Ideen om at lovbrytere fortjener straff, må legges til grunn dersom vi skal kunne forstå og begrunne strafferetten i Norge og i andre rettsstater. Av noen teoretikere har dette kravet til fortjent straff blitt forstått som et negativt krav, som setter en begrensning på oppnåelsen av straffens formål. Straffen må da være «ikke ufortjent». I denne artikkelen argumenterer jeg for at en slik forståelse av fortjenesteideen er utilstrekkelig. Straff som fortjent må ansees som et positivt, selvstendig formål for strafferetten. Artikkelen (...) ser på norsk rettspraksis og lovforarbeider, og drøfter hvorfor det i norsk strafferett må legges til grunn at det er verdifullt å oppfylle lovbryterens fortjeneste. (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)

This paper’s aim is to provide overview of the punishment of war crimes. It considers first the rationale of the law of war, the identification and scope of war crimes, and proceeds to consider the justification of punishing war crimes, arguing for a consequentialist view with side-constraints. It then considers the alternative of reconciliation.

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)

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

The paper investigates whether it is plausible to hold the late stage demented criminally responsible for past actions. The concern is based on the fact that policy makers in the United States and in Britain are starting to wonder what to do with prison inmates in the later stages of dementia who do not remember their crimes anymore. The problem has to be expected to become more urgent as the population ages and the number of dementia patients increases. This paper (...) argues that the late-stage demented should not be punished for past crimes. Applicable theories of punishment, especially theories with an appropriate expressivist, or communicative element, fail to justify the imprisonment of the late-stage demented. Further imprisonment would require a capacity for comprehension on the part of the punished, and, under certain narrowly specified conditions, even a capacity to be at least in principle capable of recalling the crime again. (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 purpose of this paper is to provide a justification of punishment which can be endorsed by free will skeptics, and which can also be defended against the "using persons as mere means" objection. Free will skeptics must reject retributivism, that is, the view that punishment is just because criminals deserve to suffer based on their actions. Retributivists often claim that theirs is the only justification on which punishment is constrained by desert, and suppose that non-retributive justifications must therefore endorse (...) treating the people punished as mere means to social ends. Retributivists typically presuppose a monolithic conception of desert: they assume that action-based desert is the only kind of desert. But there are also personhood-based desert claims, that is, desert claims which depend not on facts about our actions, but instead on the more abstract fact that we are persons. Since personhood-based desert claims do not depend on facts about our actions, they do not depend on moral responsibility, so free will skeptics can appeal to them just as well as retributivists. What people deserve based on the mere fact of their personhood is to be treated as they would rationally consent to be treated if all they had in view was the mere fact of their personhood. We can work out the implications of this view for punishment by developing a hypothetical consent justification in which we select principles of punishment in the Rawlsian original position, so long as we are careful not to smuggle in the retributivist assumption that it is under our control whether we end up as criminals or as law-abiding citizens once we raise the veil of ignorance. (shrink)

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)

The Laws of Armed Conflict require that war crimes be attributed to individuals who can be held responsible and be punished. Yet assigning responsibility for the actions of Lethal Autonomous Weapon...

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

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

Whether causing flash crashes in financial markets, purchasing illegal drugs, or running over pedestrians, AI is increasingly engaging in activity that would be criminal for a natural person, or even an artificial person like a corporation. We argue that criminal law falls short in cases where an AI causes certain types of harm and there are no practically or legally identifiable upstream criminal actors. This Article explores potential solutions to this problem, focusing on holding AI directly criminally liable where it (...) is acting autonomously and irreducibly. Conventional wisdom holds that punishing AI is incongruous with basic criminal law principles such as the capacity for culpability and the requirement of a guilty mind. -/- Drawing on analogies to corporate and strict criminal liability, as well as familiar imputation principles, we show how a coherent theoretical case can be constructed for AI punishment. AI punishment could result in general deterrence and expressive benefits, and it need not run afoul of negative limitations such as punishing in excess of culpability. Ultimately, however, punishing AI is not justified, because it might entail significant costs and it would certainly require radical legal changes. Modest changes to existing criminal laws that target persons, together with potentially expanded civil liability, are a better solution to AI crime. (shrink)

