Punishment in Criminal Law

Edited by Gustavo Beade (Universidad de Buenos Aires (UBA), Christian-Albrechts-Universität zu Kiel)
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  1. super-Retributivism.Paul Bali - manuscript
    a criminal, C, inflicts an injustice upon their Victim. thus C deserves to suffer an injustice: an excessive punishment.
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  2. Mechanical Choices: A Compatibilist Libertarian Response.Christian List - manuscript
    Michael S. Moore defends the ideas of free will and responsibility, especially in relation to criminal law, against several challenges from neuroscience. I agree with Moore that morality and the law presuppose a commonsense understanding of humans as rational agents, who make choices and act for reasons, and that to defend moral and legal responsibility, we must show that this commonsense understanding remains viable. Unlike Moore, however, I do not think that classical compatibilism, which is based on a conditional understanding (...)
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  3. Law, Philosophy and Responsibility: The Roman Ingarden Contribution.Michal Peno - manuscript
    This text is a kind of sketch and presents some simple ideas. The aim of this article is to carry out a critical and reflexive analysis of Roman Ingarden's philosophy of responsibility. Being a member of the phenomenological current, Ingarden mainly studied the ontological bases or conditions of responsibility by identifying different situations of responsibility. In this paper situations of responsibility have been analysed in the semantic contexts in which the word "responsibility" appears. Legally, the prescriptive contexts of using the (...)
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  4. Reply to critics.John Gardner - manuscript
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  5. Prohibiting immoralities.John Gardner - manuscript
    Destined for the Cardozo Law Review. Posted 28 November 2006.
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  6. The Death Penalty Debate: Four Problems and New Philosophical Perspectives.Masaki Ichinose - June 2017 - Journal of Practical Ethics 5 (1):53-80.
    This paper aims at bringing a new philosophical perspective to the current debate on the death penalty through a discussion of peculiar kinds of uncertainties that surround the death penalty. I focus on laying out the philosophical argument, with the aim of stimulating and restructuring the death penalty debate. I will begin by describing views about punishment that argue in favour of either retaining the death penalty (‘retentionism’) or abolishing it (‘abolitionism’). I will then argue that we should not ignore (...)
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  7. The Public Health-Quarantine Model.Gregg D. Caruso - forthcoming - In Oxford Handbook of Moral Responsibility. New York: Oxford University Press.
    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 (...)
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  8. Biological Interventions for Crime Prevention.Christopher Chew, Thomas Douglas & Nadira Faber - forthcoming - In David Birks & Thomas Douglas (eds.), Treatment for Crime: Philosophical Essays on Neurointerventions in Criminal Justice. Oxford: Oxford University Press.
    This chapter sets the scene for the subsequent philosophical discussions by surveying a number of biological interventions that have been used, or might in the future be used, for the purposes of crime prevention. These interventions are pharmaceutical interventions intended to suppress libido, treat substance abuse or attention deficit-hyperactivity disorder (ADHD), or modulate serotonin activity; nutritional interventions; and electrical and magnetic brain stimulation. Where applicable, we briefly comment on the historical use of these interventions, and in each case we discuss (...)
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  9. Against Legal Punishment.Nathan Hanna - forthcoming - In Matthew C. Altman (ed.), Palgrave Handbook on the Philosophy of Punishment. Palgrave.
    I argue that legal punishment is morally wrong because it’s too morally risky. I first briefly explain how my argument differs from similar ones in the philosophical literature on legal punishment. Then I explain why legal punishment is morally risky, argue that it’s too morally risky, and discuss objections. In a nutshell, my argument goes as follows. Legal punishment is wrong because we can never sufficiently reduce the risk of doing wrong when we legally punish people. We can never sufficiently (...)
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  10. Entrapment.Daniel J. Hill, Stephen K. McLeod & Attila Tanyi - forthcoming - In Valsamis Mitsilegas, Pedro Caeiro, Sabine Gless, Miguel João Costa & Foivi Mouzakiti (eds.), Elgar Encylopedia of Criminal Law and Criminal Justice. Cheltenham, UK: Edward Elgar.
