Janaway is right to defend the philosophical importance of Nietzsche's literary writing style. His error is simply that he overstates the case. (shrink)

Its critics call it ‘feminism-as-crime-control’, or ‘Governance Feminism’, diagnosing it as a pernicious form of identity politics. Its advocates call it taking sexual violence seriously – by which they mean wielding the power of the state to ‘punish perpetrators’ and ‘protect vulnerable women’. Both sides agree that this approach follows from the radical feminist analysis of sexual violence most strikingly formulated by Catharine MacKinnon. The aim of this paper is to rethink the Governance Feminism debate by questioning this common presupposition. (...) I ask whether taking MacKinnon’s analysis of sexual violence seriously might, in fact, itself give us reason to be critical of political strategies that embrace the punitive state. By raising this question, I hope to persuade radical feminists to listen to critics of carceral politics rather than dismissing them as rape apologists, and critics of carceral politics to listen to radical feminists rather than dismissing them as state apologists. (shrink)

In this essay I develop and defend a theory of state punishment within a wider conception of political legitimacy. While many moral theories of punishment focus on what is deserved by criminals, I theorize punishment within the specific context of the state's relationship to its citizens. Central to my account is Rawls's “liberal principle of legitimacy,” which requires that all state coercion be justifiable to all citizens. I extend this idea to the justification of political coercion to criminals qua citizens. (...) I argue that the liberal principle of legitimacy implicitly requires states to respect the basic political rights of those who are guilty of committing crimes, thus prohibiting capital punishment. (shrink)

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)

In this article I spell out a conception of dignity grounded in African moral thinking that provides a plausible philosophical foundation for human rights, focusing on the particular human right not to be executed by the state. I first demonstrate that the South African Constitutional Court’s sub-Saharan explanations of why the death penalty is degrading all counterintuitively entail that using deadly force against aggressors is degrading as well. Then, I draw on one major strand of Afro-communitarian thought to (...) develop a novel conception of dignity as the view that what is special and inviolable about human nature is our capacity for harmonious relationships. I argue that a principle of respect for the dignity of such a capacity entails that the death penalty is an indignity but that deadly force in self- or other-defense need not be, and I contend that this African- inspired principle promises to do no worse than the more Western, Kantian principle of respect for autonomy at accounting for a broad range of human rights. (shrink)

In this paper, I discuss a distinctively non-paradigmatic instance of punishment: the punishment of non-citizens. I shall argue that the punishment of non-citizens presents considerable difficulties for one currently popular account of criminal punishment: Antony Duff’s communicative expressive theory of punishment. Duff presents his theory explicitly as an account of the punishment of citizens - and as I shall argue, this is not merely an incidental feature of his account. However, it is plausible that a general account of the (...) criminal law of the kind of idealized state that Duff focusses on will need to say something about how that law deals with non-citizens. In particular, I claim, it will need to provide a justification for punishing them. Because Duff's account says nothing about the punishment of non-citizens, it cannot do so. Furthermore, although Duff's more recent suggestion that non-citizens should be thought of as being guests in the state on whose territory they are present may provide for an account of their criminalization, it cannot easily be extended into an account that provides a justification for their punishment. (shrink)

Some philosophers defend legal punishment by appealing to a natural right to punish wrongdoers, a right people would have in a state of nature. Many of these philosophers argue that legal punishment can be justified by transferring this right to the state. I’ll argue that such a right may not be transferrable to the state because such a right may not survive the transition out of anarchy. A compelling reason for the natural right claim (...) – that in a state of nature there are few if any viable non-punitive enforcement options – isn’t obviously true in state contexts. (shrink)

Symposium on Christopher Bennet's The Apology Ritual. A Philosophical Theory of Punishment [Cambridge University Press, 2008].

