What is the clean hands defense (CHD) normatively about? Courts designate court integrity as the CHD's primary norm. Yet, while the CHD may at times further court integrity, it is not fully aligned with court integrity. In addition to occasionally instrumentally furthering certain goods (e.g., court legitimacy, judge integrity, deterrence), the CHD embodies two judicially undetected norms: retribution and tu quoque (“you too!”). Tu quoque captures the moral intuition that wrongdoers are in no position to blame, condemn, or make claims (...) on others who are guilty of similar or related wrongdoing. The CHD shares the structure of the tu quoque: both are doctrines of standing that deflate the illocutionary force (and not the truth-value) of normative speech acts directed against wrongdoers by those guilty of similar or connected wrongdoing. The CHD also exhibits retributive logic: it sanctions plaintiffs by reason of their wrongdoing and manifests the retributive principle that “punishment must fit the crime.” -/- Copyright © Cambridge University Press 2011. Also available at http://journals.cambridge.org/action/displayJournal?jid=LEG. (shrink)

Ratio Juris, Volume 34, Issue 4, Page 293-314, December 2021.

Many philosophers and legal scholars believe that the principle of retribution can be employed as a basis for respecting the offender as a person and for imposing relatively soft sentences. This belief is inspired, at least to a certain extent, by the penal philosophy of Kant and Hegel. My aim in this article is to question this widely held belief, with my contention being that retributivists locate the basis of these normative considerations in the wrong place. It is not the (...) application of the principle of retribution that makes systems of criminal law fair and restrained, but rather the other way around: Only by restricting the application of the principle of retribution in various ways can we arrive at a system of penal law that is reasonable and just. These restrictions themselves are not retributive in nature, but are intended to keep the principle of retribution in check. To substantiate these claims, I discuss the views of an older generation of philosophers and scientists, specifically those of Sidgwick, Durkheim, Malinowski, and Piaget, and hold that these provide a fruitful basis for a better understanding of the principle of retribution. In the second part of the article, I investigate how this alternative understanding relates to the principles of proportionality and mens rea, while also making some clarifying remarks about the issue of moral luck. (shrink)

Retributivism may seem wholly uninterested in the fit between penal policy and public opinion, but on one rendition of the theory, here called ‘popular retributivism,’ deserved punishments are constituted by the penal conventions of the community. This paper makes two claims against this view. First, the intuitive appeal of popular retributivism is undermined once we distinguish between context sensitivity and convention sensitivity about desert. Retributivism in general can freely accept context sensitivity without being committed to the stronger notion of convention (...) sensitivity. Second, it is not obviously a merit of popular retributivism that it admits a gradual lowering of punishments by softening public opinion. Retributivists have reason to be skeptical of softening public opinion if it comes at the price of undermining the extent to which offenders are thought to deserve censure. In sum, in this paper, I argue that there are ways of making retributivism sensitive to public opinion without arriving at the conclusion that popular penal conventions should govern retributive justice itself. (shrink)

One prominent contemporary retributivist theory is built on the notion that crime yields an “unfair advantage” over law-abiding citizens which punishment removes or nullifies. Michael Davis has defended this theory by constructing a market model of “unfair advantage” that he contends answers critics' objections to the retributivist enterprise. I seek to demonstrate the inadequacy of Davis's approach, arguing in particular that the market model rests on an incoherent notion of “demand” and would not, even if coherent, link “unfair advantage” to (...) the seriousness of crimes in any acceptable fashion. The salience of traditional objections to retributivism is thus unaffected by Davis's theory. (shrink)

Those who commit crime on a grand scale, numbering their victims in the thousands, seem to pose a special problem both for consequentialist and for non-consequentialist theories of punishment, a problem the International Criminal Court makes practical. This paper argues that at least one non-consequentialist theory of punishment, the fairness theory, can provide a justification of punishment for great crimes. It does so by dividing the question into two parts, the one of proportion which it answers directly, and the other (...) of ‘anchoring points’ which it assigns to a broader theory of enforcement (which may have a non-consequentialist or consequentialist version). (shrink)