    We discuss how the law and scholars have approached three questions. First, what acts count as acts of entrapment? Secondly, is entrapment a permissible method of law-enforcement and, if so, in what circumstances? Thirdly, what must criminal courts do, in response to the finding that an offence was brought about by an act of entrapment, in order to deliver justice? While noting the contrary tendency, we suggest that the first question should be addressed in a manner that is neutral about (...)
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  11. Mitä merkitystä rangaistuksella on?Antti Kauppinen - forthcoming - In Rikoksen ja rangaistuksen filosofia.
    On varsin yleisesti hyväksyttyä, että rangaistuksen ilmaisullinen tehtävä - eli se, että se ilmaisee yhteisön paheksuntaa - on yksi sen ominaispiirre. Viime aikoina on kuitenkin esitetty myös kunnianhimoisempia väitteitä siitä, että rangaistuksen voisi oikeuttaa sen ilmaisullisella tehtävällä. Nämä näkemykset ovat myös saaneet runsaasti kritiikkiä. Tässä esseessä kehittelen aiemmin muotoilemaani versiota ekspressiivisestä rangaistusteoriasta, jonka mukaan asenteiden toiminnallinen ilmaisu rankaisemalla on oikeutettua siksi, että muuten rikoksen uhrilla ei ole hänelle kuuluvaa oikeudenhaltijan statusta. Jos ihmisen oikeuksia voi loukata rangaistuksetta, ne jäävät moraaliseksi ihanteeksi (...)
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  12. Let's Not Do Responsibility Skepticism.Ken M. Levy - forthcoming - Journal of Applied Philosophy.
    I argue for three conclusions. First, responsibility skeptics are committed to the position that the criminal justice system should adopt a universal nonresponsibility excuse. Second, a universal nonresponsibility excuse would diminish some of our most deeply held values, further dehumanize criminals, exacerbate mass incarceration, and cause an even greater number of innocent people (nonwrongdoers) to be punished. Third, while Saul Smilansky's ‘illusionist’ response to responsibility skeptics – that even if responsibility skepticism is correct, society should maintain a responsibility-realist/retributivist criminal justice (...)
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  13. Justified Belief and Just Conviction.Clayton Littlejohn - forthcoming - In Jon Robson & Zachary Hoskins (eds.), Truth and Trial. Routledge.
    Abstract: When do we meet the standard of proof in a criminal trial? Some have argued that it is when the guilt of the defendant is sufficiently probable on the evidence. Some have argued that it is a matter of normic support. While the first view provides us with a nice account of how we ought to manage risk, the second explains why we shouldn’t convict on the basis of naked statistical evidence alone. Unfortunately, this second view doesn’t help us (...)
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  14. n-1 Guilty Men.Clayton Littlejohn & Julien Dutant - forthcoming - In The Future of Normativity. Oxford University Press.
    We discuss the difficulties that arise for standard reasons-first theories by looking at a case in which an agent who seems initially to know that n individuals are responsible for wrongdoing learns that n-1 are guilty. On the one hand, if this agent can retain their initial knowledge, it seems the agent should be able to believe in at least n-1 cases that the relevant subject is culpable, blame this agent for wrongdoing, and punish accordingly. Since we're not primarily interested (...)
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  15. A Relational Theory of Justice.Thaddeus Metz - forthcoming - Oxford University Press.
    The core idea of A Relational Theory of Justice is that normative political and legal philosophy should be grounded on people’s relational features, in particular their ability to commune with others and be communed with by them. Usually, philosophers of justice in the West have based their views on people’s intrinsic features, ones that make no essential reference to others, such as their autonomy, self-ownership, or well-being. In addition, often critics of basing politics and law on justice, whether in the (...)
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  16. Holding Responsible in the African Tradition: Reconciliation Applied to Punishment, Compensation, and Trials.Thaddeus Metz - forthcoming - In Maximillian Kiener (ed.), Routledge Handbook of Philosophy of Responsibility. Routledge.
    When it comes to how to hold people responsible for wrongdoing, much of the African philosophical tradition focuses on reconciliation as a principal final aim. This essay expounds an interpretation of reconciliation meant to have broad appeal, and then draws out its implications for responsibility in respect to three matters. First, when it comes to criminal justice, it shows that prizing reconciliation entails that offenders should be held responsible to “clean up their own mess,” i.e., to compensate victims and reform (...)