In this chapter I use virtue theory to critique certain contemporary punishment practices. From the perspective of virtue theory, respect for rational agency indicates a respect for choice-making as the process by which we form dispositions which in turn give rise to further choices and action. To be a moral agent one must be able to act such that his or her actions deserve praise or blame; virtue theory thus demands that moral agents engage in rational choice-making as a means (...) to develop and exercise the character traits from which culpable action issues. With respect to criminal offenders, virtue theory indicates the state is obligated to recognize offenders’ right to form their own moral character via rational choice-making, even while under state supervision. I will argue below that punishment practices should limit choice-making only to the extent necessary to achieve the functions of punishment : whenever possible, punishment should preserve opportunities for the rational exercise of character and development of virtue. This means that even within a prison setting incarcerated offenders should be able to make some choices about their daily lives. Offenders should also be offered opportunities to develop virtuous traits through rehabilitative programming such as drug addiction treatment, educational programming, and job training. I will also argue that two contemporary punishment practices unjustly undermine an offender’s moral agency. The first is the overuse of isolation sanctions, which very severely limits offender choice-making. The second is chemical castration, which results in limiting an offender’s capacity to develop his character within a specific realm of choice-making. I conclude that these two punishments violate offenders’ moral agency, and that this violation cannot be justified by appeal to the aims of incapacitation, deterrence, retribution, and rehabilitation. (shrink)

When Dominique Strauss-Kahn, then head of the IMF, was arrested on charges of sexual assault arising from events that were alleged to have occurred during his stay in an up-market hotel in New York, a sizeable portion of French public opinion was outraged - not by the possibility that a well-connected and widely-admired politician had assaulted an immigrant hotel worker, but by the way in which the accused had been treated by the American authorities. I shall argue that in one (...) relatively minor respect, Strauss-Kahn’s defenders were correct. They were correct to argue that the parading of Strauss-Kahn before the press, in handcuffs - the so-called perp walk - constituted a form of punishment; and thus that it contravened the principle that criminal punishments should only be administered after a fair trial. So-called ‘expressive’ theorists of punishment hold that a form of harsh treatment can only constitute a form of punishment if it has an expressive role. Within the expressive family, we can distinguish between views on which the primary target of the communication to be the society of which either offender, or victim, or both are members—what I call ‘Denunciatory Views’, and views which take the principle target of penal communication to be the offender—such as Antony Duff’s Communicative View. I shall argue that on both a minimal account of punishment and on either kind of expressive view, ‘perp walks’ are a form of punishment. (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)

In this paper, I propose a new self-defense theory of punishment, the rights-protection theory. By appealing to the interest theory of right, I show that what we call “the right of self-defense” is actually composed of the right to protect our basic rights. The right of self-defense is not a single, self-standing right but a group of derivative rights justified by their contribution to the protection of the core, basic rights. Thus, (...) these rights of self-defense are both justified and constrained by the basic rights they are supposed to protect. I then explain how this theory responds to a common objection. Opponents argue that, to exercise the right of self-defense, some threat must be present. However, in the context of punishment, the threat has already taken effect or is already gone. Thus, the right of self-defense becomes irrelevant when we punish an offender. I show that this objection is based on an implausibly narrow conception of self-defense. A reasonable conception would allow us to exercise our right of self-defense when there is a present definite threat, a future definite threat, or a potential threat. Thus, we may still exercise our right of self-defense in the context of punishment. (shrink)

Many philosophers hold that punishment has an expressive dimension. Advocates of expressive theories have different views about what makes punishment expressive, what kinds of mental states and what kinds of claims are, or legitimately can be expressed in punishment, and to what kind of audience or recipients, if any, punishment might express whatever it expresses. I shall argue that in order to assess the plausibility of an expressivist approach to justifying punishment we need to pay careful attention to whether the (...) things which punishment is supposed to express are aimed at an audience. For the ability of any version of expressivism to withstand two important challenges, which I call the harsh treatment challenge’ and the ‘publicity challenge’ respectively. will depend on the way it answers them. The first of these challenges has received considerable discussion in the literature on expressive theories of punishment; the second considerably less. This is unfortunate. For careful consideration of the publicity challenge should lead us to favor a version of the expressive theory which has been under-discussed: the view on which punishment has an intended audience, and on which the audience is society at large, rather than—as on the most popular version of that view—the criminal. Furthermore, this view turns out to be better equipped to meet the harsh treatment challenge, and to be so precisely because of the way in which it meets the publicity challenge. (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)

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)