When it comes to the question of how much the state ought to punish a given offender, the standard understanding of the desert theory for centuries has been that it should give him a penalty proportionate to his offense, that is, an amount of punishment that fits the severity of his crime. In this article, part of a special issue on the geometry of desert, we maintain that a desert theorist is not conceptually or otherwise required to hold a proportionality (...) requirement. We show that there is logical space for at least two other, non-proportionate ways of meting out deserved penalties, and we also argue that they have important advantages relative to the dominant, proportionality approach. (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)

Gabriel Tarde, along with Durkheim and others, set the foundations for what is today a common-sense statement in social science: crime is a social phenomenon. However, the questions about what social is and what kind of social phenomenon crime is remain alive. Tarde’s writings have answers for both of these capital and interdependent problems and serve to renew our view of them. The aim of this article is to reconstruct Tarde’s definition of crime in terms of genus and specific difference, (...) exploring his criminology as a case of his general sociology. This procedure shows that Tarde succeeded in creating a comprehensive theory of crime and criminals founded not only on his most well-known concept, imitation, but also on his equally important concepts of invention, opposition, social logic and social teleology. For Tarde, crime is a complex phenomenon related to criminal inventions, criminal propagations, the production of penal laws, the execution of controls and punishments, and the collective reactions to all these. (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)

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

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

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)

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)

Free will skepticism maintains that what we do, and the way we are, is ultimately the result of factors beyond our control and because of this we are never morally responsible for our actions in the basic desert sense—the sense that would make us truly deserving of praise and blame. In recent years, a number of contemporary philosophers have advanced and defended versions of free will skepticism, including Derk Pereboom (2001, 2014), Galen Strawson (2010), Neil Levy (2011), Bruce Waller (2011, (...) 2015), and myself (Caruso 2012, 2013, forthcoming). Critics, however, often complain that adopting such views would have dire consequences for ourselves, society, morality, meaning, and the law. They fear, for instance, that relinquishing belief in free will and basic desert moral responsibility would leave us unable to adequately deal with criminal behavior, increase anti-social conduct, and undermine meaning in life. -/- In response, free will skeptics argue that life without free will and basic desert moral responsibility would not be as destructive as many people believe (see, e.g., Pereboom 2001, 2014; Waller 2011, 2015; Caruso 2016, forthcoming). According to optimistic skeptics, prospects of finding meaning in life or of sustaining good interpersonal relationships, for instance, would not be threatened. And although retributivism and severe punishment, such as the death penalty, would be ruled out, incapacitation and rehabilitation programs would still be justified (see Pereboom 2001, 2013, 2014; Levy 2012; Caruso 2016; Pereboom and Caruso, forthcoming). In this paper, I attempt to extend this general optimism about the practical implications of free will skepticism to the question of creativity. -/- In Section I, I spell out the question of creativity and explain why it’s relevant to the problem of free will. In Section II, I identify three different conceptions of creativity and explain the practical concerns critics have with free will skepticism. In Section III, I distinguish between three different conceptions of moral responsibility and argue that at least two of them are consistent with free will skepticism. I further contend that forward-looking accounts of moral responsibility, which are perfectly consistent with free will skepticism, can justify calling agents to account for immoral behavior as well as providing encouragement for creative activities since these are important for moral and creative formation and development. I conclude in Section IV by arguing that relinquishing belief in free will and basic desert would not mean the death of creativity or our sense of achievement since important and realistic conceptions of both remain in place. (shrink)

In this paper I discuss the nature of consent in general, and as it applies to Carlos Nino’s consensual theory of punishment. For Nino the criminal’s consent to change her legal-normative status is a form of implied consent. I distinguish three types of implied consent: 1) implied consent which is based on an operative convention (i.e. tacit consent); 2) implied consent where there is no operative convention; 3) “direct consent” to the legal-normative consequences of a proscribed act – this is (...) the consent which Nino employs. I argue that Nino’s conception of consent in crime exhibits many common features of “everyday” consent, which justify that it be classed as a form of (implied) consent. h us, Nino is right to claim that the consent in crime is similar to the consent in contracts and to the consent to assume a risk in tort law. (shrink)

