Punishment involves the intentional infliction of harm and suffering. Both of the most prominent families of justifications of punishment – retributivism and consequentialism – face several moral concerns that are hard to overcome. Moreover, the effectiveness of current criminal punishment methods in ensuring society’s safety is seriously undermined by empirical research. Thus, it appears to be a moral imperative for a modern and humane society to seek alternative means of administering justice. The special issue of Diametros “The (...) Abolition of Punishment: Is a Non-Punitive Criminal Justice System Ethically Justified?” was brought into life precisely to give the authors a platform for such progressive inquiries. And it is now safe to say that this platform has been put to excellent use, since Valerij Zisman, Alexander Stachurski, Giorgia Brucato, Perica Jovchevski, Sofia M. I. Jeppsson, Stephen G. Morris, Benjamin Vilhauer, John Lemos, Saul Smilansky, Elizabeth Shaw, Mirko Farina, Andrea Lavazza and Sergei Levin have presented such thought-provoking texts that they are bound to set the stage for debate in the years to come. This article is an introduction to this special issue and to the authors’ papers. (shrink)

In this chapter, I consider contemporary consequentialist theories of punishment. Consequentialist theories of punishment look to the consequences of punishment to justify the institution of punishment. Two types of theories fall into this category—teleology and aggregationism. I argue that teleology is implausible as it is based on a problematic assumption about the fundamental value of criminal punishment, and that aggregationism provides a more reasonable alternative. Aggregationism holds that punishment is morally justified because it is (...) an institution that helps society to aggregate important moral values. Several theories fall into this category, including general deterrence theories, specific deterrence theories, and preventionism. I critically evaluate these theories and argue that only one specific deterrence theory, namely, my rights-protection theory, provides the most reasonable consequentialist account of punishment. (shrink)

A deterrence theory of punishment holds that the institution of criminal punishment is morally justified because it serves to deter crime. Because the fear of external sanction is an important incentive in crime deterrence, the deterrence theory is often associated with the idea of severe, disproportionate punishment. An objection to this theory holds that hope of escape renders even the severest punishment inapt and irrelevant. -/- This article revisits the concept of deterrence and defend a more (...) plausible deterrence theory of punishment—the wide-scope deterrence theory. The wide-scope theory holds that we must make the best use of all the deterrence tools available, including both external and internal sanctions. Drawing on insights from the early Confucian tradition, the article develops a deep deterrence theory, which holds that the most important deterrence tool involves internal, not external, sanction. It describes how internal sanctions deter potential offenses and why relevant policies need not conflict with liberalism’s respect for neutrality. (shrink)

David Boonin has recently advanced several challenges to the self-defense justification of punishment. Boonin argues that the self-defense justification of punishment justifies punishing the innocent, justifies disproportionate punishment, cannot account for mitigating excuses, and does not justify intentionally harming offenders as we do when we punish them. In this paper, I argue that the self-defense justification, suitably understood, can avoid all of these problems. To help demonstrate the self-defense theory’s attraction, I also develop some contrasts between the (...) self-defense justification, Warren Quinn’s better known ‘auto-retaliator’ argument, and desert-based justifications of punishment. In sum, I show that the self-defense justification of punishment is more resilient than commonly supposed and deserves to be taken seriously as a justification of punishment. (shrink)

The current work investigated the extent to which children (N=171 6- to 8-year-olds) and adults (N = 94) view punishment as redemptive. In Study 1, children—but not adults—reported that “mean” individuals became “nicer” after one severe form of punishment (incarceration). Moreover, adults expected “nice” individuals’ moral character to worsen following punishment; however, we did not find that children expected such a change. Study 2 extended these findings by showing that children view “mean” individuals as becoming “nicer” following (...) both severe (incarceration) and relatively minor (time-out) punishments, suggesting that the pattern of results from Study 1 generalizes across punishment types. Together, these studies indicate that chil- dren—but not adults—may view punishment as a vehicle for redemption. (shrink)

Both proponents and opponents of capital punishment largely agree that death is the most severe punishment that societies should consider imposing on offenders. This chapter considers how (if at all) this ‘Ultimate Thesis’ can be vindicated. Appeals to the irrevocability of death, the badness of being executed, the badness of death, or the harsh condemnation societies express by sentencing offenders to death do not succeed in vindicating this Thesis, and in particular, fail to show that capital punishment (...) is more severe than the most likely alternative punishment offenders would suffer, namely, lifelong incarceration. The most plausible vindication of the Ultimate Thesis instead resides in how being condemned to death alters a person’s psychological relation to death. Our ordinary tendencies toward “death denial” diminish the terror that our awareness of death can otherwise induce in us, thereby enabling us to pursue worthwhile lives despite knowing of death’s inevitability. But condemned individuals are continually compelled to confront both the reality and specific circumstances of their own deaths and so do not enjoy the protective psychic shield that death denial provides us. This ‘relational’ rationale does not obviously succeed in proving the Ultimate Thesis, but if the Thesis is true, this rationale is essential to its justification. (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)

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

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

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)

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

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)

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)

