The article discusses retributive justice and punitive restraint in response to the worst types of crime. I take the Breivik Case as a starting point. Anders Behring Breivik was sentenced to 21 years of preventive detention for killing 69 people, mainly youths, at Utøya and 8 people in Oslo on July 22nd, 2011. Retributivist theories as well as commonly held retributive intuitions suggest that much harsher punishment is required for such crimes. According to some retributivist theories, most notably (...) on the influential theories of Kant and Hegel, the death penalty is warranted for murderers like Breivik. This suggests that the rationale for punitive restraint in a case like the Breivik Case can only be found in forward- looking, consequentialist theories of punishment, or by adding to retributivist theories a side-constraint in the form of a principle of parsimony. However, I argue that if we look closer at the function of punishment in the retributivist theories of Kant and Hegel, they too imply a rationale for punitive restraint, even for such horrific crimes as here discussed. Against Kant and Hegel’s own views on the death penalty, I argue that their broader “freedom theories” of retributive justice do not imply the justice of the death penalty or life imprisonment. In the last part of the article, I explore differences in the concepts of freedom entailed by Kant and Hegel’s theories, and I relate these to some of the background factors relevant to the Breivik Case. (shrink)

Retributive theories of punishment hold that moral desert is a necessary and sufficient condition for punishment. This principle has been justified in light of rectifying a 'balance of justice' upset by wrongdoing. Many opposed to retributivism, such as Nussbaum, have argued such a ‘balance’ is nothing more than ‘magical’ thinking and retributivism is, in fact, positively harmful. On the contrary, I will argue that there is a compelling way to make sense of that intuition. The Chinese Neo-Confucian tradition and (...) medieval Latin theologian Thomas Aquinas hold that moral wrongs upset a normative order of relationships and, in this respect, disrupt the order that ought to exist in the human community. Despite criticisms that retributivism about punishment requires outlandish metaphysical assumptions, I therefore propose the theory remains plausible without any such appeal. (shrink)

We are living through an era of increased robotisation. Some authors have already begun to explore the impact of this robotisation on legal rules and practice. In doing so, many highlight potential liability gaps that might arise through robot misbehaviour. Although these gaps are interesting and socially significant, they do not exhaust the possible gaps that might be created by increased robotisation. In this article, I make the case for one of those alternative gaps: the retribution gap. This gap arises (...) from a mismatch between the human desire for retribution and the absence of appropriate subjects of retributive blame. I argue for the potential existence of this gap in an era of increased robotisation; suggest that it is much harder to plug this gap than it is to plug those thus far explored in the literature; and then highlight three important social implications of this gap. (shrink)

Robotization is an increasingly pervasive feature of our lives. Robots with high degrees of autonomy may cause harm, yet in sufciently complex systems neither the robots nor the human developers may be candidates for moral blame. John Danaher has recently argued that this may lead to a retribution gap, where the human desire for retribution faces a lack of appropriate subjects for retributive blame. The potential social and moral implications of a retribution gap are considerable. I argue that the (...) retributive intuitions that feed into retribution gaps are best understood as deontological intuitions. I apply a debunking argument for deontological intuitions in order to show that retributive intuitions cannot be used to justify retributive punishment in cases of robot harm without clear candidates for blame. The fundamental moral question thus becomes what we ought to do with these retributive intuitions, given that they do not justify retribution. I draw a parallel from recent work on implicit biases to make a case for taking moral responsibility for retributive intuitions. In the same way that we can exert some form of control over our unwanted implicit biases, we can and should do so for unjustifed retributive intuitions in cases of robot harm. (shrink)

Critical analysis of wide variety of conceptions and justifications of retribution and punishment. Emphasis is on pivotal role of condemnation.

It is not usually morally permissible to desire the suffering of another person, or to act so as to satisfy this desire; that is, to act with the aim of bringing about suffering. If the retributive emotions, and the retributive responses of which they are a part, are morally permitted or even required, we will need to see what is distinctive about them. One line of argument in this paper is for the conclusion that a retributive desire (...) for the suffering of the wrong-doer, and the aim to bring this about, can (contra recent arguments from Hanna 2008) be morally justified. -/- It has been suggested that by reflecting on the role of the retributive emotions in interpersonal relationships, and the alleged legitimacy of the aim for the suffering of the wrong-doer within them, support can be garnered for retributive practices of punishment by the state (Duff 1986 and 2001, Bennett 2002 and 2003). The conclusion of the second line of argument in the paper is that whilst the retributive responses can permissibly aim at suffering, the way in which this is so in interpersonal relationships cannot provide support for retributive state punishment. (shrink)