The inability thesis holds that one’s culture determines behavior and can make one unable to comply with the law and therefore less deserving of punishment. Opponents of the thesis reject the view that humans are made physically unable to act certain ways by their cultural upbringing. The article seeks to help evaluate the inability thesis by pointing to a literature in cultural psychology and anthropology presenting empirical evidence of the influence of culture on behavior, and offering conceptual analysis of the (...) concept of determinism and its connection to moral culpability. Without conceding that culture never determines behavior, I argue that opponents of the inability thesis err in drawing a moral implication from this premise. What matters in formulating moral judgments about punishment are not the possibility but the reasonability of complying with the law. Cultural influences may make an action reasonable that without similar cultural influences would be unreasonable. (shrink)

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)

Does communicative retributivism necessarily negate capital punishment? My answer is no. I argue that there is a place, though a very limited and unsettled one, for capital punishment within the theoretical vision of communicative retributivism. The death penalty, when reserved for extravagantly evil murderers for the most heinous crimes, is justifiable by communicative retributive ideals. I argue that punishment as censure is a response to the preceding message sent by the offender through his criminal act. The gravity of punishment should (...) be commensurate to the preceding criminal message, so that the offender can face up to the nature and significance of his crime. All murders are not the same. To measure up to the most evil and humanity-degrading murderous message, capital punishment should be the counter-message. Next, I argue that capital punishment does not necessarily violate human dignity. The death penalty and torture may both disrupt human dignity, yet in distinct ways. The death penalty terminates life, the vessel that holds together autonomy, while torture directly assaults autonomy. Torture is never permissible as a form of punishment. But death penalty, when used only on the extravagant evildoers, is justifiable, as life is thoroughly degraded by his own evil act. Further, I argue that mercy is integral to communicative retributivists’ theory of capital punishment. (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)

I argue for two propositions. First, contrary to the common wisdom, we may justly punish individuals who are not morally responsible for their crimes. Psychopaths – individuals who lack the capacity to feel sympathy – help to prove this point. Scholars are increasingly arguing that psychopaths are not morally responsible for their behavior because they suffer from a neurological disorder that makes it impossible for them to understand, and therefore be motivated by, moral reasons. These same scholars then infer from (...) this conclusion that they must also lack criminal responsibility and therefore that our continuing to punish psychopaths for their crimes is unjust. My response is that this inference is entirely fallacious. -/- Criminal responsibility turns out to be quite distinct from moral responsibility. The two kinds of responsibility require very different conditions to be satisfied. In particular, criminal responsibility, unlike moral responsibility, does not require an agent be able to grasp and follow moral reasons; it requires only that the individual be able to grasp and follow criminal laws. Once this point is recognized, it becomes much easier to accept my thesis: while the subset of psychopaths who commit crimes are not morally responsible for their criminal behavior because they cannot understand moral reasons, they are still criminally responsible because they can understand what the consequences will be if they get caught. For this reason, even though I concede that psychopaths are not morally responsible for the crimes that they commit, our practice of punishing them for these crimes is still just. -/- Second, I argue that psychopathy is a mental illness and should be recognized as such. One reason that it should be recognized as a mental illness is simply because it is; it satisfies the main criteria for inclusion in the DSM-IV, the “bible” of mental disorders. The other reason is more practical than conceptual. It starts with two facts: the U.S. Supreme Court has decided that the preventive detention of any individual who is not a criminal suspect is not constitutional unless the individual is not only dangerous but also mentally ill; and psychopathy is not currently considered to be a mental illness. So, as things now stand, we cannot preventively commit dangerous psychopaths – that is, psychopaths who have clearly indicated that they will be committing serious crimes. Instead, we must wait for them to commit the crimes before we can lock them up. Unfortunately, this incarceration always comes too late for the victims. It would therefore be better if we could lock them up before they actually inflict any harm. Once again, then, I propose that the legal and psychological communities classify psychopathy as a mental illness. (shrink)

The prosecution of international crimes is a challenge both under international and domestic law. Taking the example of international criminal law (ICL) , the fullest realization of its objectives is influenced by many factors including; (a) the adoption of appropriate laws by states, (b) the adequacy of the ICL framework on definitions of crimes and principles of criminal responsibility, (c) the level of political control and involvement in decision making related to investigation, prosecution or extradition, (d) Problems with exclusion including (...) restrictions on the rights of victims with regard to the proceedings and to reparation, and (e) The application of provisions for amnesties and similar measures of impunity. -/- Over the years, the mandate of States under ICL has expanded. Key reforms under ICL and domestic laws have been led by the above mentioned concerns. The scope of state obligations, in particular, has been shaped by the standards adopted under the ICL framework including the "duty to prosecute" international crimes. The article discusses the normative significance of the "duty to prosecute". (shrink)