According to a rights forfeiture theory of punishment, liability to punishment hinges upon the notion that criminals forfeit their rights against hard treatment. In this paper, I assume the success of rights forfeiture theory in establishing the permissibility of punishment but aim to develop the view by considering how forfeited rights might be reclaimed. Built into the very notion of proportionate punishment is the idea that forfeited rights can be recovered. The interesting question is whether (...) punishment is the sole means for reclaiming forfeited rights. I argue for a pluralistic theory of rights reclamation, according to which, there are multiple ways by which a wrongdoer can recapture her forfeited rights. In particular, I argue that offering remorseful compensation is a valid means by which a wrongdoer might partially, or fully, reclaim her right against punishment. (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)

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)

One prominent argument in international law and religious thought for abolishing capital punishment is that it violates individuals’ right to life. Notably, this _right-to-life argument_ emerged from normative and legal frameworks that recognize deadly force against aggressors as justified when necessary to stop their unjust threat of grave harm. Can capital punishment be necessary in this sense—and thus justified defensive killing? If so, the right-to-life argument would have to admit certain exceptions where executions are justified. Drawing on work (...) by Hugo Bedau, I identify a thought experiment where executions are justified defensive killing but explain why they cannot be in our world. A state’s obligations to its prisoners include the _obligation to use nonlethal incapacitation_ (ONI), which applies as long as prisoners pose no imminent threat. ONI precludes executions for reasons of future dangerousness. By subjecting the right-to-life argument to closer scrutiny, this article ultimately places it on firmer ground. (shrink)

My dissertation develops a defense of a right to self-defense against the state. I set aside anarchist theories and grant for the sake of argument that the state has legitimate political authority. My goal is to convince non-anarchists that the right to self-defense extends to individuals against the state and the state’s agents. I argue that the right to self-defense is a fundamental, negative, claim right. The right to self-defense has these characteristics: (1) it is (...) fundamental, meaning that it is not derivative of any other right—it doesn’t appeal to any other right for its justification (2) it is negative, meaning that it simply requires others to refrain from certain action, and (3) it is a claim right, rather than a permission right, which means that it logically entails correlative duties on others. I also challenge some basic tenets of the orthodox account of justified defensive force, including the imminence, necessity, and proportionality conditions. My argument is a controversial one; many will resist the idea that an individual could be justified in self-defense against the state for a variety of reasons, ranging from thinking the idea is absurd or dangerous, to thinking that even if it is morally permissible, it is impractical. I aim to rebut these objections and to provide strong moral reasons to show why individuals do in fact have this right. -/- This research explores the relationship between one of our most basic rights—the right to self-defense—with our most basic political relationship—the relationship between the individual and the state. Part of my aim is to convince non-anarchist readers of philosophical claims that are usually only supported by anarchists. The reason this is important, beyond being academically interesting, is that if I am successful, it could allow a great majority of individuals to rethink their relationship with the state; not just at a basic level, but also in other applied areas such as gun rights, drug laws, and issues surrounding punishment and imprisonment. (shrink)

This article reviews an epochal change in international thinking about physical punishment of children from being a reasonable method of chastisement to one that is harmful to children and troubling to families. In addition, the article suggests shifts in thinking about physical punishment were originally pioneered as part and parcel of the dismantling of national laws granting fathers’ specific rights to admonish children under conventions of patria potestas. A comparative historical framework of analysis involving two case studies of Ireland (...) and Ghana illustrates non-unilinear pathways of international convergence towards the prohibition of physical punishment. The comparative historical analysis highlights the 1930s and 1940s as an era when Ireland began to reject patria potestas and religious or judicial rulings which allowed for children to be given ‘a good beating’ in family and school settings. However, from the same period, Ghana is seen to experience Christian remonstrations not to ‘spare the rod’ leading to the ‘conventional’ tradition of ‘this is how we do it here’. Two case studies serve to illustrate that banning physical punishment was less controversial in Ireland where allied traditions of patria potestas and disciplinarian Christian beliefs had lost their moral hegemony than in Ghana where such beliefs still held influence. The article concludes overall that normative campaigns against physical punishment of children emanate from a coherent paradigm of family policy where childcare, education, and well-being of children are embedded as everyday societal responsibilities rather than privatised or patriarchal familial obligations. The coherent model offers an alternative moral hegemony to neo-liberal and Janus-faced conceptualisations of good or ‘intact’ families versus ‘broken’ or ‘troubled’ families. (shrink)

Government’s use of imprisonment raises distinctive moral issues. Even if government has broad authority to make and to enforce law, government may not be entitled to use imprisonment as a punishment for all the criminal laws it is entitled to make. Indeed, there may be some serious crimes that it is wrong to punish with imprisonment, even if the conditions of imprisonment are humane and even if no adequate alternative punishments are available.