Within the United States, the most prominent justification for criminal punishment is retributivism. This retributivist justification for punishment maintains that punishment of a wrongdoer is justified for the reason that she deserves something bad to happen to her just because she has knowingly done wrong—this could include pain, deprivation, or death. For the retributivist, it is the basic desert attached to the criminal’s immoral action alone that provides the justification for punishment. This means that the retributivist position is not reducible (...) to consequentialist considerations nor in justifying punishment does it appeal to wider goods such as the safety of society or the moral improvement of those being punished. A number of sentencing guidelines in the U.S. have adopted desert as their distributive principle, and it is increasingly given deference in the “purposes” section of state criminal codes, where it can be the guiding principle in the interpretation and application of the code’s provisions. Indeed, the American Law Institute recently revised the Model Penal Code so as to set desert as the official dominate principle for sentencing. And courts have identified desert as the guiding principle in a variety of contexts, as with the Supreme Court’s enthroning retributivism as the “primary justification for the death penalty.” While retributivism provides one of the main sources of justification for punishment within the criminal justice system, there are good philosophical and practical reasons for rejecting it. One such reason is that it is unclear that agents truly deserve to suffer for the wrongs they have done in the sense required by retributivism. In the first section, I explore the retributivist justification of punishment and explain why it is inconsistent with free will skepticism. In the second section, I then argue that even if one is not convinced by the arguments for free will skepticism, there remains a strong epistemic argument against causing harm on retributivist grounds that undermines both libertarian and compatibilist attempts to justify it. I maintain that this argument provides sufficient reason for rejecting the retributive justification of criminal punishment. I conclude in the third section by briefly sketching my public health-quarantine model, a non-retributive alternative for addressing criminal behavior that draws on the public health framework and prioritizes prevention and social justice. I argue that the model is not only consistent with free will skepticism and the epistemic argument against retributivism, it also provides the most justified, humane, and effective way of dealing with criminal behavior. (shrink)

Recent empirical work suggests that emotions are responsible for anti-consequentialist intuitions. For instance, anger places value on actions of revenge and retribution, value not derived from the consequences of these actions. As a result, it contributes to the development of retributive intuitions. I argue that if anger evolved to produce these retributive intuitions because of their biological consequences, then these intuitions are not a good indicator that punishment has value apart from its consequences. This severs the evidential connection (...) between retributive intuitions and the retributive value of punishment. This argument may generalize to other deontological intuitions and theories. (shrink)

The following essay responds to a draft article that criticises the theory of libertarian restitution in “Libertarian Rectification: Restitution, Retribution, and the Risk-Multiplier” (LR). The article was freely available to internet search engines. Hence, it seems fair and useful to reply to these very welcome objective criticisms. It is not intellectually relevant that its author might subsequently and subjectively have thought better of them, possibly as a result of the earlier version of this reply. Generally, the article misconstrues the position (...) on retribution in LR. Eventually, it makes apparent qualifications to its own position such that there does not seem to be any clear theoretical difference between the two on the central disputed issue. LR’s position is to explain and defend only the non-normative theory of libertarian restitution: full restoration or compensation to the damaged (initiatedly imposed on) party. But it is argued that this can include a retributive aspect if that is what the victim prefers. Moreover, such restitution will tend to act as a deterrent that maximises both overall interpersonal liberty (theorised as no initiated imposed costs) and human welfare (theorised as preference satisfaction). (shrink)

Libertarians typically object to having the state deal with law and order for several general reasons: it is inefficient; it is carried out at the expense of taxpayers; and it punishes so-called victimless crimes. Exactly what the observance of liberty implies with respect to the treatment of tortfeasors and criminals is more controversial among libertarians. A pure theory of libertarian restitution and retribution is mainly what is attempted here, without becoming involved in general moral anti-state arguments. However, the pure theory (...) alone will raise practical problems that require immediate response if the theory is to appear at all plausible. (shrink)

Within the United States, the most prominent justification for criminal punishment is retributivism. This retributivist justification for punishment maintains that punishment of a wrongdoer is justified for the reason that she deserves something bad to happen to her just because she has knowingly done wrong—this could include pain, deprivation, or death. For the retributivist, it is the basic desert attached to the criminal’s immoral action alone that provides the justification for punishment. This means that the retributivist position is not reducible (...) to consequentialist considerations nor in justifying punishment does it appeal to wider goods such as the safety of society or the moral improvement of those being punished. A number of sentencing guidelines in the U.S. have adopted desert as their distributive principle, and it is increasingly given deference in the “purposes” section of state criminal codes, where it can be the guiding principle in the interpretation and application of the code’s provisions. Indeed, the American Law Institute recently revised the Model Penal Code so as to set desert as the official dominate principle for sentencing. And courts have identified desert as the guiding principle in a variety of contexts, as with the Supreme Court’s enthroning retributivism as the “primary justification for the death penalty.” While retributivism provides one of the main sources of justification for punishment within the criminal justice system, there are good philosophical and practical reasons for rejecting it. One such reason is that it is unclear that agents truly deserve to suffer for the wrongs they have done in the sense required by retributivism. In the first section, I explore the retributivist justification of punishment and explain why it is inconsistent with free will skepticism. In the second section, I then argue that even if one is not convinced by the arguments for free will skepticism, there remains a strong epistemic argument against causing harm on retributivist grounds that undermines both libertarian and compatibilist attempts to justify it. I maintain that this argument provides sufficient reason for rejecting the retributive justification of criminal punishment. I conclude in the third section by briefly sketching my public health-quarantine model, a non-retributive alternative for addressing criminal behavior that draws on the public health framework and prioritizes prevention and social justice. I argue that the model is not only consistent with free will skepticism and the epistemic argument against retributivism, it also provides the most justified, humane, and effective way of dealing with criminal behavior. (shrink)