For generations, philosophers of punishment have sought to revise or combine established theories of punishment in a way that could reconcile the utilitarian aims of punishment with the demands of deontological justice. Victor Tadros’ recent work addresses the same problem, but answers it w it h an entirely original theory of punishment based on the duties criminals acquire by committing their crimes. The unexpected appearance of a new rationale for punishment has already inspired a robust dialogue between Tadros and his (...) critics on many of the individual claims that, linked together, comprise his argument. This critique focuses instead on Tadros’ theory as a whole and the methodology he uses to support it. It proposes that Tadros’ argumentative strategy can’t justify his rationale by virtue of (1) the extent and complexity of the moral reasoning he invokes, (2) the counter-intuitive results his theory produces in an array of specific cases, and (3) the superiority of a negative-retributivist account in which moral reasoning and intuitive judgments, and the principles and applications that f low from each, are coherent and mutually supportive. Victor Tadros responds to these arguments in an essay following this critique. (shrink)

India is a party to several international laws which speak of the duty to prosecute, investigate, and punish crimes. In light of India’s commitments to international law, the scope of its criminal laws appears to be failing on several counts. The following are a few general and specific recommendations for penal law reforms in India. These have been framed in light of several international developments, international laws, and relevant Indian laws and judgments. The recommendations concern the following themes: 1. gaps (...) in criminal law, 2. harmonization of standards 3. liabilities for derogations from fundamental duties (cultural heritage), and 4. a project for decolonization. (shrink)

[This download includes the table of contents and chapter 1.] -/- When we praise, blame, punish, or reward people for their actions, we are holding them responsible for what they have done. Common sense tells us that what makes human beings responsible has to do with their minds and, in particular, the relationship between their minds and their actions. Yet the empirical connection is not necessarily obvious. The “guilty mind” is a core concept of criminal law, but if a defendant (...) on trial for murder were found to have serious brain damage, which brain parts or processes would have to be damaged for him to be considered not responsible, or less responsible, for the crime? The authors argue that evidence from neuroscience and the other cognitive sciences can illuminate the nature of responsibility and agency. They go on to offer a novel and comprehensive neuroscientific theory of human responsibility. (shrink)

A surprisingly large number of scholars believe that (a) we are blameworthy, and therefore punishable, only for what we have control over; (b) we have control only over our actions and intentions, not the consequences of our actions; and therefore (c) if two agents perform the very same action (e.g., attempting to kill) with the very same intentions, then they are equally blameworthy and deserving of equal punishment – even if only one of them succeeds in killing. This paper argues (...) against these “equivalence theorists” that harmful consequences do make a moral difference, that the harm produced by the killer’s attempt retroactively makes her action more blameworthy, and therefore deserving of more punishment, than the failed attempter’s attempt. The primary argument for this “non-equivalence theory” is an analogy with gambling. Just as a gambler makes a deal with the casino to allow metaphysical luck to retroactively determine the “profit status” of her bet, so too the attempted killer makes a deal with “the casino of morality” to allow metaphysical luck to retroactively determine the moral status of her attempt. She makes the “moral deal” that if her attempt succeeds, her attempt was more blameworthy than if her attempt does not succeed. And it is the greater blameworthiness of the killer’s attempt that justifies our intuition that the killer should be punished more harshly than the failed attempter. (shrink)

This chapter explores whether chemical castration can be justified as a form of criminal punishment. The author argues that castration via the drug medroxyprogesterone acetate (MPA), or some similar drug, does not achieve the punishment aims of retribution, deterrence, or incapacitation, but might serve as punishment in the form of rehabilitative treatment. However, current U.S. chemical castration statutes are too broad to be justified as rehabilitative. The state is warranted in targeting psychological states in criminal defendants for rehabilitative treatment where (...) such states (a) act as a primary cause of a criminal offender’s crime and (b) give rise to extraordinary worries that the offender will recidivate. Current statutes qualify criminal offenders for castration who do not have overwhelming sexual urges or other psychological states causally related to their crime that may be treated with MPA. Thus, even assuming the efficacy of MPA, such statutes are unjustifiable because they apply chemical castration to offenders for whom castration will have no rehabilitative effect. (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)