On a Parfit-inspired account of culpability, as the psychological connections between a person’s younger self and older self weaken, the older self’s culpability for a wrong committed by the younger self diminishes. Suppose we accept this account and also accept a culpability-based upper limit on punishment severity. On this combination of views, we seem forced to conclude that perpetrators of distant past wrongs should either receive discounted punishments or be exempted from punishment entirely. This article develops a (...) strategy for resisting this conclusion. I propose that, even if the perpetrators of distant past wrongs cannot permissibly be punished for the original wrongs, in typical cases they can permissibly be punished for their ongoing and iterated failures to rectify earlier wrongs. Having set out this proposal, I defend it against three objections, before exploring how much punishment it can justify. (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)

This article presents a theodicy based on a revision of the popular concept of God’s benevolence. If we follow the Protestant tradition by assuming that God is the exclusive source of virtue, the benevolence of God has to be radically different from the benevolence of a human being. A benevolent and almighty God who wishes to reward virtue and punish evil would design the world order similar to that in the allegory of the long spoons. Divine punishment is unforgiving, (...) merciless, individually non-retributive, holistically retributive, and quantitatively unpredictable. All sufferings are divine punishment. Several popular arguments from evil, including animal suffering, victims of evil deeds, natural disasters, and children’s diseases, can be resolved within this framework. (shrink)

For over a century now, American scholars (among others) have been debating the merits of “bad Samaritan” laws — laws punishing people for failing to attempt easy and safe rescues. Unfortunately, the opponents of bad Samaritan laws have mostly prevailed. In the United States, the “no-duty-to-rescue” rule dominates. Only four states have passed bad Samaritan laws, and these laws impose only the most minimal punishment — either sub-$500 fines or short-term imprisonment. -/- This Article argues that every state should (...) criminalize bad Samaritanism. There are three main reasons. First, criminalization is required by the supreme value that we place on protecting human life, a value that motivates laws against both homicide and manslaughter. Second, criminalization is recommended by the “proportionality principle” — i.e., the principle that a law’s level of punishment should be directly proportional to the moral severity of the offense. Third, criminalization would yield a number of significant benefits, including helping to minimize needless deaths and injuries and providing society with an institutional outlet for its outrage against bad Samaritans. -/- Still, many objections have been leveled against bad Samaritan laws. This Article will argue that while some of these objections — for example, the objections involving foundational criminal law principles such as the actus-reus requirement, the harm principle, and causation — are all easily refuted, five other objections are not. These five objections involve pragmatic considerations such as the difficulties with obtaining evidence against bad Samaritans and psychological considerations such as people’s understandable reasons for not wanting to “get involved.” This Article will then put these five objections into reflective equilibrium with the moral arguments for bad Samaritan laws and conclude that while bad Samaritanism should indeed be criminalized, the punishment that convicted bad Samaritans receive should be mild — certainly milder than the level of punishment recommended by the “proportionality principle.” The corollary of this conclusion is that the criminal law should sometimes abandon the proportionality principle. (shrink)

This article provides a critical analysis of Mark Walker’s type-token theory. This theory purports to describe, explain, and justify the mechanism by which moral and legal responsibility can be attributed to exact and complete duplicates of persons. However, Walker’s defence of the view of persons as abstract entities is met with several metaphysical objections. Alternatively, a new approach to moral and legal responsibility is developed based on principles of agency law, in which the conception of a guilty person does not (...) require identity with the person who committed the culpable act. (shrink)

The United States carceral system, as currently designed and implemented, is widely considered to be an immoral and inhumane system of criminal punishment. There are a number of pressing issues related to this topic, but in this essay, I will focus upon the problem of prison violence. Inadequate supervision has resulted in unsafe prison conditions where inmates are regularly threatened with rape, assault, and other forms of physical violence. Such callous disregard and exposure to unreasonable risk constitutes a severe (...) violation of the rights of prisoners by the state. While there have been numerous legal, political, and activist efforts to draw attention to this issue—with the goal of reforming and making prisons safer—my goal is different. I argue that inmates who are victims of prison violence should have their sentences automatically reduced. Two distinct arguments are advanced in support of this claim. First, I argue that acts of prison violence are a sort of state-mediated harm which can thus be appropriately described as punishment-constituting. Second, and more straightforwardly, I argue that the compensation owed to prisoners who are victims of prison violence may naturally take the form of a reduced sentence. (shrink)

We seek to outline philosophical answers to the questions of why punish, whom to punish and how much to punish, with illustrations from the South African legal system. We begin by examining the differences between forward- and backward-looking moral theories of legal punishment, their strengths and also their weaknesses. Then, we ascertain to which theory, if any, contemporary South Africa largely conforms. Finally, we discuss several matters of controversy in South Africa in the context of forward- and backward-looking theories, (...) including the death penalty, mandatory minimum sentences and victim impact statements. (shrink)