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  17. A Précis of Punishment.Gianfranco Pellegrino - forthcoming - Philosophy and Public Issues - Filosofia E Questioni Pubbliche.
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  18. How not to Define Punishment.Gianfranco Pellegrino - forthcoming - Philosophy and Public Issues - Filosofia E Questioni Pubbliche.
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  19. Punishment without Pain. Outline for a Non-Afflictive Definition of Legal Punishment.Gianfranco Pellegrino - forthcoming - Philosophy and Public Issues - Filosofia E Questioni Pubbliche.
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  20. The Social Scale: The Weight of Justice.Daniel Seltzer (ed.) - forthcoming - MIT Press.
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  21. The moral permissibility of banishment.E. E. Sheng - forthcoming - Law and Philosophy:1-26.
    This essay defends the moral permissibility, as a form of punishment, of banishment, namely the exclusion by a state of a citizen from its territory. I begin by outlining the prima facie case for banishment, consider for whom it may be appropriate, and acknowledge constraints on its permissibility. I then defend banishment against the main objections in the literature to banishment or the related measure of denationalization (stripping citizens of their citizenship): impermissible permanency; excessive severity; ineffectiveness; unfairness to those who (...)
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  22. Kant's Mature Theory of Punishment, and a First Critique Ideal Abolitionist Alternative.Benjamin Vilhauer - forthcoming - In Matthew Altman (ed.), Palgrave Kant Handbook.
    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 (...)
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  23. Punishment, Judges and Jesters: A Reply to Nathan Hanna.Bill Wringe - forthcoming - Ethical Theory and Moral Practice.
    Nathan Hanna has recently addressed a claim central to my 2013 article ‘Must Punishment Be Intended to Cause Suffering’ and to the second chapter of my 2016 book An Expressive Theory of Punishment: namely, that punishment need not involve an intention to cause suffering. -/- Hanna defends what he calls the ‘Aim To Harm Requirement’ (AHR), which he formulates as follows. AHR: ‘an agent punishes a subject only if the agent intends to harm the subject’ (Hanna 2017 p969). I’ll try (...)
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  24. Outcome Effects, Moral Luck and the Hindsight Bias.Markus Kneer & Iza Skoczeń - 2023 - Cognition 232.
    In a series of ten preregistered experiments (N=2043), we investigate the effect of outcome valence on judgments of probability, negligence, and culpability – a phenomenon sometimes labelled moral (and legal) luck. We found that harmful outcomes, when contrasted with neutral outcomes, lead to increased perceived probability of harm ex post, and consequently to increased attribution of negligence and culpability. Rather than simply postulating a hindsight bias (as is common), we employ a variety of empirical means to demonstrate that the outcome-driven (...)
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  25. Criminal Proof: Fixed or Flexible?Lewis Ross - 2023 - Philosophical Quarterly:1-23.
    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, (...)
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  26. Criminal Proof: Fixed or Flexible?Lewis Ross - 2023 - The Philosophical Quarterly.
    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, (...)
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  27. The Silent Exception: Hunger-Striking and Lip-Sewing.Banu Bargu - 2022 - In Rick Elmore & Ege Selin Islekel (eds.), The Biopolitics of Punishment: Derrida and Foucault. Northwestern University Press.
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  28. Precis of Rejecting Retributivism: Free Will, Punishment, and Criminal Justice.Gregg D. Caruso - 2022 - Journal of Legal Philosophy 2 (46):120-125.
  29. Retributivism, Free Will Skepticism, and the Public Health-Quarantine Model: Replies to Kennedy, Walen, Corrado, Sifferd, Pereboom, and Shaw.Gregg D. Caruso - 2022 - Journal of Legal Philosophy 2 (46):161-216.
  30. The Inherent Problem with Mass Incarceration.Raff Donelson - 2022 - Oklahoma Law Review 75 (1):51-67.
    For more than a decade, activists, scholars, journalists, and politicians of various stripes have been discussing and decrying mass incarceration. This collection of voices has mostly focused on contingent features of the phenomenon. Critics mention racial disparities, poor prison conditions, and spiraling costs. Some critics have alleged broader problems: they have called for an end to all incarceration, even all punishment. Lost in this conversation is a focus on what is inherently wrong with mass incarceration specifically. This essay fills that (...)
