Retributivist approaches to the philosophy of punishment are usually based on certain claims related to moral desert. I focus on one such principle:Censuring Principle : There is a moral reason to censure guilty wrongdoers aversively.Principles like CP are often supported by the construction of examples similar to Kant’s ‘desert island’. These are meant to show that there is a reason for state officials to punish deserving wrongdoers, even if none of the familiar goals of punishment, such as deterrence, will be (...) achieved. When suitable variants of such examples are presented, however, it is evident that there cannot be much reason to punish such wrongdoers, even if there is some. The same problem besets claims that there is intrinsic value in the suffering of wrongdoers, or that wrongdoers deserve to suffer. All such claims are relatively weak normatively. (shrink)

In this article, I argue that Michael Moore’s (1997), and other similar formulations of desert retributivism – viz., the theory that holds punishment to be justified because of the deserved suffering it imposes on guilty offenders – are epistemically problematic. The argument draws on John Dewey’s inchoate critique of retribution, and on Dewey’s more general contention that the justification of ethical judgments and principles proceeds ex post – viz., that it depends on the experiences elicited by acting on those judgments (...) and principles. Based on Dewey’s ex post take on justification, I more specifically argue that, given its commitment to moral naturalism and to coherentism, Moore’s version of desert retributivism is epistemically unwarranted. This is because we have evidentially grounded reasons to think that many of the retributive judgments that underlie the principle of retributive justice are not clearly supported ex post in the relevant, desert retributivist sense. (shrink)

Numerous retributivists hold that deserved punishment has intrinsic value. A number of puzzles regarding that claim are identified and discussed. An alternative, more Kantian account of intrinsic value is then identified and the ways in which legal punishment might be understood to cohere with it are explored. That account focuses on the various ways in which legal punishment might be persons-respecting. It is then argued that this Kantian account enables us to solve or evade the puzzles generated by the other (...) intrinsic value account. (shrink)

This paper will in good part concern six arguments taken as making up what is called the New Retributivism. It will also have to do with a seventh retributivist argument, and with the unexamined idea that reflection on punishment can lead a life of its own, independently of political philosophy. Both that idea and the arguments bear on the main question of whether punishment in our societies is right or wrong. It is a question not worn to a frazzle, as (...) is the one of how it is that punishment is right, which piously presupposes that it is. My answer to the impious question gets very little wear in this reactionary and, as it sometimes seems, vengeful time. For a particular reason, it will have to go undefended here. (shrink)

This paper will in good part concern six arguments taken as making up what is called the New Retributivism. It will also have to do with a seventh retributivist argument, and with the unexamined idea that reflection on punishment can lead a life of its own, independently of political philosophy. Both that idea and the arguments bear on the main question of whether punishment in our societies is right or wrong. It is a question not worn to a frazzle, as (...) is the one of how it is that punishment is right, which piously presupposes that it is. My answer to the impious question gets very little wear in this reactionary and, as it sometimes seems, vengeful time. For a particular reason, it will have to go undefended here. (shrink)

It is customary to remark, in writings on retributivism, that the meaning of the term is so diffuse and variably applied that there is no one concept or justificatory principle picked out by the term. Cottingham identified 9 different ideas captured by the term retributivism, and a similar paper could today no doubt identify as many again. This edited volume of essays on retributivism does justice to that customary remark, by bringing together a range of writings on retributivism many of (...) which present quite different ways of construing the core of retributivist thinking, the virtues of it, and its role in criminal justice.The book is organised around three themes: the first part entitled ‘Conceptualizing Retributivism’, the second ‘Philosophical Perspectives on Retributivism’, and the third ‘Retributivism and Policy’. In the following I provide an overview of the chapters, before making some general remarks on the emerging themes of the edited collec .. (shrink)

Many philosophers claim that it is always intrinsically good when people get what they deserve and that there is always at least some reason to give people what they deserve. I highlight problems with this view and defend an alternative. I have two aims. First, I want to expose a gap in certain desert-based justifications of punishment. Second, I want to show that those of us who have intuitions at odds with these justifications have an alternative account of desert at (...) our disposal – one that may lend our intuitions more credibility. (shrink)

I’ll raise a problem for Retributivism, the view that legal punishment is justified on the basis of desert. I’ll focus primarily on Mitchell Berman’s recent defense of the view. He gives one of the most sophisticated and careful statements of it. And his argument is representative, so the problem I’ll raise for it will apply to other versions of Retributivism. His insights about justification also help to make the problem particularly obvious. I’ll also show how the problem extends to non-retributive (...) justifications of punishment. I’ll argue that Berman’s argument makes a questionable assumption about the standard of justification that justifications of punishment must meet to be successful. If we think about what it takes to justify punishment and reflect on the intuitions that retributivists appeal to, it turns out that the intuitions aren’t obviously up to the task. (shrink)

Many philosophers think that, when someone deserves something, it’s intrinsically good that she get it or there’s a non-instrumental reason to give it to her. Retributivists who try to justify punishment by appealing to claims about what people deserve typically assume this view or views that entail it. In this paper, I present evidence that many people have intuitions that are inconsistent with this view. And I argue that this poses a serious challenge to retributivist arguments that appeal to desert.

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)

Trends in the history of social science dedicated to the study of crime and punishment are presented as a case study supporting F.A. Hayek's theory of social change. Designing effective social institutions and public policies first requires an accurate vision of how society operates. An accurate model of society further requires scientific methods uniquely suited for the study of human beings as purposeful agents and the study of human institutions as complex social phenomena. If guided by faulty methods, theories are (...) inaccurate and policy outcomes veer from their intentions. Hayek termed such outcomes "abuses of reason". Aiming to replicate the objectivity of physical sciences via formal modeling and statistical measurement, economists throughout the 20th century imposed an excessively technical vision of human decision-making. Policy failures and social problems resulted. This paper argues that the historical trends of applied social science dedicated to crime and punishment can be understood similarly. Formal modeling and statistical measurement continuously displaced methods more attuned to human intentionality and social complexity. In result, amidst a long-run history of intellectual and political change, US law enforcement and criminal punishment policies became technocratic, and outcomes became disjointed from their stated intentions to promote social order and welfare. (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)