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

About 80 % of all convicted have had a prior record of conviction. But how should the state punish repeat offenders (with a prior conviction) as compared with first-time offenders who are convicted? The law in all jurisdictions, a large swathe of public opinion, and the general trend within criminal justice ethics all seem to accept what we may call: -/- Asymmetry A The punishment of repeat offenders should be harsher than the punishment of first-time offenders. -/- This (...) asymmetry is obviously just a rough structure. It leaves a lot of room for interpretation. Several retributivists have argued for progressive loss of mitigation (PLM). On this view, a first-time offender receives a discount on punishment that is gradually lost if he re-offends. When the discount is lost the offender receives the full punishment, and re-offending from that point on will be punished equally. However, recently some retributivists have argued in favour of a cumulative principle (CP) according to which an offender will progressively be punished more severely the more convictions he has accumulated. In sum, in the theoretical literature on the subject, Asymmetry A has been the mantra for several prominent retributivists. The aim of this paper is to point to an all but overlooked logical point in the discussion of punishment and recidivism. This is the point that it follows, from retributivism, that there is a reason - at least in some situations, as we shall see - to support what we may call: -/- Asymmetry B The punishment of repeat offenders should be more lenient than the punishment of first-time offenders. (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)

Legal theorists have proposed several theories to justify statutes of limitations in the criminal law, but none of these normative theories is generally accepted. This chapter investigates the related descriptive question as to whether ordinary people have the intuition that legal punishment becomes less appropriate as time passes from the date of the offense and, if they do, what factors play a role in these intuitions. Five studies demonstrate that there is an intuitive statute of limitations on both legal (...) punishment and moral criticism, and that these intuitions arise, in part, from judgments about changes in psychological connectedness over time. (shrink)

The emerging neuroscience of psychopathy will have several important implications for our attempts to construct an ethical society. In this article we begin by describing the list of criteria by which psychopaths are diagnosed. We then review four competing neuropsychological theories of psychopathic cognition. The first of these models, Newman’s attentional model, locates the problem in a special type of attentional narrowing that psychopaths have shown in experiments. The second and third, Blair’s amygdala model and Kiehl’s paralimbic model represent the (...) psychopath’s problem as primarily emotional, including reduced tendency to experience fear in normally fearful situations, and a failure to attach the proper significance to the emotions of others. The fourth model locates the problem at a higher level: a failure of psychopaths to notice and correct for their attentional or emotional problems using “executive processes.” In normal humans, decisions are accomplished via these executive processes, which are responsible for planning actions, or inhibiting unwise actions, as well as allowing emotions to influence cognition in the proper way. We review the current state of knowledge of the executive capacities of psychopaths. We then evaluate psychopaths in light of the three major philosophical theories of ethics, utilitarianism, deontological theory, and virtue ethics. Finally, we turn to the difficulty psychopath offenders pose to criminal law, because of the way psychopathy interacts with the various justifications and functions of punishment. We conclude with a brief consideration of the effects of psychopaths on contemporary social structures. (shrink)

The seventeenth century was an important period in the conceptual development of the notion of the infinite. In 1643, Evangelista Torricelli (1608-1647)—Galileo’s successor in the chair of mathematics in Florence—communicated his proof of a solid of infinite length but finite volume. Many of the leading metaphysicians of the time, notably Spinoza and Leibniz, came out in defense of actual infinity, rejecting the Aristotelian ban on it, which had been almost universally accepted for two millennia. Though it would be another two (...) centuries before the notion of the actually infinite was rehabilitated in mathematics by Dedekind and Cantor (Cauchy and Weierstrass still considered it mere paradox), their impenitent advocacy of the concept had significant reverberations in both philosophy and mathematics. In this essay, I will attempt to clarify one thread in the development of the notion of the infinite. In the first part, I study Spinoza’s discussion and endorsement, in the Letter on the Infinite (Ep. 12), of Hasdai Crescas’ (c. 1340-1410/11) crucial amendment to a traditional proof of the existence of God (“the cosmological proof” ), in which he insightfully points out that the proof does not require the Aristotelian ban on actual infinity. In the second and last part, I examine the claim, advanced by Crescas and Spinoza, that God has infinitely many attributes, and explore the reasoning that motivated both philosophers to make such a claim. Similarities between Spinoza and Crescas, which suggest the latter’s influence on the former, can be discerned in several other important issues, such as necessitarianism, the view that we are compelled to assert or reject a belief by its representational content, the enigmatic notion of amor Dei intellectualis, and the view of punishment as a natural consequent of sin. Here, I will restrict myself to the issue of the infinite, clearly a substantial topic in itself. (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)