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  31. Natural Punishment.Raff Donelson - 2022 - North Carolina Law Review 100 (2):557-600.
    A man, carrying a gun in his waistband, robs a food vendor. In making his escape, the gun discharges, critically injuring the robber. About such instances, it is common to think, “he got what he deserved.” This Article seeks to explore cases like that—cases of “natural punishment.” Natural punishment occurs when a wrongdoer faces serious harm that results from her wrongdoing and not from anyone seeking retribution against her. The Article proposes that U.S. courts follow their peers and recognize natural (...)
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  32. How Can Punishment be Justified? On Kant's Retributivism.Guus Duindam - 2022 - Philosophical Thought: Across Cultures and Through the Ages.
    In this brief chapter aimed at undergraduates, I examine theories of punishment and provide an introduction to Kant's retributivism.
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  33. Posthuman and Postanimal Futures, or The Possibilities of a Deconstructive Biopolitics.Rick Elmore - 2022 - In Rick Elmore & Ege Selin Islekel (eds.), The Biopolitics of Punishment: Derrida and Foucault. Northwestern University Press.
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  34. The biopolitics of punishment: Derrida and Foucault.Rick Elmore & Ege Selin Islekel (eds.) - 2022 - Evanston, Illinois: Northwestern University Press.
    The Biopolitics of Punishment marks a new chapter in the long-standing debate between Jacques Derrida and Michel Foucault. The essays collected in this volume chart the undertheorized dialogue between the two philosophers on questions of life, death, punishment, power, and resistance.
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  35. Aprimoramento das práticas punitivas e prevenção distal do crime: uma alternativa ao ceticismo sobre a responsabilidade moral.Marcelo Fischborn - 2022 - Princípios 29 (59).
    Resumo: Em décadas recentes, a investigação filosófica sobre a responsabilidade moral e o livre-arbítrio, que por muito tempo foi vista como um empreendimento principalmente teórico, passou a também incluir preocupações de tipo mais prático. Essa mudança é bem ilustrada pela proposta cética desenvolvida por autores como Derk Pereboom e Gregg Caruso. Seus trabalhos não apenas negam que sejamos agentes livres e moralmente responsáveis (em um sentido específico dos termos em questão), mas também defendem reformas na maneira como a responsabilização é (...)
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  36. The Real-Life Issue of Prepunishment.Preston Greene - 2022 - Social Theory and Practice 48 (3):507-523.
    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 (...)
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  37. Punitive intent.Nathan Hanna - 2022 - Philosophical Studies 179 (2):655 - 669.
    Most punishment theorists seem to accept the following claim: punishment is intended to harm the punishee. A significant minority of punishment theorists reject the claim, though. I defend the claim from objections, focusing mostly on recent objections that haven’t gotten much attention. My objective is to reinforce the already strong case for the intentions claim. I first clarify what advocates of the intentions claim mean by it and state the standard argument for it. Then I critically discuss a wide variety (...)
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  38. Fearless Lives: Parrhesia in a Biopolitical Frame.Sid Hansen - 2022 - In Rick Elmore & Ege Selin Islekel (eds.), The Biopolitics of Punishment: Derrida and Foucault. Northwestern University Press.
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  39. What is the Incoherence Objection to Legal Entrapment?Daniel J. Hill, Stephen K. McLeod & Attila Tanyi - 2022 - Journal of Ethics and Social Philosophy 22 (1):47-73.
    Some legal theorists say that legal entrapment to commit a crime is incoherent. So far, there is no satisfactorily precise statement of this objection in the literature: it is obscure even as to the type of incoherence that is purportedly involved. (Perhaps consequently, substantial assessment of the objection is also absent.) We aim to provide a new statement of the objection that is more precise and more rigorous than its predecessors. We argue that the best form of the objection asserts (...)
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  40. Public Reason and the Justification of Punishment.Zachary Hoskins - 2022 - Criminal Justice Ethics 41 (2):121-41.
    Chad Flanders has argued that retributivism is inconsistent with John Rawls’s core notion of public reason, which sets out those considerations on which legitimate exercises of state power can be based. Flanders asserts that retributivism is grounded in claims about which people can reasonably disagree and are thus not suitable grounds for public policy. This essay contends that Rawls’s notion of public reason does not provide a basis for rejecting retributivist justifications of punishment. I argue that Flanders’s interpretation of public (...)