Thomas Hobbes’ theory of punishment plays a constitutive role in the Leviathan’s theory of state sovereignty. Despite this, Hobbes’ justification for punishment is widely found to be discrepant, weak, inconsistent, and contradictory. Two dominant tendencies in the scholarship attempt to stabilize the Leviathan’s justification for the state’s right to punish by either identifying it with the sovereign’s right to war or by elaborating a theory of authorization within the state. In contrast, by tracing the deployments of the metaphor (...) that Hobbes utilizes to evoke the state’s right to punish in the Leviathan (i.e. that of the nerves of the Leviathan) this paper finds that these two accounts can be made to be consistent with each other — thereby destabilizing the grounds upon which the theory of punishment can be founded. (shrink)

This book is an analysis and evaluation of torture. My take on torture is unique for four reasons. First, it provides a distinct analysis of what torture is. Second, it argues that on non-consequentialist grounds, specifically rights-based ones, torture is sometimes permissible. Third, it argues that torturers are not always vicious. Fourth, it argues that it is plausible that these conclusions apply to some real world cases. In short, it fills the following gap: it evaluates torture from a (...) class='Hi'>rights-based perspective and finds that in some cases it is permissible. My book is a unique philosophical exploration of torture. It combines a philosophical analysis of torture with a moral evaluation of it. The philosophical analysis of torture has not received a lot of attention. My analysis defends a minimal view of torture and one that distinguishes the analysis of the concept of torture from the moral evaluation of it. The resulting theory, the minimalist theory, differs noticeably from other analyses. My moral evaluation of torture sharply differs from the rest of the literature. The evaluation focuses on the non-consequentialist approach to morality, that is, it assumes that what makes an action right is not solely whether it brings about the best results. Using the central feature of non-consequentialism, moral rights, I argue that torture is justified in a number of theoretical contexts, including defense, punishment, and when the person to be tortured consents. I then look at the actual world and argue that it is plausible to think that there are real-world cases where torture is justified. My analysis also looks at whether torture is virtuous in an attempt to get at what intuitively repels us about torture. My analysis is not only the first look at the issue, but it also ties in with recent developments in virtue theory. As in the analysis of the permissibility of torture, I try to show that my findings with regard to virtue are not merely of theoretical interest, but are plausible given some real-world cases. (shrink)

I propose a theory of punishment that is unfamiliar in the West, according to which the state normally ought to have offenders reform their characters and compensate their victims in ways the offenders find burdensome, thereby disavowing the crime and tending to foster improved relationships between offenders, their victims, and the broader society. I begin by indicating how this theory draws on under-appreciated ideas about reconciliation from the Global South, and especially sub-Saharan Africa, and is distinct from the protection and (...) retribution theories that have dominated the Western philosophy of punishment for about 250 years. Then I argue that it neatly avoids objections to them and is prima facie plausible in its own right. I conclude that this reconciliation theory of state punishment should be taken seriously by philosophers of law and policy makers. (shrink)

Common-sense morality divides acts into those that are right and those that are wrong, but it thinks some wrong acts are more seriously wrong than others, for example murder than breaking a promise. If an act is more seriously wrong, you should feel more guilt about it and, other things equal, are more blameworthy for it and can deserve more punishment; more serious wrongs are also more to be avoided given empirical or moral uncertainty. This paper examines a number (...) of different views about what makes for more serious wrongness and considers the possibility that this may be different for acts that violate deontological vs. consequentialist duties. It also asks whether there’s a parallel concept that admits of degrees on the side of rightness, one of being, as we can say, more importantly right. (shrink)