[Note: articles 1-5 are in English; Intro, Discussion, and Conclusion are in Portuguese.] Responsibility practices that are part of our daily lives involve, among other things, standards about how one should praise, blame, or punish people for their actions, as well as particular acts that follow those standards to a greater or lesser extent. A classical question in philosophy asks whether human beings can actually be morally responsible for what they do. This dissertation argues that addressing this classical question is (...) insufficient if one wants the investigation of moral responsibility to serve the goal of improving ordinary responsibility practices. As an alternative, I offer directions for an interdisciplinary investigation that I take to be in a better position to promote that goal. My argument is developed in five articles and a discussion section. The first four articles describe limitations of skeptical views, which deny the existence of moral responsibility. The first article assesses a skeptical argument based on results from neuroscience that intends to show that there is no free will. I argue that a premise in the argument—which says that choices are determined by events in the brain—is not supported by the available results. The second article argues that, despite the fact that existent results do not show that choices are determined by brain events, further studies in neuroscience could in principle do that. The third article begins the discussion of limitations that concern the implementability of some of the changes in responsibility practices recommended in skeptical approaches. Specifically, I describe challenges that attempts to reduce the severity of legal punishment are likely to face due to psychological facts about belief in free will and desire to punish. The forth article presents results from an original experiment that sought to test a hypothesis about the workings of belief in free will and the desire to punish, namely the hypothesis that the desire to punish causally affects beliefs about free will. Results failed to support the hypothesis. Finally, the fifth article presents what I call the enhancement model, i.e., a proposal about how to structure an interdisciplinary investigation that can promote the enhancement of ordinary responsibility practices. The final discussion section shows how the enhancement model overcomes some of the limitations of recent discussions about the existence of moral responsibility, which includes not just the skeptical views considered in earlier articles, but also views that affirm the existence of moral responsibility and free will. The central claim of this dissertation, therefore, is that the investigation of moral responsibility can be rearranged so as to further the goal of improving ordinary responsibility practices. (shrink)

In this work, I will support a combined notion of harm according to which there are qualitatively different harms. I will support a way in which the severity of harms could be measured. Then, I will provide three principles about the strength of the reasons against harming. The supported thesis will provide some tools to solve some problems of the general part of criminal law. In relation to the analytical stratum of statutory description of an offence, I will show (...) that the defended notion of harm could help to solve cases of hypothetical and alternative causal courses. In relation to the analytical stratum of unlawfulness (or wrongfulness), I will show that the proposed ranking of the severity of harms help us to distinguish between cases of necessity as justification and necessity as excuse. In relation to the analytical stratum of culpability, I will show that the principles regarding the strength of the reasons against harming help us to supply straightforward criteria to measure the punishment to impose for having committed some crime. -/- En este trabajo intentaré defender una noción combinada de daño de acuerdo a la cual existen dos tipos de daños cualitativamente diferentes. Asimismo, defenderé un modo en que la gravedad de los diferentes daños puede ser graduada. Derivado de lo anterior, extraeré tres principios sobre la fuerza de las razones en contra de dañar. La tesis defendida proporcionará herramientas para resolver algunos problemas de la parte general de derecho penal. En relación al tipo penal, mostraré que la noción de daño defendida puede ayudar a resolver casos de cursos causales alternativos e hipotéticos. En referencia a la antijuridicidad, mostraré que la clasificación de la gravedad de los daños propuesta ayuda a distinguir qué casos de estado de necesidad deben considerarse como justificación y cuales como excusa. En referencia a la culpabilidad, mostraré que los principios sobre la diferente fuerza de las razones en contra de dañar ayudan a aportar criterios claros para la individualización de la pena a imponer por la comisión de un delito. (shrink)

The problem of moral luck is that a general fact about luck and an intuitive moral principle jointly imply the following skeptical conclusion: human beings are morally responsible for at most a tiny fraction of each action. This skeptical conclusion threatens to undermine the claim that human beings deserve their respective eternal reward and punishment. But even if this restriction on moral responsibility is compatible with the doctrine of the final judgment, the quality of one’s afterlife within heaven or (...) hell still appears to be lucky. Utilizing recent responses to the problem of moral luck, I explore several Molinist accounts of the final judgment that resolve both theological problems of moral luck. Some of these accounts entirely eliminate moral luck while others ensure that the moral luck involved in the judgment is overall good luck. (DOWNLOAD the published version at the external link below.). (shrink)

As several scholars have argued, far from being antithetical to American values, the torture of nonwhite peoples has long been a method through which the United States has enforced (at home and abroad) a conception of what I will call “white moral citizenship." What is missing from this literature, however, is an exploration of the role that the erasure of torture, and the political and public narratives that are used to justify torture, plays in this function. -/- As I will (...) demonstrate in this article, the erasure of American torture takes at least three different but mutually reinforcing forms: erasure of the fact of torture, erasure of the experience of torture, and erasure of the victims of torture. Erasure of the fact of torture occurs when lack of education and public discussion creates widespread ignorance about the history of torture in America, as has occurred in relation to the post-9/11 torture program. Erasure of the experience of torture occurs when victims’ experiences of extreme suffering, and practices or institutions that inflict extreme suffering (such as solitary confinement), are not acknowledged as forms of torture. Erasure of the victims of torture occurs when victims are treated with indifference and even contempt, even when what they suffered is acknowledged to be torture, and their perspectives and experiences are dismissed, minimized, or ignored. -/- As I shall argue, both the use of the torture and the forms of erasure described above are essential components in the ongoing enforcement of the normative boundaries of American white moral citizenship and the myth of American exceptionalism and civilization. The repeating pattern of the use and erasure of torture leads to the ongoing toleration of practices that constitute torture and that overwhelmingly impact people of color. Until this pattern of justification and erasure is recognized and confronted, torture will continue to be embedded within American culture and institutions. (shrink)