In fairy tales, villains usually come to a bad end, snared in a trap of their own making, or visited with a disaster nicely suited to their particular villainy. Read a story of this kind to children and you will be struck by the profound satisfaction with which this predictable of events is greeted. Yet, if children cheer when the villain is done in, they are just as satisfied when the hero manages to get the villain by the throat but (...) takes pity and spares him. These tales of retribution and mercy, even reduced to their barest bones, seem to have an intrinsic significance; they strike some inner chord, resonate with something fundamental in our inarticulate understanding of the world, reveal something about the basic make-up of the world. This is not to suggest that they are 'realistic' in the ordinary sense. They do not tell us what 'really happens' in the world of experience, where the villain all too often flourishes and the innocent are trampled underfoot. Rather, fairy tales reveal to us the injustice of the human world by testifying to the true nature of justice. If we did not know that villains ought to get their comeuppance, we would have no reason to think it wrong that they often escape to enjoy their spoils. Tales of retribution and mercy speak of the reality of a world beyond the world of everyday experience; so doing, they show the world of experience in its true light. In the best sense of the word, they are 'myths': stories that, even when told in their simplest form, carry a profound inner significance. (shrink)

This chapter as the whole book are a result of a Globethics conference in March 2018 at the Catholic University of East Africa (CUEA) in Kenya, focused on the integration of Ethics in Higher Education. The book captures the potential for sharing of knowledge, and triggering interdisciplinary collaboration and research across a wide variety of issues ranging from research practice, religion, entrepreneurship, leadership, fundraising and corruption. While some of the chapters focus on the understanding of ethics and its relationship with (...) the various other aspects of life, others concentrate on the methods and strategies of effectively teaching ethics. Our chapter is concerned by the ways research practices and the value of integrity might be at risk, in very limited situations. We have good hope that responsible answers and proportionate reason-based actions in confronting some of these risks - as with plagiarism - can protect the giving virtues necessary for dynamical and effective research processes, which are all ultimately built on the value of trust. (shrink)

In this paper I examine John Rawls’s understanding of desert. Against Samuel Scheffler, I maintain that the reasons underlying Rawls’s rejection of the traditional view of distributive desert in A Theory of Justice also commit him to rejecting the traditional view of retributive desert. Unlike Rawls’s critics, however, I view this commitment in a positive light. I also argue that Rawls’s later work commits him to rejecting retributivism as a public justification for punishment.

"An eye for an eye will make the whole world blind." This quote, often attributed to Gandhi, suggests the illegitimacy of the retributive urge. On the other hand, many feel a strong intuitive sense that "justice must be served" and that violators of justice must be fittingly punished. In this paper I examine the urge for retributive justice and argue that, at its base, it is rooted in a profound desire to have a wrongdoer see the nature of (...) his or her wrongdoing, with the ultimate aim of inducing the repentance and reformation needed for a genuine healing of relationship. In this way, the urge for retributive justice may be seen as having, as its true end, the restoration of wholesome relations between wrongdoer and wronged. (shrink)

Anger is often an appropriate reaction to harms and injustices, but is it a politically beneficial one? Martha Nussbaum (Journal of the American Philosophical Association 1 (1), 41–56, 2015, Anger and Forgiveness. Oxford University Press, 2016) has argued that, although anger is useful in initially recruiting agents for action, anger is typically counterproductive to securing the political aims of those harmed. After the initial shockwave of outrage, Nussbaum argues that to be effective at enacting positive social change, groups and individuals (...) alike, must move quickly out of the state of anger. Feminist theorists (Frye, The Politics of Reality. Crossing Press, 1983; Lorde, 1997; Narayan, Hypatia 3 (2): 31–48, 1988) on the other hand have for long highlighted the efficacy of anger, as well as its moral and epistemic value, in fighting against the oppressive status quo. It might be thought therefore that for political action to be effective, a continued state of anger is preferable. Protestors must after all create and sustain a sense of moral obligation and justice. A main way of doing so is to promote successive moral shocks that trigger outrage (Jasper, Emotion Review 6 (3): 208–213, 2014). I present a novel, empirically informed defense of anger’s efficacy in political action. Nussbaum holds a traditional view on the nature of anger, inherited from Aristotle and the Stoics, which holds that anger constitutively involves a desire for retribution. The view that anger is counterproductive falls out of this and is dominant in academic work as well as in our personal and political lives. Based on work in social psychology, I argue that we need to reconsider this. In doing so, I highlight anger’s aim for recognition, rather than retribution, as key. Furthermore, I uncover conditions for anger’s political efficacy, as well as reasons for why the traditional view of anger has been so pervasive. (shrink)