The Human Rights Studies Programme, School of International Studies (JNU), in collaboration with the Centre for Inner Asian Studies, School of International Studies (JNU), and the Indian Law Institute (Delhi), organized a Human Rights Day Webinar on the Intersections of Human Rights and Criminal Law on December 9-10, 2021. Experts and young scholars from the field shared their insights and research on the webinar theme. The presentations were organized under four sessions, including Session I on Rights Jurisprudence and Criminal Law, (...) Session II on Proposals for Criminalisation and Decriminalisation, Session III on Crimes, Victims, and Punishments, and Session IV on Reforms in the Future. The Webinar was conceptualized keeping in view the responsibility of states under international human rights law to prohibit and punish for the protection of human rights and the redressal of violations. The obligations of States to prohibit and punish inform the development of criminal rules and procedures under different legal systems, leading to the near universalization of legislative frameworks, legal justifications, and punishments. In the working of international human rights institutions, the criminal laws adopted by States are an indicator or marker of the level of compliance of States with the international mandates. In recent years, the interface between the two fields, i.e., international human rights and domestic criminal laws, has sparked great jurisprudential, political, and constitutional debates in different parts of the world. Against this backdrop, the Webinar was organized on Human Rights Day to discuss the relevant issues. (shrink)

How can we know whether we are punishing the same corporation that committed some past crime? Though central to corporate criminal justice, legal theorists and philosophers have yet to address the basic question of how corporate identity persists through time. Simple cases, where crime and punishment are close in time and the corporation has changed little, can mislead us into thinking an answer is always easy to come by. The issue becomes more complicated when corporate criminals undergo any number of (...) transformations—rebranding, spinning-off a division, merging, changing ownership, changing management, swapping lines of business, etc. These changes are common among all corporations, including those trying to conceal or limit liability for past crimes. This article takes a first step toward developing a workable and philosophically satisfying theory of corporate personal identity and discusses its prospects for fulfilling the retributive, rehabilitative, and deterrent purposes of criminal law. (shrink)

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

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)

Should we use the same standard of proof to adjudicate guilt for murder and petty theft? Why not tailor the standard of proof to the crime? These relatively neglected questions cut to the heart of central issues in the philosophy of law. This paper scrutinises whether we ought to use the same standard for all criminal cases, in contrast with a flexible approach that uses different standards for different crimes. I reject consequentialist arguments for a radically flexible standard of proof, (...) instead defending a modestly flexible approach on non-consequentialist grounds. The system I defend is one on which we should impose a higher standard of proof for crimes that attract more severe punishments. This proposal, although apparently revisionary, accords with a plausible theory concerning the epistemology of legal judgments and the role they play in society. (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)

Piero Moraro argues that people who engage in civil disobedience do not have a pro tanto reason to accept punishment for breaking the law, although they do have a duty to undergo prosecution. This is because they have a duty to answer for their actions, and the state serves as an agent of the people by calling the lawbreaker to answer via prosecution. I argue that Moraro does not go far enough. Someone who engages in civil disobedience does not even (...) have to show up for the trial, provided that they answer for their actions adequately via some other means. This is because sometimes states are not agents of the people who can call lawbreakers to account, and even those states which are agents cannot demand that lawbreakers answer for their crimes in the form of a trial. (shrink)

When someone is prepunished, they are punished for a predicted crime they will or would commit. I argue that cases of prepunishment universally assumed to be merely hypothetical—including those in Philip K. Dick’s “The Minority Report”— are equivalent to some instances of the real-life punishment of attempt offenses. This conclusion puts pressure in two directions. If prepunishment is morally impermissible, as philosophers argue, then this calls for amendments to criminal justice theory and practice. At the same time, if prepunishment is (...) not imaginary, then the philosophers who reject it cannot claim that their view is supported by common sense. (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.