Mark White has developed a provocative skepticism about antitrust law. I first argue against three claims that are essential to his argument: the state may legitimately constrain or punish only conduct that violates someone’s rights, the market’s purpose is coordinating and maximizing individual autonomy, and property rights should be completely insulated from democratic deliberation. I then sketch a case that persons might have a right to a competitive market. If so, antitrust law does deal with conduct that (...) violates rights. The main thread running throughout the article is that what counts as a legitimate exercise of property rights is dynamic, sensitive to various external conditions, and is the proper object of democratic deliberation. (shrink)

Injustice can undermine the standing states have to blame criminal offenders, and this raises a difficulty for a range of punishment theories that depend on a state's moral authority. When a state lacks the moral authority that flows from political legitimacy, its right to punish criminal lawbreakers cannot depend on a systematic claim about the legitimacy of the law. Instead, an unjust state is permitted to punish only criminal acts whose wrongness is established directly by morality, and only when (...) criminal guilt is established through legal procedures that meet minimal standards of fairness. These restrictions narrow the proper scope of criminal law and invalidate popular rationales for punishment that construe punishment as blame. (shrink)

Contrary to the widely accepted consensus, Christopher Heath Wellman argues that there are no pre-institutional judicial procedural rights. Thus commonly affirmed rights like the right to a fair trial cannot be assumed in the literature on punishment and legal philosophy as they usually are. Wellman canvasses and rejects a variety of grounds proposed for such rights. I answer his skepticism by proposing two novel grounds for procedural rights. First, a general right against unreasonable risk (...) of punishment grounds rights to an institutionalized system of punishment. Second, to complement and extend the first ground, I more controversially propose a right to provision of the robust good of security. People have a right to others' protecting for avoiding wrongfully harming them: when I take an action that is reasonably expected to threaten the protected interests of others, I must take appropriate care to avoid setting back those interests. Inflicting punishment on someone--intentionally harming them in response to a violation--is prima facie wrongful, so I can only count as taking appropriate care in punishing when I follow familiar procedures that reliably and redundantly test whether they are liable to such punishment, i.e. whether they have forfeited their right against punishment through a culpable act. (shrink)

Negotiation is mainly treated as a process through which counterparts try to satisfy their conflicting interests. This traditional, subjective approach focuses on the interests-based relation between subjects and the resources which are on the bargaining table; negotiation is viewed as a series of joint decisions regarding the relation of each subject to the negotiated resources. In this paper, we will attempt to outline an intersubjective perspective that focuses on the communication-based relation among subjects, a relation that is founded upon communicative (...) rationality mechanisms which are inherent in social activity. Much in contrast to the concept of interests which describe the relationship of each subject alone to the resources, we will use the concept of ?claim-rights? which are properly formed and validated only vis-à-vis negotiating partners and on the basis of the communication that develops among them. We will offer a step-by-step account of the creation of claim-rights and argue that their validation does not necessarily lie in the parties? interests, but in the communication mechanisms that induce consensus and result in mutually acceptable outcomes. (shrink)

Physicians in Islamic countries might be requested to participate in the Islamic legal code of qiṣāṣ, in which the victim or family has the right to an eye-for-an-eye retaliation. Qiṣāṣ is only used as a punishment in the case of murder or intentional physical injury. In situations such as throwing acid, the national legal system of some Islamic countries asks for assistance from physicians, because the punishment should be identical to the crime. The perpetrator could not be punished without (...) a physician’s participation, because there is no way to guarantee that the sentence would be carried out without inflicting more injury than the initial victim had suffered. By examining two cases of acid throwing, this paper discusses issues related to physicians’ participation in qiṣāṣ from the perspective of medical ethics and Islamic Shari’a law. From the standpoint of medical ethics, physicians’ participation in qiṣāṣ is not appropriate. First, qiṣāṣ is in sharp contrast to the Hippocratic Oath and other codes of medical ethics. Second, by physicians’ participation in qiṣāṣ, medical practices are being used improperly to carry out government mandates. Third, physician participation in activities that cause intentional harm to people destroys the trust between patients and physicians and may adversely affect the patient–physician relationship more generally. From the standpoint of Shari’a, there is no consensus among Muslim scholars whether qiṣāṣ should be performed on every occasion. We argue that disallowing physician involvement in qiṣāṣ is necessary from the perspectives of both medical ethics and Shari’a law. (shrink)