This paper describes developments in punishment theory since the middle of the twentieth century. After the mid–1960s, what Stanley I. Benn called “preventive theories of punishment”—whether strictly utilitarian or more loosely consequentialist like his—entered a long and steep decline, beginning with the virtual disappearance of reform theory in the 1970s. Crowding out preventive theories were various alternatives generally (but, as I shall argue, misleadingly) categorized as “retributive”. These alternatives include both old theories (such as the education theory) resurrected after many (...) decades in philosophy’s graveyard and some new ones (such as the fairness theory). Only in the last decade or so have new vares o “consequentialism” appeared to dilute a debate among philosophers that had become almost entirely about “retributivism”. I shall describe this trend in more detail. The description will be less an update of my 1990 survey than a rethinking of it. The conclusion I draw from this rethinking is that we need to drop the utilitarian–retributivist (and nonconsequentialist–nonconsequentialist) distinction in favor of one sorting punishment theories according to whether they rely in part on empirical considerations (externalist theories) or instead rely (almost) entirely on conceptual relations (internalist theories). (shrink)

The proportionality standard demands a meaningful link between the severity of crimes and the punishments received for them. This article investigates the compatibility between this philosophical d...

A rule- utilitarian appraisal of criminal law requires that the total system, including punishments, is justified only if it will expectably maximize public benefit, including its stigmatizing some behaviors as "offenses" and its prescribed punishment of these, such as imprisonment, with (possible) deterrent effects. In view of the paucity of evidence about the deterrent effect of prison sentences, some changes seem to be in order: reduction in the length of incarceration, replacement of prison by fines or restrictions on the convicted (...) such as house arrest for many hours of a day, intensive supervision, required community service (say thirty hours in place of a month in prison), enrollment in a drug program or therapy in the case of sex offenses, and so on. An evaluation of such proposals should be based on statistics and the psychology of criminal behavior. (shrink)

In this paper I defend the view that persons have a claim to deserved treatment, including many forms of punishment, against an objection resting on the principle that it is not possible to have a claim to harmful treatment. I do not challenge this principle, but argue, rather, that the harms wrongdoers typically deserve either (a) are not genuine harms at all (for reasons relevant to their being deserved) or (b) are not relevant to the content of these wrongdoers' claims.

The concept of desert is familiar to everyone. We have all heard that wrongdoers deserve punishment, that the virtuous deserve happiness, that hard workers deserve success, that innocent victims deserve compensation, that everyone deserves an adequate level of medical care, that no one deserves to be born handicapped, and so on. ;From these sayings, it is clear that desert is an evaluative concept. It therefore belongs to the class of concepts that includes rightness, justice, rationality, goodness, beauty, and others. Desert (...) is thus a familiar, evaluative concept. ;It is ironic, then, that desert has not received anything like the amount of philosophical attention enjoyed by the other evaluative concepts that I mentioned. In this dissertation, I focus my attention on desert. ;I begin, in Chapter 1, by trying to explain why desert has been neglected by philosophers. In Chapter 2 I argue that much of the received philosophical wisdom about desert is false. Chapter 3 is dedicated to "institutional" theories of desert. These theories make desert relative to institutional rules or purposes. Chapter 4 explores some views about the purported connection between desert and the emotions. In Chapter 5 I argue that a well-known attempt to justify desert-claims fails, and that this failure is the result of mistaken views about the connections between desert and the concepts of moral obligation and of value. One aim of Chapter 6 is to reveal the defects of some prominent theories of desert of wages. A deeper aim is to expose a fundamental defect in a standard way of looking at desert in general. ;In Chapter 7, I present my own theory of desert. It contains, among other things, a catalogue of bases for desert and an explanation of "all-in desert" in terms of "prima facie desert" and "weight." The structure of my theory of desert is therefore similar to the structure of W. D. Ross's theory of moral rightness. (shrink)