The standard of proof in criminal trials in many liberal democracies is proof beyond a reasonable doubt, the BARD standard. It is customary to describe it, when putting a number on it, as requiring that the fact finder be at least 90% certain, after considering the evidence, that the defendant is guilty. Strikingly, no good reason has yet been offered in defense of using that standard. A number of non-consequentialist justifications that aim to support an even higher standard have been (...) offered; all are morally unsound. Meanwhile, consequentialist arguments plausibly support a substantially lower standard — in some cases so low as to undermine the idea that punishment is what is at stake. In this paper, I offer a new retributive justification that supports excluding the instrumental benefits of punishment from the balance that sets the standard. The resulting balance supports a standard arguably in the ballpark of the customary understanding of BARD: a standard requiring that the fact finder have a high, though not maximally high, degree of confidence that the defendant is guilty. (shrink)

The settlements surrounding the Exxon Valdez oil spill prove to be an interesting case of retributive and corrective justice in regard to damage to the ecology of the commons, particularly in light of the recent Deepwater Horizon spill in the Gulf of Mexico. After reviewing the harm done to the ecology of Prince William Sound by the spill, and an account of Exxon Corporation’s responsibility, I examine the details of the litigation, particularly the Supreme Court decision in this matter. (...) In the early settlement, there is a clear disproportion between damage awards to plaintiffs representing the current economic users of Prince William Sound versus the trustees for the Sound’s commons. I argue that the disproportion reveals not only a thoroughly economic understanding of ecological commons, but bias in the treatment of its current economic users, as opposed to an understanding of such ecologies as true commons shared over generations. I argue that such biases fail reasonable moral tests and do not stand up to common principles of retributive justice. I end by suggesting a legal maneuver to correct such tendencies. (shrink)

Strawson's view on punishment has been either neglected or recoiled from in contemporary scholarship on ‘Freedom and Resentment’ (FR). Strawson's alleged retributivism has made his view suspect and troublesome. In this article, we first argue, against the mainstream, that the punishment passage is an indispensable part of the main argument in FR (section 1) and elucidate in what sense Strawson can be called ‘a retributivist’ (section 2). We then elaborate our own hypothesis of symbolic retribution to explain the continuum between (...) moral reactive attitudes and punishment that Strawson only adumbrates (section 3). After this justification of the punitive response to wrongdoing, we compare and contrast our specific kind of retributivist hypothesis with other positions in the so-called ‘new retributivism’ (section 4). Our hypothesis differs from other subvarieties of expressive retributivism in putting centre stage the idea of punishment as taking up a reverential stance towards the victim. (shrink)

I address the question, ‘Should a retributivist support an entrapment defense and if so, under what circumstances?’, by considering the culpability of entrapped defendants. An entrapment defense is invoked by defendants who claim they violated the law because they were enticed to crime by the police and would not otherwise have committed the crime. There are different rationales for the defense: people who are normally law abiding, and who are not predisposed to commit crimes, do not commit crimes merely when (...) the opportunity is presented, without further coaxing—only criminals do—and so spending resources to entice and then punish such “false criminals” is wasteful from a utilitarian perspective. Several theorists assume retributivists must oppose the defense: entrapped defendants have broken the law and, according to one version of retributivism (Mabbott), this itself might warrant punishment; they are still culpable although they were enticed, because succumbing to temptation is no defense—there is no ‘private entrapment defense’; and to not punish the non-predisposed who are enticed to crime by government, while punishing those who are predisposed, is wrongly to assert that a person’s culpability hinges on their predisposition and wrongly to punish someone not for their present conduct but for their character or past actions. I explore some reasons why a retributivist can support an entrapment defense. First, entrapped defendants may be less culpable than the privately enticed insofar as they do not cause harm. As police control the situation, no actual harm is caused, and whether one actually causes harm may bear on one’s culpability; and if one’s predisposition was weak and required substantial police coaxing to be triggered, we might say that the police action and not the defendant caused the crime in the relevant sense. Second, applying Robert Nozick’s account of coercion in a novel way, I consider the argument that entrapped defendants may be less culpable insofar as their action was not fully voluntary, in that unlike in private enticement cases, they necessarily underestimate the probability of being caught before making their choice. (shrink)

Charles Murray describes himself as a libertarian, most notably in his short book, What it Means to be a Libertarian. He might more accurately have described himself as having libertarian tendencies. My reading of Simple Justice is that the views it espouses are far more traditionalist than libertarian. Neither traditionalist state-retribution nor modernist state-leniency is libertarian. Nor does either provide as just or efficient a response to crime as does libertarian restitution, including restitutive retribution. Here, I shall respond directly only (...) to Murray's views, rather than also deal with state-leniency. This is because I accept Murray's thesis, without endorsing his specific arguments for it, that state-leniency is disastrous as a response to crimes against persons and their justly acquired property. (shrink)