Thom Brooks criticizes utilitarian and retributive theories of punishment but argues that utilitarian and retributive goals can be incorporated into a coherent and unified theory of punitive restoration, according to which punishment is a means of reintegrating criminals into society and restoring rights. I point to some difficulties with Brooks’ criticisms of retributive and utilitarian theories, and argue that his theory of punitive restoration is not unified or coherent. I argue further that a theory attempting to capture the complex (...) set of rules and behaviors that constitute the practice of legal punishment cannot persuasively be unified and coherent: legitimate features of the practice advance goals and promote values that in some cases conflict. (shrink)

Published on Daily Philosophy 2021-10-18 Why do we have a criminal justice system? What could possibly justify the state punishing its citizens? Philosophers, scholars of law, politicians and others have proposed different justifications, one of them being retributivism: the view that we ought to give offenders the suffering that they deserve for harming others. However, intentionally harming other people and making them suffer is serious business. If we are to do this in the name of what’s right and good, (...) we better be very certain that what we do really is right and good. The so-called Epistemic Argument Against Retributivism calls this certainty into question. (shrink)

It is often said that human rights are the rights that people possess simply in virtue of being human – that is, in virtue of their intrinsic, dignity-defining common humanity. Yet, on closer inspection the human rights landscape doesn’t look so even. Once we bring perpetrators of human rights abuse and their victims into the picture, attributions of humanity to persons become unstable. In this essay, I trace the ways in which rights discourse ascribes variable (...) humanity to certain categories of people. I set the stage for my discussion of the human in relation to human rights by examining John Locke’s account of the justification for punishment. For Locke, in committing a crime one abrogates one’s humanity and forfeits one’s rights. Likewise, I argue, human rights discourse takes a scalar view of humanity. I consider victims of genocide who are dehumanized as helpless and passive, victims of state persecution who are super-humanized as righteously agentic, and perpetrators of genocide who are dehumanized as out-of-control beasts. In each case I use relevant testimony to argue that the scalar view of humanity is factually incorrect and morally deplorable. For genocide victims, I discuss testimony that Selma Leydesdorff gathered from women who survived the Srebrenica massacre. For a victim of persecution, I discuss Liao Yiwu’s memoire of his detention and imprisonment in China because of his artwork protesting the Tiananmen Square massacre. For perpetrators of genocide, I discuss testimony Jean Hatzfeld gathered from Hutu men who systematically murdered Tutsis in the Rwandan genocide. Finally, I apply my critique of dehumanized and super-humanized victims and dehumanized perpetrators to the problem of transnational trafficking in persons and argue that the view I advocate necessitates reforming immigration policy with respect to persons trafficked into forced labor. (shrink)

Philosophers have highlighted a dilemma for the criminal law. Unjust, racist policies in the United States have produced conditions in which the dispossessed are more likely to commit crime. This complicity undermines the standing of the state to blame their offenses. Nevertheless, the state has reason to punish those crimes in order to deter future offenses. Tommie Shelby proposes a way out of this dilemma. He separates the state’s right to condemn from its right to punish. I raise (...) doubts about Shelby’s proposed resolution. So long as punishment is widely and reasonably understood to condemn crime, Shelby’s proposal does not resolve the dilemma. Moreover, there is reason to think the blaming aspect of punishment plays a role in the justification of its hard treatment. I conclude by considering some other ways out of the dilemma, focusing especially on how the United States might take responsibility for its complicity. (shrink)

Capital punishment—the legally authorized killing of a criminal offender by an agent of the state for the commission of a crime—stands in special need of moral justification. This is because execution is a particularly severe punishment. Execution is different in kind from monetary and custodial penalties in an obvious way: execution causes the death of an offender. While fines and incarceration set back some of one’s interests, death eliminates the possibility of setting and pursuing ends. While fines and incarceration narrow (...) one’s routes to happiness, death eliminates its possibility. Not surprisingly, there is much debate about the moral permissibility of capital punishment. This entry maps the terrain of this debate. The first section discusses justifications of the death penalty as they appear in major theories of punishment. The second section surveys moral objections to execution that apply to most justifications. The third addresses procedural criticisms, which do not target the morality of execution so much as the justice of its implementation. (shrink)