This Article falls into three general parts. The first part starts with an important question: is the insanity defense constitutionally required? The United States Supreme Court will finally try to answer this question next term in the case of Kahler v. Kansas. -/- I say “finally” because the Court refused to answer this question in 2012 when it denied certiorari to an appeal brought by John Joseph Delling, a severely mentally ill defendant who was sentenced to life in prison three (...) years earlier for two murders. Delling never had the opportunity to plead the insanity defense because his home state, Idaho, had abolished it in 1982. -/- By depriving Delling of the right to plead insanity, Idaho violated Delling’s Fourteenth Amendment right to due process and his Eighth Amendment right against “cruel and unusual” punishment. Naturally, the same is true for many other mentally ill and disabled defendants who have been prosecuted in Idaho and in the other three states that have abolished the insanity defense: Kansas, Montana, and Utah. -/- The second general part of this Article notes an insight that I stumbled upon in the course of researching the first part: the insanity defense and the mistake of law defense both require ignorance of the law, what I refer to as “normative ignorance.” Indeed, normative ignorance is what makes both of these defenses exculpatory in the first place. -/- Given this critical connection, there is a way for Idaho, Kansas, Montana, and Utah to resume compliance with the Constitution. Instead of reinstating the insanity defense per se, which might be politically unpopular, they should just broaden their mistake of law defense to include normative ignorance caused by cognitive incapacity that is itself caused by mental illness or disability. -/- Still, this Article is not merely directed at these four western states. It is directed at the other forty-six states as well. Because they already have an insanity defense, they need not incorporate it into their mistake of law defense. But in the third general part, I will argue that they should still expand their mistake of law defense to cover defendants who either lack a reasonable opportunity to learn the law or reasonably but mistakenly infer from widely accepted norms or ethics that their conduct is lawful. (shrink)

No one is responsible for their conduct because free will is an illusion, say some skeptics. Even when it seems that we have several options, we only have one. Hence, says the free will skeptic, we should reform our practices which involve responsibility attributions, such as punishment and blame. How seriously should we take this doctrine? Is it one that we could live by? One thorn in the side of the skeptic concerns deliberation. When we deliberate about what to (...) do—what film to go see, whom to befriend, which doctrine to follow—we must presume that our options are open to us. But then, every time that skeptics deliberate, they presume something which is incompatible with their doctrine, i.e. that they have several options. In a word, skeptics cannot deliberate qua skeptics. Some philosophers have responded that deliberators don’t have to presume that their options are open; they only have to presume that their choice will be efficacious. I argue that this proposal uses resources which, if they are available and successful, can be employed to refute skepticism. The upshot is that free will skeptics are pushing for a doctrine that is either false or in tension with deliberation. (shrink)

Introduction: A general trend in the psychological literature suggests that guilt contributes to morality more than shame does. Unlike shame-prone individuals, guilt-prone individuals internalize the causality of negative events, attribute responsibility in the first person, and engage in responsible behavior. However, it is not known how guilt- and shame-proneness interact with the attribution of responsibility to others. -/- Methods: In two Web-based experiments, participants reported their attributions of moral culpability (i.e., responsibility, causality, punishment and decision-making) about morally ambiguous acts (...) of killing in different conditions. In Study 1 the vignettes were presented in the 1st person, while in Study 2 in the 3rd person. To test proneness to guilt and shame, we utilized the GASP scale, which differentiates between the affective and behavioral components of each emotion. Statistical analyses were performed in Matlab and R. -/- Results: We found that guilt- and shame-proneness were associated with the severity of attributions in both the first and the third person, but the effect was strong only in the guilt case (both subtypes) and shame-affect case, and not in the shame-behavior case. We call this the Moralizing Effect. -/- Discussion: We wonder whether our finding that guilt-prone people tend to attribute a higher degree of culpability to others is really consistent with the view that guilt motivates people to choose the “moral paths in life”. This echoes views about the harmful aspects of guilt, which have been expressed historically in philosophy, for example, by Friedrich Nietzsche. (shrink)

Most philosophers now concede that libertarianism has failed as an account of free will. Assuming the correctness of this concession, that leaves compatibilism and hard determinism as the only remaining choices in the free will debate. In this paper, I will argue that hard determinism turns out to be a form of compatibilism, and therefore, compatibilism is the only remaining position in the free will debate. I will attempt to establish this conclusion by arguing that hard determinists will end up (...) punishing or rewarding the same acts (and omissions) that the compatibilists punish and reward. Next, I will respond to several objections that attempt to pry apart hard determinism and compatibilism. It will emerge not only that hard determinism and compatibilism are identical at the practical level, but also that the key terms employed by the hard determinist have the same meaning as equivalent terms ("free," "morally responsible," and "retributive punishment") employed by the compatibilist. I conclude that hard determinism genuinely is a form of compatibilism. (shrink)