In some jurisdictions, the institutions of criminal justice may subject individuals who have committed crimes to preventive detention. By this, I mean detention of criminal offenders (i) who have already been punished to (or beyond) the point that no further punishment can be justified on general deterrent, retributive, restitutory, communicative or other backwardlooking grounds, (ii) for preventive purposes—that is, for the purposes of preventing the detained individual from engaging in further criminal or otherwise socially costly conduct. Preventive detention, thus understood, (...) shares many features with the quarantine measures sometimes employed in the context of infectious disease control. Both interventions involve imposing (usually severe) constraints on freedom of movement and association. Both interventions are standardly undeserved: in quarantine, the detained individual deserves no detention (or so I will, for the moment, assume), and in preventive detention, the individual has already endured any detention that can be justified by reference to desert. Both interventions are, in contrast to civil commitment under mental health legislation, normally imposed on more-or-less fully autonomous individuals. And both interventions are intended to reduce the risk that the constrained individual poses to the public. Yet despite these similarities, preventive detention and quarantine have received rather different moral report cards. (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)

The proliferation of criminal laws in different legal systems has made legal practitioners and scholars deliberate upon the present day relevance of old age principles and concepts. The maxim ignorantia juris non excusat (ignorantia juris hereinafter) also falls in this category. The application of criminal law is said to rest on the maxim ignorantia juris, meaning ignorance of law is no excuse. The application of the maxim has from time immemorial been defended on grounds of convenience, utility, and community interests. (...) At the same time it has been challenged on grounds of legality and morality. The application of the maximin criminal matters is secured through penal laws. These laws are further validated through judicial pronouncements. Penal statutes and judicial pronouncements have largely been the basis to determine the exceptions and scope of the maxim. -/- Breaking it down to a single case in hand, several factors come into picture including the nature of the crime in question, the mental state of the person accused, the conduct of the accused person, the objective or public utility of the criminal legislation or provision, and the reasons or justifications offered for its rigid or qualified application. The single case is viewed in light of the general provisions of criminal law of the legal system in which the case is being tried. The uniqueness of each case and the criminal statutes of legal systems make it both complex and conducive to generalize or conclude on the true import and application of the maxim ignorantia juris. (shrink)

Free will skepticism is the view that people never truly deserve to be praised, blamed, or punished for what they do. One challenge free will skeptics face is to explain how criminality could be dealt with given their skepticism. This paper critically examines the prospects of implementing legal changes concerning crime and punishment derived from the free will skeptical views developed by Derk Pereboom and Gregg Caruso. One central aspect of the changes their views require is a concern for reducing (...) the severity of current forms of punishment. The paper considers two strategies for pursuing such a reduction. By taking into account evidence from the psychology of belief in free will and desire to punish, it is argued that a strategy aiming at a reduction of people’s natural desire to punish criminals can be successful if capable of providing alternatives to current forms of punishment satisfying three properties: they must be less harmful than current forms of punishment, more effective in preventing crime, and incompatible with current forms of punishment. (shrink)

There are a number of important links and similarities between public health and safety. In this extended essay, Gregg D. Caruso defends and expands his public health-quarantine model, which is a non-retributive alternative for addressing criminal behavior that draws on the public health framework and prioritizes prevention and social justice. In developing his account, he explores the relationship between public health and safety, focusing on how social inequalities and systemic injustices affect health outcomes and crime rates, how poverty affects brain (...) development, how offenders often have pre-existing medical conditions (especially mental health issues), how involvement in the criminal justice system itself can lead to or worsen health and cognitive problems, how treatment and rehabilitation methods can best be employed to reduce recidivism and reintegrate offenders back into society, and how a public health approach could be successfully applied within the criminal justice system. Caruso's approach draws on research from the health sciences, social sciences, public policy, law, psychiatry, medical ethics, neuroscience, and philosophy, and he delivers a set of ethically defensible and practically workable proposals for implementing the public health-quarantine model. The essay begins by discussing recent empirical findings in psychology, neuroscience, and the social sciences that provide us with an increased understanding of the social and neurological determinants of health and criminal behavior. It then turns to Caruso's public health-quarantine model and argues that the model provides the most justified, humane, and effective approach for addressing criminal behavior. Caruso concludes by proposing a capability approach to social justice grounded in six key features of human well-being. He argues that we cannot successfully address concerns over public health and safety without simultaneously addressing issues of social justice—including the social determinants of health (SDH) and the social determinants of criminal behavior (SDCB)—and he recommends eight general policy proposals consistent with his model. (shrink)