Consider the reaction of Trayvon Martin’s family to the jury verdict. They were devastated that George Zimmerman, the defendant, was found not guilty of manslaughter or murder. Whatever the merits of this outcome, what does the Martin family’s emotional reaction mean? What does it say about criminal punishment – especially the reasons why we punish? Why did the Martin family want to see George Zimmerman go to jail? And why were – and are – they so upset that he didn’t? (...) -/- This Article will argue for three points. First, what fuels this kind of outrage is vengeance: the desire to see defendants like George Zimmerman be forced to “pay” for the harms that they needlessly and culpably inflict on others. While this point may seem obvious, it isn’t. Most people repudiate revenge and therefore the notion that it plays any role in the criminal justice system. -/- Second, this attitude toward revenge is misguided and needs to change. We need to recognize that vengeance not only does but should play a significant role in motivating criminal punishment. Our vengeful reactions to harmful crimes are not ugly or shameful; on the contrary, they manifest a deep valuation of victims and a bitter denunciation of individuals who actively renounce this valuation through their criminal behavior. -/- Third, these two points have significant implications for the two main theories of criminal punishment: “retributivism,” which says that criminals should be punished in order to give them their “just deserts,” and “consequentialism,” which says that criminals should be punished in order to bring about such good consequences as deterrence, incapacitation, and rehabilitation. Traditionally, these two theories have been at war with one another. But I will show how recognizing revenge as a motivation and justification for punishment can help to end this war and bring these two theories together. (shrink)

In this paper, I argue that one approach to normative political theory, namely contextualism, can benefit from a specific kind of historical inquiry, namely genealogy, because the latter provides a solution to a deep-seated problem for the former. This problem consists in a lack of critical distance and originates from the justificatory role that contextualist approaches attribute to contextual facts. I compare two approaches to genealogical reconstruction, namely the historiographical method pioneered by Foucault and the hybrid method of pragmatic genealogy (...) as practiced by Bernard Williams, arguing that they both ensure an increase in critical distance while preserving contextualism’s distinctiveness. I also show, however, that only the latter provides normative action-guidance and can thus assist the contextualist theorist in the crucial task of discerning how far certain contextual facts deserve their justificatory role. I prove this point by showing how a pragmatic genealogy of the practice of punishment can inform the contextualist’s reflection about the role this practice should play in a transitional scenario, i.e. in the set of circumstances societies go through in the aftermath of large-scale violence and human rights violations. (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)

Recently, David Boonin has put forward several objections to Carlos S. Nino's 'Consensual Theory of Punishment'. In this paper I will defend Nino against the 'explicit denial objection'. I will discuss whether Boonin's interpretation of Nino as a tacit consent theorist is right. I will argue that the offender's consent is neither tacit nor express, but a special category of implicit consent. Further, for Nino the legal-normative consequences of an act (of crime) are 'irrevocable', i.e. one cannot (expressly and (...) successfully) deny liability to them. I will suggest an explanation for Nino's irrevocability claim. (shrink)

The debate over whether ‘fair-play’ can serve as a justification for legal punishment has recently resumed with an exchange between Richard Dagger and Antony Duff. According to the fair-play theorist, criminals deserve punishment for breaking the law because in so doing the criminal upsets a fair distribution of benefits and burdens, and punishment rectifies this unfairness. Critics frequently level two charges against this idea. The first is that it often gives the wrong explanation of what makes crime deserving of (...) punishment, since the wrongfulness of murder is not primarily about unfairness. The second is that it implies that all crimes deserve the same degree of punishment, because all crimes create the same degree of unfairness. These objections are viewed as revealing fatal flaws in the theory. Although Dagger attempts to meet these objections by drawing on political theory, Duff responds that this still draws upon the wrong kind of resources for meeting these objections. This paper argues that these two objections rest on a crucial mistake that has been overlooked by both the defenders and critics of fair-play. This mistake results from failing to distinguish between what justifies punishment as a response to crime (which requires a common element to all crime) and what justifies attaching particular penalties to crimes (which requires making distinctions in the severity of crime). The arguments presented will give reasons to consider fair-play as a viable justification for legal punishment. (shrink)