Though this volume is a bit dated, there are few recent popular books dealing specifically with the psychology of murder and it’s a quick overview available for a few dollars, so still well worth the effort. It makes no attempt to be comprehensive and is somewhat superficial in places, with the reader expected to fill in the blanks from his many other books and the vast literature on violence. For an update see e.g., Buss, The Handbook of Evolutionary Psychology 2nd (...) ed. V1 (2016) p 265, 266, 270–282, 388–389, 545–546, 547, 566 and Buss, Evolutionary Psychology 5th ed. (2015) p 26, 96–97,223, 293-4, 300, 309–312, 410 and Shackelford and Hansen, The Evolution of Violence (2014) He has been among the top evolutionary psychologists for several decades and covers a wide range of behavior in his works, but here he concentrates almost entirely on the psychological mechanisms that cause individual people to murder and their possible evolutionary function in the EEA (Environment of Evolutionary Adaptation—i.e., the plains of Africa during the last million years or so). -/- Buss starts by noting that as with other behaviors, ‘alternative’ explanations such as psychopathology, jealousy, social environment, group pressures, drugs and alcohol etc. do not really explain, since the question still remains as to why these produce homicidal impulses, i.e., they are the proximate causes and not the ultimate evolutionary (genetic) ones. As always, it inevitably boils down to inclusive fitness (kin selection), and so to the struggle for access to mates and resources, which is the ultimate explanation for all behavior in all organisms. Sociological data (and common sense) make it clear that younger poorer males are the most likely to kill. He presents his own and others homicide data from industrialized nations, and tribal cultures, conspecific killing in animals, archeology, FBI data and his own research into normal people's homicidal fantasies. Much archeological evidence continues to accumulate of murders, including that of whole groups, or of groups minus young females, in prehistoric times. -/- After surveying Buss’s comments, I present a very brief summary of intentional psychology (the logical structure of rationality), which is covered extensively in my many other articles and books. -/- Those with a lot of time who want a detailed history of homicidal violence from an evolutionary perspective may consult Steven Pinker’s ‘The Better Angels of Our Nature Why Violence Has Declined’(2012), and my review of it easily available on the net and in two of my recent ebooks. Briefly, Pinker notes that murder has decreased steadily and dramatically by a factor of about 30 since our days as foragers. So, even though guns now make it extremely easy for anyone to kill, homicide is much less common. Pinker thinks this is due to various social mechanisms that bring out our ‘better angels’, but I think it’s due mainly to the temporary abundance of resources from the merciless rape of our planet, coupled with increased police presence, with communication and surveillance and legal systems that make it far more likely to be punished. This becomes clear every time there is even a brief and local absence of the police. -/- Those wishing a comprehensive up to date framework for human behavior from the modern two systems of thought viewpoint may consult my e-book ‘The Logical Structure of Philosophy, Psychology, Mind and Language in Wittgenstein and Searle 367p (2016). Those interested in more of my writings on psychology may see Suicidal Utopian Delusions in the 21st Century--Philosophy, Human Nature and the Collapse of Civilization 392p (2017). For all my writings in their most recent versions, please consult my e-book Philosophy, Human Nature and the Collapse of Civilization - Articles and Reviews 2006-2017 3rd Ed. 686p (2017). -/- All of my papers and books have now been published in revised versions both in ebooks and in printed books. -/- Talking Monkeys: Philosophy, Psychology, Science, Religion and Politics on a Doomed Planet - Articles and Reviews 2006-2017 (2017) https://www.amazon.com/dp/B071HVC7YP. -/- The Logical Structure of Philosophy, Psychology, Mind and Language in Ludwig Wittgenstein and John Searle--Articles and Reviews 2006-2016 (2017) https://www.amazon.com/dp/B071P1RP1B. -/- Suicidal Utopian Delusions in the 21st century: Philosophy, Human Nature and the Collapse of Civilization - Articles and Reviews 2006-2017 (2017) https://www.amazon.com/dp/B0711R5LGX -/- . (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 The Stubborn System of Moral Responsibility (2015), Bruce Waller sets out to explain why the belief in individual moral responsibility is so strong. He begins by pointing out that there is a strange disconnect between the strength of philosophical arguments in support of moral responsibility and the strength of philosophical belief in moral responsibility. While the many arguments in favor of moral responsibility are inventive, subtle, and fascinating, Waller points out that even the most ardent supporters of moral responsibility (...) acknowledge that the arguments in its favor are far from conclusive; and some of the least confident concerning the arguments for moral responsibility—such as Van Inwagen—are most confident of the truth of moral responsibility. Thus, argues Waller, whatever the verdict on the strength of philosophical arguments for moral responsibility, it is clear that belief in moral responsibility—whether among philosophers or the folk—is based on something other than philosophical reasons. -/- He goes on to argue that there are several sources for the strong belief in moral responsibility, but the following four are particularly influential: First, moral responsibility is based in a powerful “strike back” emotion that we share with other animals. Second, there is a deep-rooted “belief in a just world”—a belief that, according to Waller, most philosophers reject when they consciously consider it, but which has a deep nonconscious influence on what we regard as just treatment and which provides subtle (but mistaken) support for belief in moral responsibility. Third, there is a pervasive moral responsibility system—extending over criminal justice as well as “common sense”—that makes the truth of moral responsibility seem obvious, and makes challenges to moral responsibility seem incoherent. Finally, there is the enormous confidence we have in the power of reason, which mistakenly leads us to believe that our conscious, rational, and critically reflective selves are constantly guiding our behavior in accordance with our deep values. -/- In these comments, I would like to discuss the many points of agreement I have with Waller, providing along the way additional fuel for his skeptical fire (i.e., his moral responsibility skepticism and his skeptical analysis of the source of our strong belief in moral responsibility). I will also discuss, however, my one main point of disagreement—i.e., his desire to preserve the conception of free will. Waller believes free will can “flourish” in the absence of moral responsibility (see Ch.8), while I maintain they that the variety of free will that is of central philosophical and practical importance is the sort required for moral responsibility in a particular but pervasive sense. This sense of moral responsibility is set apart by the notion of basic desert and is purely backward-looking and non-consequentialist (see Pereboom 2001, 2014; Caruso and Morris, forthcoming). Understood this way, the sort of free will at issue in the historical debate is a kind of power or ability an agent must possess in order to justify certain kinds of desert-based judgments, attitudes, or treatments in response to decisions or actions that the agent performed or failed to perform. (shrink)

