Nathan Hanna has recently argued against a position I defend in a 2013 paper in this journal and in my 2016 book on punishment, namely that we can punish someone without intending to harm them. In this discussion note I explain why two alleged counterexamples to my view put forward by Hanna are not in fact counterexamples to any view I hold, produce an example which shows that, if we accept a number of Hanna’s own assumptions, punishment does not require (...) an intention to harm, and discuss whether a definition and counter-example approach is the best way to proceed in the philosophy of punishment. I conclude with a brief exegetical discussion of H.L.A Hart’s Prolegomenon to the Principles of Punishment. (shrink)

It has recently been suggested that the fact that punishment involves an intention to cause suffering undermines expressive justifications of punishment. I argue that while punishment must involve harsh treatment, harsh treatment need not involve an intention to cause suffering. Expressivists should adopt this conception of harsh treatment.

Etiquette and other merely formal normative standards like legality, honor, and rules of games are taken less seriously than they should be. While these standards are not intrinsically reason-providing in the way morality is often taken to be, they also play an important role in our practical lives: we collectively treat them as important for assessing the behavior of ourselves and others and as licensing particular forms of sanction for violations. This chapter develops a novel account of the normativity of (...) formal standards where the role they play in our practical lives explains a distinctive kind of reason to obey them. We have this kind of reason to be polite because etiquette is important to us. We also have this kind of reason to be moral because morality is important to us. This parallel suggests that the importance we assign to morality is insufficient to justify it being substantive. (shrink)

This paper explores what a Rule Consequentialist of Brad Hooker's sort can and should say about normative rea- sons for action. I claim that they can provide a theory of reasons, but that doing so requires distinguishing dif- ferent roles of rules in the ideal code. Some rules in the ideal code specify reasons, while others perform differ- ent functions. The paper also discusses a choice that Rule Consequentialists face about how exactly to specify rea- sons. It ends by comparing (...) the theory of reasons offered by Rule Consequentialism with the theory offered by Act Consequentialism, noting that Rule Consequentialism seems better able to explain moral constraints. (shrink)

Punishment involves deliberating harming individuals. How, then, if at all, is it to be justified? This, the first of three papers on the philosophy of punishment (see also 'Punishment: Nonconsequentialism' and 'Punishment: The Future'), examines attempts to justify the practice or institution according to its consequences. One claim is that punishment reduces crime, and hence the resulting harms. Another is that punishment functions to rehabilitate offenders. A third claim is that punishment (or some forms of punishment) can serve to make (...) restitution to victims, and a fourth is that it can strengthen social values. The paper examines these claims, and finally considers pluralist theories which combine retributive and harm-reductive or utilitarian considerations. (Retributive theories are examined in their own right in 'Punishment: Nonconsequentialism'.). (shrink)

This paper tackles the question whet her we should punish a remorseful offender. Traditional retributive and consequentialist theories on punishment are struggling with the question of the justification of punishment, but I think a more basic question needs to be solved first; namely, how can we interpret the practice of punishment. I state that a theory of symbolic restoration can help us to understand the meaning of this practice. A theory of symbolic restoration depends on an expressivist account of punishment, (...) like Joel Feinberg's. Expressivism gives us an insight into the importance of the feeling of moral condemnation and it is this feeling that gives rise to the longing for punishment and remorse. Because of moral condemnation after a crime we ask for punishment and expect some kind of remorse. The question is whether punishment can be exchanged for remorse and I argue that in certain cases it cannot. The punishment of a remorseful offender is, I argue, – in certain cases – justified. (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)