This is a presentation of the utilitarian approach to punishment. It is meant for students. A note added in July, 2022 advises the reader about the author's current views on some topics in the paper. The first section discusses Bentham's psychological hedonism. The second briefly criticizes it. The third section explains abstractly how utilitarianism would determine of the right amount of punishment. The fourth section applies the theory to some cases, and brings out how utilitarianism could favor punishments more (...) or less severe than the lex talionis. (shrink)

This article examines how facial recognition technology reshapes the philosophical debate over the ethics of video surveillance. When video surveillance is augmented with facial recognition, the data collected is no longer anonymous, and the data can be aggregated to produce detailed psychological profiles. I argue that – as this non-anonymous data of people’s mundane activities is collected – unjust risks of harm are imposed upon individuals. In addition, this technology can be used to catalogue all who publicly participate in political, (...) religious, and socially stigmatised activities, and I argue that this would undermine central interests of liberal democracies. I examine the degree to which the interests of individuals and the societal interests of liberal democracies to maintain people’s obscurity while in public coincide with privacy interests, as popularly understood, and conclude that there is a practical need to articulate a novel right to obscurity to protect the interests of liberal democratic societies. (shrink)

Many moral philosophers have assumed that ordinary folk embrace moral objectivism. But, if so, why do folk embrace objectivism? One possibility is the pervasive connection between religion and morality in ordinary life. Some theorists contend that God is viewed as a divine guarantor of right and wrong, rendering morality universal and absolute. But is belief in God per se sufficient for moral objectivism? In this paper, we present original research exploring the connections between metaethics and particular conceptions of God (...) among religious participants. Study 1 shows that, when controlling for religiosity, age, and belief in God’s loving characteristics, it is belief in God’s punishing characteristics (specifically, the existence of Hell) that uniquely predicts rejection of moral relativism. Study 2 shows that followers of Abrahamic faiths are more likely to endorse moral objectivism when thinking of the Divine, regardless of loving or punishing characteristics. And Study 3 shows that priming for moral objectivism makes theists more likely to endorse God’s punishing characteristics. A general picture is suggested by these data. For Abrahamic theists, God’s particular characteristics are not germane to the question of whether his moral commandments are real and objective. And while theists strongly endorse God’s loving characteristics, focusing on the objective nature of morality can highlight God’s punishing nature, reminding theists that objective morality requires a divine guarantor of justice to enforce it. (shrink)

The “Right to be forgotten” lies at the heart of the infosphere debate. It embodies how mature information societies cope and deal with their memories. As such, it has become a defining issue of our time. Drawing on the author’s experience as a member of the Google Advisory panel, this paper discusses some of the salient points of the “Right to be forgotten” discourse, including: privacy vs. freedom of speech and availability vs. accessibility of information. It argues that, (...) while there should be no removal of past information, steps must be taken to ensure that this is not constantly, or unnecessarily, recalled. (shrink)

From a juridical standpoint, Kant ardently upholds the state's right to impose the death penalty in accordance with the law of retribution. At the same time, from an ethical standpoint, Kant maintains a strict proscription against suicide. The author proposes that this latter position is inconsistent with and undercuts the former. However, Kant's division between external (juridical) and internal (moral) lawgiving is an obstacle to any argument against Kant's endorsement of capital punishment based on his own disapprobation of suicide. (...) Nevertheless, Kant's basic conception of autonomy underlies both of these otherwise distinct forms of lawgiving, such that acts of suicide and capital punishment are rendered equally irrational within his overall framework. (shrink)

In this paper, I set out a version of the Forfeiture Theory of Punishment. Forfeiture Theory: Legal punishment is just or permissible because offenders forfeit their rights.On this account, offenders forfeit their rights because they infringed on someone’s rights. My strategy is to provide a version of the Forfeiture Theory and then to argue that it survives a number of initially intuitive seeming objections, most having their origins in the recent work of David Boonin.