Juvenile offenders are sometimes transferred to a criminal court where they may stand trial as adults. The rationale for this current trend cannot be justified based on evidence from developmental psychology, the evidence of consistent positive effects for particular intervention strategies, and ethical arguments for justification of punishment. The rationale in actuality reflects the selective manipulation of the alternative conceptions of young people as dependent and vulnerable or as autonomous and responsible to continue to justify policies that entail cultural (...) and racial discrimination. Discretionary decisions at various stages of the justice process amplify racial disparities as minority youths proceed through the system and result in more severe dispositions that for comparable White youths. (shrink)

There is a large and growing literature on communal interpretive resources: the concepts, theories, narratives, and so on that a community draws on in interpreting its members and their world. (They're also called “hermeneutical resources” in some places and “epistemic resources” in others.) Several recent contributions to this literature have concerned dominant and resistant interpretive resources and how they affect concrete lived interactions. In this article, I note that “using” interpretive resources—applying them to parts of the world in conversation with (...) others—is “a rule‐governed activity”; and I propose that in oppressive systems, these rules are influenced by the rules of oppression. Section I clarifies some rules governing the use of resources. Section II draws on work by Gaile Pohlhaus, Jr. and others to suggest that according to the present rules of our oppressive system, it is permissible for dominantly situated speakers to dismiss interpretive resources developed in marginalized communities. Section III appeals to Charles Mills's work on White ignorance to propose, further, that our system's rules make it impermissible and deserving of punishment to use resistant resources. The conclusion enumerates several further points about such rules governing the use of interpretive resources, their social effects, and some philosophical literatures. (shrink)

Research has probed the consequences of providing people with different types of information regarding why a person possesses a certain characteristic. However, this work has largely examined the consequences of different information subsets (e.g., information focusing on internal versus societal causes). Less work has compared several types of information within the same paradigm. Using the legal system as an example domain, we provided children (N=198 6- to 8-year-olds) with several types of information—including information highlighting internal moral character, internal biological factors, (...) behavioral factors, and societal factors—about why a specific outcome (incarceration) might occur. We examined how such language shaped children’s attitudes. In Study 1, children reported the most positivity toward people who were incarcerated for societal reasons and the least positivity toward people who were incarcerated for their internal moral character; attitudes linked with behavioral information fell between these extremes. Studies 2a-2b suggested that Study 1’s effects could not be fully explained by participants drawing different about individuals in Study 1. Study 3 replicated Study 1’s results and showed that information linking incarceration with internal biological factors led to more positivity than information linking incarceration with internal moral character. Finally, Study 4 suggested that the patterns found in Studies 1 and 3 generalize to non-punitive contexts. Moreover, Study 4 found that the effects in Studies 1 and 3 emerged regardless of whether information was communicated via explanations or descriptions. These results demonstrate that how we express our beliefs about social phenomena shape the realities in which others live. (shrink)

Two-tiered mixed theories of punishment hold that legislatures should act according to consequentialism, but the judiciary should act according to retributivism. A major motivation for these theories is wanting to preserve the idea that punishment is ultimately justified on consequentialist grounds, without falling prey to the Punishing the Innocent objection. Yet this benefit is illusory. While two-tiered mixed theories successfully avoid the Punishing the Innocent objection narrowly construed, they do not successfully escape the point behind it. This is (...) because cases can be constructed with the same problems as those used to describe the classic Punishing the Innocent objection, just bumped up to the legislature. (shrink)