This is a semifinal draft of a forthcoming paper. Kant’s account of the pain of remorse involves a hybrid justification based on self-retribution, but constrained by forward-looking principles which say that we must channel remorse into improvement, and moderate its pain to avoid damaging our rational agency. Kant’s corpus also offers material for a revisionist but textually-grounded alternative account based on wrongdoers’ sympathy for the pain they cause. This account is based on the value of care, and has forward-looking constraints (...) much like Kant’s own account. Drawing on both Kant’s texts and recent work in empirical psychology, I argue that experiences of remorse which conform to the sympathetic account may fulfill Kant’s forward-looking goals better than those conforming to his own account. (shrink)

Thaddeus Metz defends the retributive theory of punishment against challenges mounted by some of the contributors to this collection. People, he thinks, ought to be censured in a way that is proportional to what they have done and for which they are responsible. Understanding does not conflict with judging. On the contrary, according to him, the more we understand, the better we are able to censure appropriately. Metz’s argument is Kantian insofar as he argues that ‘respect for persons [victims, (...) responsible wrongdoers and the community at large] requires condemning people proportionately to their responsible wrongdoing and hence that understanding a person merely indicates what would be proportionate, not that proportionality is unjustified’. His reason for thinking that Kantian respect requires retribution is that, as in non-retributive cases such as economic justice, compensatory justice, and justice in healthcare rationing, it requires imposing burdens on persons consequent to an awareness of their responsible choices. To use his slogan, ‘judging is apt because of understanding’. (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)

It is a common idea, and an element in many legal systems, that people can deserve punishment when they commit criminal (or immoral) actions. A standard philosophical objection to this retributivist idea about punishment is that if human choices and actions are determined by previous events and the laws of nature, then we are not free in the sense required to be morally responsible for our actions, and therefore cannot deserve blame or punishment. It has recently been suggested that this (...) argument can be backed up by neuroscience, since neuroscientific explanations of human behavior leave no room for non-determined free actions. In this thesis, an argument of this sort is discussed. According to this argument, that I call “the Revision Argument”, we should revise the legal system so that any retributivist justification of punishment is removed. I examine some objections to the Revision Argument according to which compatibilism about free will and responsibility is a morally acceptable basis of retributive punishment. I argue that these objections have difficulties in providing a plausible account of the relevant difference between people who deserve punishment for their actions and people who do not. Therefore, I argue that they fail to refute the conclusion of the Revision Argument. (shrink)

The recent trend toward privately owned and operated prisons calls attention to a variety of issues involving human rights. The growing number of corporatized correctional institutions is especially notable in the United States, but it is also a global phenomenon in many countries. The reasons cited for privatizing prisons are usually economic; the opportunity to outsource prison services enables local political leaders to save tax revenue, and local communities are promised a chance to create new jobs and bring in a (...) new industry. This article will address the history of prisons and the recent trend toward privatizing prisons and the perception of prisons as a for-profit enterprise. This new economic order brings with it a set of human rights concerns, including the relationship of for-profit prisons to increased numbers of incarcerated persons and increased sentences, racism and classism. The contractual relationship between political leaders and prison corporations will be addressed, noting that conditions of liability frequently mean that prison administrations lack motivation to safeguard the human rights of prisoners. The human rights issues often extend outside of the private prison itself, having a negative effect on the local community. (shrink)

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

This article constructively retrieves St. Anselm of Canterbury’s theory of retributive justice and provides a defense of what can be called the retributive model of hell. In the first part of this article, we develop the place of retributive punishment in Anselm’s thinking and discuss how and when retributive punishment is a good thing. In the second part, we apply Anselm’s thinking on retributive justice to the problem of hell and provide a defense of how (...) hell, defined as a state of receiving retributive, damnatory, and irreversible punishment, is good. We then address a series of objections. Despite some criticism that both Anselm and the retributive model of hell receive in the contemporary literature, Anselm’s account of retributive justice can make unique and constructive contributions to the contemporary discussion of hell; by retrieving and applying Anselm’s thought to the problem of hell, we intend to kill two birds with one stone. (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)

This chapter outlines six distinct reasons for rejecting retributivism, not the least of which is that it’s unclear that agents possess the kind of free will and moral responsibility needed to justify it. It then sketches a novel non-retributive alternative called the public health-quarantine model. The core idea of the model is that the right to harm in self-defense and defense of others justifies incapacitating the criminally dangerous with the minimum harm required for adequate protection. The model also draws (...) on the public health framework and prioritizes prevention and social justice. It is argued that not only does the public health-quarantine model offer a stark contrast to retributivism, it also provides a more humane, holistic, and effective approach to dealing with criminal behavior, one that is superior to both retributivism and other leading non-retributive alternatives. (shrink)

One of the most frequently voiced criticisms of free will skepticism is that it is unable to adequately deal with criminal behavior and that the responses it would permit as justified are insufficient for acceptable social policy. This concern is fueled by two factors. The first is that one of the most prominent justifications for punishing criminals, retributivism, is incompatible with free will skepticism. The second concern is that alternative justifications that are not ruled out by the skeptical view per (...) se face significant independent moral objections. Yet despite these concerns, I maintain that free will skepticism leaves intact other ways to respond to criminal behavior—in particular preventive detention, rehabilitation, and alteration of relevant social conditions—and that these methods are both morally justifiable and sufficient for good social policy. The position I defend is similar to Derk Pereboom’s, taking as its starting point his quarantine analogy, but it sets out to develop the quarantine model within a broader justificatory framework drawn from public health ethics. The resulting model—which I call the public health -quarantine model—provides a framework for justifying quarantine and criminal sanctions that is more humane than retributivism and preferable to other non-retributive alternatives. It also provides a broader approach to criminal behavior than Pereboom’s quarantine analogy does on its own. (shrink)