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  41. A REGULAÇÃO DO LINCHAMENTO NO DIREITO ROMANO ANTIGO: UM ESTUDO JURÍDICO-ANTROPOLÓGICO DO ARTIGO 9º DA TÁBUA III DAS LEIS DAS XII TÁBUAS.Wilson Franck Junior & José Willy Gomes Gadelha - 2022 - O XII Congresso Internacional de Ciências Criminais da PUCRS.
    RESUMO Versa o presente artigo sobre a regulação do linchamento no Direito Romano do período antigo, em especial sobre o artigo 9º da Tábua III das Leis das XII Tábuas. A partir de uma metodologia de análise qualitativa, revisão bibliográfica e interpretação textual, os autores objetivam ampliar a visão tradicional sobre o linchamento, compreendendo a institucionalização de sua prática no Direito Romano e sua função no contexto de formação da cultura jurídica do período antigo. A hipótese de trabalho é a (...)
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  42. Working Document on Penal Laws' Reforms in India.Deepa Kansra - 2022 - Lex Quest Foundation's Working Document on Penal Laws' Reforms in India.
    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 (...)
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  43. From the Will to Race to Hygienic Feminism: Race, State, Habit.Tamsin Kimoto - 2022 - In Rick Elmore & Ege Selin Islekel (eds.), The Biopolitics of Punishment: Derrida and Foucault. Northwestern University Press.
  44. Reasonableness on the Clapham Omnibus: Exploring the outcome-sensitive folk concept of reasonable.Markus Kneer - 2022 - In P. Bystranowski, Bartosz Janik & M. Prochnicki (eds.), Judicial Decision-Making: Integrating Empirical and Theoretical Perspectives. Springer Nature. pp. 25-48.
    This paper presents a series of studies (total N=579) which demonstrate that folk judgments concerning the reasonableness of decisions and actions depend strongly on whether they engender positive or negative consequences. A particular decision is deemed more reasonable in retrospect when it produces beneficial consequences than when it produces harmful consequences, even if the situation in which the decision was taken and the epistemic circumstances of the agent are held fixed across conditions. This finding is worrisome for the law, where (...)
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  45. Counting Heads: Reason, the Human, and Capital Punishment.María de la Cruz Salvador López - 2022 - In Rick Elmore & Ege Selin Islekel (eds.), The Biopolitics of Punishment: Derrida and Foucault. Northwestern University Press.
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  46. A Reconciliation Theory of State Punishment: An Alternative to Protection and Retribution.Thaddeus Metz - 2022 - Royal Institute of Philosophy Supplement 91:119-139.
    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 (...)
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  47. Why Reconciliation Requires Punishment but Not Forgiveness.Thaddeus Metz - 2022 - In Krisanna Scheiter & Paula Satne (eds.), Conflict and Resolution: The Ethics of Forgiveness, Revenge, and Punishment. Springer. pp. 265-281.
    Adherents to reconciliation, restorative justice, and related approaches to dealing with social conflict are well known for seeking to minimize punishment, in favor of offenders hearing out victims, making an apology, and effecting compensation for wrongful harm as well as victims forgiving offenders and accepting their reintegration into society. In contrast, I maintain that social reconciliation and similar concepts in fact characteristically require punishment but do not require forgiveness. I argue that a reconciliatory response to crime that includes punitive disavowal (...)
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  48. How Much Punishment Is Deserved? Two Alternatives to Proportionality.Thaddeus Metz & Mika’il Metz - 2022 - Philosophies 7 (2):1-13.
    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 (...)
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  49. Biopolitics and the Politics of Sacrifice: Derrida on Life, Life Death, and the Death Penalty.Michael Naas - 2022 - In Rick Elmore & Ege Selin Islekel (eds.), The Biopolitics of Punishment: Derrida and Foucault. Northwestern University Press.
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  50. Making Die or Letting Die: Derrida, Foucault, and the Refugee Crisis.Kelly Oliver - 2022 - In Rick Elmore & Ege Selin Islekel (eds.), The Biopolitics of Punishment: Derrida and Foucault. Northwestern University Press.
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