Retributivism is often explicitly or implicitly assumed to be compatible with the harm principle, since the harm principle (in some guises) concerns the content of the criminal law, while retributivism concerns the punishment of those that break the law. In this essay I show that retributivism should not be endorsed alongside any version of the harm principle. In fact, retributivists should reject all attempts to see the criminal law only through (other) person-affecting concepts or “grievance” morality, since they should endorse (...) the criminalization of conduct that is either purely self-harming or good for somebody and bad for nobody (i.e., Pareto improvements). (shrink)

Brian Barry's Justice as Impartiality is an important book. One of its contributions to the discipline is a characteristically clear presentation of what follows if one accepts a commitment to equality, and the reasonableness of continuing and profound disagreements about the nature of the good life. I take the argument of Justice as Impartiality to be an important next step in the attempt to give an account of the content of justice which is impartial, fair, or neutral between conceptions of (...) the good, and engaging with it has the great advantage that many of the criticisms that can be made of Barry apply to other liberal contractualist theories of social justice. It is faintly ironic that it is one of Barry's great virtues, his clarity, that makes it easier to see the problems inherent in the attempt to complete the impartialist project. I have not attempted below to offer a systematic summary and critique of Barry's book or any particular section of it. Instead I have opted to try to engage with the ideas that drive it at a more fundamental level. (shrink)

The article examines the relationship between a wrongdoer and his victim. Based on this examination, a justification for criminal punishment is proposed. It is argued that crime violates thea prioriequality of constituent boundaries and of infinite human value between the wrongdoer and the victim. Criminal punishment re-equalizes respective boundaries and infinite human value. To develop this argument, the article observes how subject-subject boundaries are essential for the formation of separateness between subjects - separateness which is recognized and acknowledged by them (...) in a cooperative process. The article further discusses the value of boundaries and the significance of theira prioriequality in every human relationship. It then shows how crime, which is intrusion of the victim’s boundaries, works to demolish the victim’s self-recognizing separateness and hence to create inequality in the parties’ value. Last, the article demonstrates that only punishment can reset the relationship between the parties and re-equate their (still infinite) human value in the relationship. (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)

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)

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)

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)

Neither currently prevalent justifications of punishment, nor a modified, contractarian version of a justification that I develop here, can be used to justify actual state punishment, even if some forms of punishment may remain legitimate. I argue in this thesis that alternative punitive practices such as developed by some Canadian aboriginal communities are more likely to conform to the criteria of punitive justice developed by standard justifications, as well as being more likely to conform to criteria developed in feminist ethics.