The orthodox view of anger takes desires for revenge or retribution to be central to the emotion. In this paper, I develop an empirically informed challenge to the retributive view of anger. In so doing, I argue that a distinct desire is central to anger: a desire for recognition. Desires for recognition aim at the targets of anger acknowledging the wrong they have committed, as opposed to aiming for their suffering. In light of the centrality of this desire for (...) recognition, I argue that the retributive view of anger should be abandoned. I consider and dismiss two types of moves that can be made on the part of a proponent of the orthodox view in response to my argument. I propose that a pluralist view, which allows for both retribution and recognition in anger, is to be preferred. (shrink)

This Element examines the concept of moral responsibility as it is used in contemporary philosophical debates and explores the justifiability of the moral practices associated with it, including moral praise/blame, retributive punishment, and the reactive attitudes of resentment and indignation. After identifying and discussing several different varieties of responsibility-including causal responsibility, take-charge responsibility, role responsibility, liability responsibility, and the kinds of responsibility associated with attributability, answerability, and accountability-it distinguishes between basic and non-basic desert conceptions of moral responsibility and considers (...) a number of skeptical arguments against each. It then outlines an alternative forward-looking account of moral responsibility grounded in non-desert-invoking desiderata such as protection, reconciliation, and moral formation. It concludes by addressing concerns about the practical implications of skepticism about desert-based moral responsibility and explains how optimistic skeptics can preserve most of what we care about when it comes to our interpersonal relationships, morality, and meaning in life. (shrink)

This article provides an exposition of restorative justice ethics, briefly explaining how and why its relational constitution enables it to comprise a theory of justice. I then describe how that relational constitution permits it to overlap, and work in tandem, with a wide range of religious and philosophical traditions. Numerous writings in religion and peacebuilding explore the roles that restorative justice has played in transitional justice contexts (Tutu 2000, Abu-Nimer 2001, de Gruchy 2002, Biggar 2003, Walker 2004, Villa-Vicencio 2009). Less (...) examined are cases in which restorative justice aims to provide a sustainable alternative to justice institutions and systems that generate substantial systemic injustices—what peace studies scholars describe as the inter-lacing of structural, cultural, and direct forms of violence (Springs 2015). In part two, then, I make the case that intervening in, and countering, structural and cultural violence, and systemic injustices, is conceptually intrinsic to restorative justice. Moreover, this opens possibilities for restorative justice to present sustainable alternatives to—and work to transform— structural violence occurring in retributive justice systems. Restorative justice can uniquely intervene in these ways, I argue, because of the form of moral and spiritual association its relational constitution engenders. As a test case, I briefly examine its capacity to intervene in the justice system that perhaps leads the world in the levels of structural and cultural violence—the United States. (shrink)

An apparently increasing number of philosophers take free will skepticism to pose a serious challenge to some of our practices. This must seem odd to many—why should anyone think that free will skepticism is relevant for our practices, when nobody seems to think that other canonical forms of philosophical skepticism are relevant for our practices? Part of the explanation may be epistemic, but here I focus on a metaethical explanation. Free will skepticism is special because it is compatible with ‘basic (...) moral reasons’—moral reasons acknowledged by all mainstream ethicists—and other minds and induction skepticism are not. One example is our reason not to intentionally harm others. Practical seriousness about other minds and induction skepticism undermines this reason, but practical seriousness about free will skepticism only undermines a potential overrider of this reason, that is, the reason of retribution. (shrink)

Retributivists are often thought to give 'deontological' theories of punishment, arguing that we should punish not for the beneficial consequences of doing so such as deterrence or incapacitation, but purely because justice demands it. Kant is often regarded as the paradigmatic retributivist. In some passages Kant does appear to give a deontological theory of punishment. For example, Kant insists that on an island where all the people were to leave the next day, forever dissolving and dispersing the community, the last (...) murderer in jail would have to have his execution carried out before the diaspora--justice demands it. In other passages, however, Kant defends punishment by appealing to its beneficial consequences. For example, after supposing that one man on a life raft pushes the other off to save his own life, Kant says that the former man should not be legally punished "because that punishment would have to be death, and it would be an absurd law that threatened death to one who refuses to die voluntarily in a dangerous situation." In this passage Kant's reasoning is that state laws, by threatening us with sanctions, are intended to prevent us from violating rights--the point of these laws is to deter. A law that imposes a punishment that could not deter is an absurd law. I argue that while Kant rejects consequentialism in thinking about moral actions, he distinguishes law and morality, and in the sphere of law, an action we take is to be justified by appealing to the good it yields. The point of legal punishment is to deter violations of rights and protect us from a state of nature in which no one's freedom is assured. Kant's theory of legal (as opposed to moral) punishment is not deontological. Nevertheless we can characterize his consequentialist theory of legal punishment as retributive in some sense. The paper then considers how the passages about punishment in which Kant invokes consequentialist thinking can be reconciled with other passages where he insists on punishment regardless of the consequences. (shrink)