This study assessed the administration of punishment, students’ test anxiety, and performance in mathematics in secondary schools of Cross River State. Three null hypotheses were formulated following a correlational research design. Proportionate stratified random sampling technique was employed in selecting a sample of 2,554 respondents representing 5% of the population of 51,097 junior secondary school students distributed across 271 public secondary schools in Cross River State. Administration of Punishment Questionnaire (APQ) designed by the researchers, Test Anxiety Inventory (TAI) (...) developed by Dawood et al., (2016), and Mathematics Achievement Test (MAT) designed by Owan (2012), were used as instruments for data collection. The null hypotheses were tested using one-way MANOVA), Pearson Product Moment Correlation, and Multiple regression analyses with the aid of SPSS v23. Findings revealed amongst others that administration of punishment has a significant influence on students’ test anxiety and performance in mathematics F (6, 5098) = 24.149, p<.05; Wilk’s Λ = 0.945, partial η2 = .028 on a joint basis; administration of punishment has a significant influence respectively on students’ test anxiety F (3, 2550) = 22.697, p<.0005, partial η2 =.026 and performance in mathematics F (3, 2550) = 23.090, P<.0005, partial η2 =.026; there is an inverse significant relationship (r= -339, p<0.05) between students’ tests anxiety and performance in mathematics. It was recommended that the use of corporal punishment should be totally abolished on strict grounds that it hurts the psychological disposition of learners resulting in a dip in their performance consequently. (shrink)

Philosophers have had surprisingly little to say about the concept of a victim although it is presupposed by the extensive philosophical literature on rights. Proceeding in four stages, I seek to remedy this deficiency and to offer an alternative to the two current paradigms that eliminates the Othering of victims. First, I analyze two victim paradigms that emerged in the late 20th century along with the initial iteration of the international human rights regime – the pathetic victim paradigm and the (...) heroic victim paradigm. Holocaust victims are quintessential instances of the pathetic victim paradigm. They are marked by passivity and innocence in the face of overpowering force and unspeakable humanly inflicted suffering. Aung San Suu Kyi is an exemplar of the heroic victim paradigm – prisoners of conscience, in Amnesty International’s terms. Because heroic victims face off against the repressive power of the state to fight injustice, they are by no means passive, but they must be innocent of wrongdoing – that is, they must use nonviolent means of dissent – to qualify as heroic victims. Second, I problematize the asymmetrical conceptions of innocence that underwrite the two victim paradigms. Whereas the pathetic victim paradigm identifies innocence with passivity, the heroic victim paradigm countenances agentic victims and adverts to a universalist, absolutist stance on the limits of the legitimate use of state power to ascribe innocence to heroic victims. Both conceptions of innocence are out of keeping with well established social and legal practices regarding what constitutes coercive force and innocent victimhood. Consequently, there is reason to be skeptical of the two victim paradigms. Third, I identify two kinds of human rights violations and two categories of victims that AI defends despite their failure to fit the two paradigms – women trafficked into sex work and prisoners on death row. In many cases, women forced to do sex work are not innocent girls who are ignorant of the trafficking system and who helplessly fall prey to smugglers. They are desperately poor women who for that reason are willing to take enormous risks to try to relieve their own and often their families’ deprivation and suffering. Although these women act nonviolently for irreproachable reasons, they lack the public political agendas that characterize heroic victims. Unless non-fulfillment of subsistence rights is recognized as a form of overpowering force that inflicts severe, avoidable suffering, these women do not qualify as pathetic victims either. The victim paradigms pose an even greater obstacle to recognizing that the death penalty is a human rights violation and that death row prisoners are victims. Because a jury concluded that these individuals committed heinous, violent crimes, they are excluded by the heroic victim paradigm. Only if death row prisoners can be proven (usually through DNA evidence) not to have committed the crimes for which they were convicted can these individuals qualify as pathetic victims. In the absence of any reason to believe that they are innocent and especially if they are unrepentant, they are widely regarded as brutal victimizers of others who deserve no sympathy for, let along relief from, the suffering they “brought on themselves.” Finally, I confront the Othering of victims that results from the two victim paradigms, which leads many victims to eschew the label, thereby opting out of human right discourse. I propose revisions in the victim paradigms that eliminate the real-world exclusions they sponsor as well as the Othering of victims of human rights abuses. In particular, I endorse greater attention to what people and the institutions they create do to other people, and I favor a presumption that unnecessary and severe humanly inflicted suffering is a human rights violation. Moreover, I reject the innocence criterion embedded in the two paradigms and urge that it be replaced by a burdened agency criterion. These modifications better align the concept of a victim with a realistic understanding of human subjectivity and agency and allow for a more capacious understanding of who is a bearer of human rights and under what conditions right-holders become victims of rights violations. (shrink)

The abolition of death penalty is one commonplace issue over global jurisdictions. Nevertheless, it is also true that a surfeit of research has been dealt either in any specific way of legal research or general method of social science. This tends to create a track of practice that they approach the issue in its own national standard of research or discrete logic and narrative. The author proposes an orthodox of legal research by exemplifying the issue of death penalty. By demonstrating (...) a process of legal research in exemplary concerns of death penalty between Korea and US, the article would raise several implications for the future studies; (i) the orthodox of legal research as compared with the quantitative and qualitative methods (ii) key implications of three traditional sources of legal research, i.e., secondary, primary-statute, and primary-court cases (iii) encouragement of comparative social studies between the parallel nations. (shrink)

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

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)

Many philosophers think that an agent punishes a subject only if the agent aims to harm the subject. Bill Wringe has recently argued against this claim. I show that his arguments fail.

This paper continues a debate about the following claim: an agent punishes someone only if she aims to harm him. In a series of papers, Bill Wringe argues that this claim is false, I criticize his arguments, and he replies. Here, I argue that his reply fails.

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)