Early Confucians viewed their world in an anthropocentric way – man was an embodiment of the cosmos and embodied the virtues of benevolence and righteousness. By the early medieval period (220–589), though, Confucian tales of virtuous animals flourished, betraying that Confucian attitudes towards animals had changed: the moral boundaries between animals and humans were fluid and beasts could serve as exemplars for humans. One of the few early medieval Confucian thinkers who spoke at length about animals was He Chengtian 何承天 (...) (370–447), a famed historian, astronomer, classical scholar, musicologist, and numerologist. His view of what separates humans from animals emerges from letters and essays he wrote attacking Buddhism. To refute the idea that humans and animals are both sentient beings, he espoused the old belief that people had a privileged place in the universe because of their moral excellence. Moreover, even though there was a gap between sages and ordinary humans, the latter were still ethically superior to beasts. In addition, for him, meateating was both a natural and sacred activity. Ironically, man’s benevolence and righteousness are most visible in the humane ways that Confucians wanted people to hunt and fish. He Chengtian’s opposition to Buddhism thus seems to have pushed him to a more extreme view of animals than his contemporaries. Nevertheless, his attempt to refute the idea of karmic retribution through an example taken from the animal kingdom betrays that he saw humans and non-human animals on a more equal footing than he cared to admit. (shrink)

This chapter has two goals. First, I will present an interpretation of Kant’s mature account of punishment, which includes a strong commitment to retributivism. Second, I will sketch a non-retributive, “ideal abolitionist” alternative, which appeals to a version of original position deliberation in which we choose the principles of punishment on the assumption that we are as likely to end up among the punished as we are to end up among those protected by the institution of punishment. This is (...) radical relative to Kant’s mature theory of punishment, but arguably it conforms better to the spirit of Kant’s first Critique remarks on imputation and punishment than his mature theory does. (shrink)

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)

Abstract: Justice is one of the core humanistic values and behavioral model in societal life. In the mythology of the ancient Roman civilization, Veritas refers to an ultimate moral ideal, whereas in Greek tradition fairness and equity essentially define Aequitas. Hence, political theory determining the inner interpretation of Veritas et Aequitas finds justice in truth as truth is just. While people are naturally inclined to justness, different cultures differently understand its internal norm of correctness and power of apprehending justice appears (...) as either human-created or what came into being itself. However, what is potentially ambiguous is whether it belongs to all or only to some. The often conflicting interpretations of justice made the study unfold the notion through the basic features of its transitional, retributive and distributive inner, show what the Original Position evolved into, reveal (in)conformity between fundaments of liberty, individual and general, and point to exaggerating complexity in defining the core of the notion. (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 modern Socratic dialogue, Socrates discusses the nature of punishment with a friend who believes that criminals are dealt with too softly. Socrates argues that retributive punishment is unjust.

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

It is conventional wisdom that appreciating the role of luck in our moral lives should make us more sparing with blame. But views of moral responsibility that allow luck to augment a person’s blameworthiness are in tension with this wisdom. I resolve this tension: our common moral luck partially generates a duty to forgo retributively blaming the blameworthy person at least sometimes. So, although luck can amplify the blame that a person deserves, luck also partially generates a duty not to (...) give the blameworthy person the retributive blame that he deserves at least sometimes. (shrink)

The volume aims to clarify and argue in support of the distinction between ideal and nonideal theory, as it is defined and used especially by (some of) the political philosophers working on the topic of social justice. In the process of trying to achieve this aim, the volume proposes, as well, a series of analyses concerning the other major problem raised by the ideal-nonideal distinction in political theory: the problem of the soundness of ideal theory as a method of specifying (...) the concept of justice and/or as a guide for political action, institutions and policies. Except for the foreword (which sets its scene and explorative framework) and the afterword (which concludes its argumentative approach and reminds some of its key explanations and observations), the volume is organized in three chapters. The first chapter discusses John Rawls` view on the distinction between ideal and nonideal theory. Its basic intention is to clarify, assess and synthetize the main claims and theses specific to the Rawlsian outlook. This analysis is followed, in the second chapter, by an investigation of the main post-Rawlsian contributions to the project of clarifying the ideal-nonideal distinction in theorizing justice. The third chapter rejects the claim according to which the distinction between ideal and nonideal theory is unjustified or, at least, not categorical. Based on its argumentative and explanatory undertaking, the book proposes the following simple definition of the ideal-nonideal distinction in theorizing justice: ideal theory is the theory aiming to offer an (adequate) answer to the question “what is social justice?”. In other words, ideal theory is the theory of defining or specifying the concept of social justice. Nonideal theory is, instead, the area of academic research interested in answering (and bound to answer) all the other imperative questions about justice and injustice: „is social justice an achievable ideal here and now?”, „which are the best policies in correcting or mitigating the current social injustices?”, „which is the most appropriate strategy for achieving the institutional design that best realizes the principles of justice?”, „in what way are the duties of justice affected when the others fail to conform to these duties?”, „which are the requirements of retributive justice?” or „which are the principles of rectificatory justice?”. (shrink)

In this study, we conducted large-scale experiments with novel descriptions of determinism. Our goal was to investigate the effects of desires for punishment and comprehension errors on people’s intuitions about free will and moral responsibility in deterministic scenarios. Previous research has acknowledged the influence of these factors, but their total effect has not been revealed. Using a large-scale survey of Japanese participants, we found that the failure to understand causal determination (intrusion) has limited effects relative to other factors and that (...) the conflation of determinism and epiphenomenalism (bypassing) has a significant influence, even when controlling for other variables. This leads to the increased prevalence of incompatibilist responses. Furthermore, our results demonstrated a close association between the attribution of free will/responsibility and retributive desire. While further research is needed to establish the causal relationship between these factors, this association is consistent with Cory Clark and colleagues' study that increased desire contributes to increased compatibilist responses and their claim that a definitive intuition about free will may be elusive. (shrink)

Adherents to reconciliation, restorative justice, and related approaches to dealing with social conflict are well known for seeking to minimize punishment, in favor of offenders hearing out victims, making an apology, and effecting compensation for wrongful harm as well as victims forgiving offenders and accepting their reintegration into society. In contrast, I maintain that social reconciliation and similar concepts in fact characteristically require punishment but do not require forgiveness. I argue that a reconciliatory response to crime that includes punitive disavowal (...) but not necessarily forgiveness is supported by an analogy with resolving two-person conflict and by relational facets of human dignity. I also specify a novel account of the type of penalty that is justified by reconciliation, namely, burdensome labor that is likely to foster moral reform on the part of wrongdoers and to compensate their victims, which would serve neither retributive nor deterrent functions. I illustrate this conception of punishment in contexts that include having cheated on an exam at a university, engaged in criminal behavior such as robbery, and committed atrocities during large-scale social conflict. (shrink)

Rules serve many important functions in society. One such function is to codify, and make public and enforceable, a society's desired prescriptions and proscriptions. This codification means that rules come with predefined punishments administered by third parties. We argue that when we look at how third parties punish rule violations, we see that rules and their punishments often serve dual functions. They support and help to maintain cooperation as it is usually theorized, but they also facilitate the domination of marginalized (...) others. We begin by reviewing literature on rules and third-party punishment, arguing that a great deal of punishment research has neglected to consider the unique power of codified rules. We also argue that by focusing on codified rules, it becomes clear that the enforcement of such rules via third-party punishment is often used to exert control, punish retributively, and oppress outgroup members. By challenging idealized theory of rules as facilitators of social harmony, we highlight their role in satisfying personal punishment motives, and facilitating discrimination in a way that is uniquely justifiable to those who enforce them. (shrink)

One of the most frequently voiced criticisms of free will skepticism is that it is unable to adequately deal with criminal behavior and that the responses it would permit as justified are insufficient for acceptable social policy. This concern is fueled by two factors. The first is that one of the most prominent justifications for punishing criminals, retributivism, is incompatible with free will skepticism. The second concern is that alternative justifications that are not ruled out by the skeptical view per (...) se face significant independent moral objections (Pereboom 2014: 153). Despite these concerns, I maintain that free will skepticism leaves intact other ways to respond to criminal behavior—in particular incapacitation, rehabilitation, and alteration of relevant social conditions—and that these methods are both morally justifiable and sufficient for good social policy. The position I defend is similar to Derk Pereboom’s (2001, 2013, 2014), taking as its starting point his quarantine analogy, but it sets out to develop the quarantine model within a broader justificatory framework drawn from public health ethics. The resulting model—which I call the public health-quarantine model (Caruso 2016, 2017a)—provides a framework for justifying quarantine and criminal sanctions that is more humane than retributivism and preferable to other non-retributive alternatives. It also provides a broader approach to criminal behavior than Pereboom’s quarantine analogy does on its own since it prioritizes prevention and social justice. -/- In Section 1, I begin by (very) briefly summarizing my arguments against free will and basic desert moral responsibility. In Section 2, I then introduce and defend my public health-quarantine model, which is a non-retributive alternative to criminal punishment that prioritizes prevention and social justice. In Sections 3 and 4, I take up and respond to two general objections to the public health-quarantine model. Since objections by Michael Corrado (2016), John Lemos (2016), Saul Smilanksy (2011, 2017), and Victor Tadros (2017) have been addressed in detail elsewhere (see Pereboom 2017a; Pereboom and Caruso 2018), I will here focus on objections that have not yet been addressed. In particular, I will respond to concerns about proportionality, human dignity, and victims’ rights. I will argue that each of these concerns can be met and that in the end the public health-quarantine model offers a superior alternative to retributive punishment and other non-retributive accounts. (shrink)