Many contemporary philosophers writing on punishment seek to show that much of the dispute between retributionists and utilitarians springs from a failure on the part of both parties to elucidate the concept of punishment. The writers are usually utilitarians who seek to show that what is true in the retributive theory is simply a point about the concept of punishment, and that for the rest, the morality of punishment is to be explained in terms of the utilitarian theory. Those who (...) attempt to destroy the retributive theory by reducing its element of truth to a mere conceptual point about the concept of punishment, seek to argue that the notion of being guilty of an offence is part of the concept of punishment. Against this kind of approach, I wish to consider whether a general theory of punishment is possible, and if so, what are its basic concepts—punishment, deserving of punishment, deserved, or justifiable punishment—and how they are to be elucidated. I shall be concerned to argue that much contemporary writing on punishment commits the Platonic fallacy of assuming that there is a single, core, paradigm use of ‘punishment’ which is to be found by elucidating the concept of legal punishment. (shrink)

Abstract:I argue that, since the legal order is a public good, an act of legal punishment may be viewed as the imposition of a kind of tax, which I label ‘a quasi-tax’. Once punishment is viewed as a quasi-tax, the traditionally opposed approaches to punishment may be reconciled, as both utility and retribution jointly justify an act of legal punishment. I discuss objections to my argument and I reply to them.

Deferred prosecution agreements (DPAs) are legal means, alternative to trial, for the resolution of criminal business cases. Although DPAs are increasingly used in the US and are spreading to other jurisdictions, the ethics of DPAs has hardly been subjected to critical scrutiny. We use a multidisciplinary approach straddling the line between philosophy and law to examine the ethics of DPAs used to resolve cases of multinational enterprises’ (MNEs) foreign corruption. Deontologically, we argue that the normativity of DPAs raises critical concerns (...) related to the notion of justice as punishment, with serious cases of international corruption resolved with minimal retribution for offending MNEs. Taking a utilitarian ethical perspective, we also evaluate the effect of DPAs on MNEs’ tendency to self-regulate or re-offend. Our conclusion, supported by critical analysis of the juridical literature and case evidence on MNEs’ recidivism, is that DPAs do not foster ethical behavior. (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)

Taking its cue from Augustine’s hesitancy to punish, this article develops an account of punishment as an exercise in Christian subjectivity, understanding by the latter term ‘self-knowledge’ and ‘being subject to another’s control.’ Framed in terms of the sacrament of reconciliation and mediated through the Late Medieval Ecclesiastical Courts, the explicit contours of this Christian subjectivity gradually eroded as secular practices and theories (retribution, rehabilitation, deterrence, and restorative) developed during the nineteenth and twentieth centuries. In the process, the rehabilitative ethos (...) that this subjectivity upheld was lost also. Retrieving it is essential for understanding contemporary punishment from a Christian perspective. (shrink)

Resumo: O objetivo central deste artigo é procurar compreender a concepção normativa híbrida usada por John Rawls para justificar moralmente a punição legal, fazendo uso de um recurso consequencialista, a fim de justificar a instituição da punição, isto é, a eficácia social e um recurso retributivista para justificar os atos punitivos particulares, ou seja, a culpa do agente. Analisaremos, especialmente, o artigo "Two Concepts of Rules" e o livro A Theory of Justice. Defenderemos que Rawls faz uso de uma visão (...) liberal de punição, bem como utiliza o método de equilíbrio reflexivo, estipulando uma regra para aprovação da punição legal, a partir da coerência com nossos juízos morais ponderados, o que parece reconciliar a justiça retributiva com a justiça distributiva.2: The principal aim of this paper is to understand the hybrid normative concept used by John Rawls to morally justify legal punishment. Rawls uses a consequentialist argument - that is, social efficacy - to justify the institution of punishment, and a retributivist argument - that is, the guilt of the agent - to justify particular acts of punishment. The article "Two Concepts of Rules" and the book A Theory of Justice are analyzed. We argue that Rawls uses a liberal view of punishment, as well as the method of reflective equilibrium, stipulating a rule for approval of legal punishment based on its coherence with our considered moral judgments; this seems to reconcile retributive justice with distributive justice. (shrink)

Philosophy Compass, Volume 17, Issue 5, May 2022.

In this article, I argue that even if we hold that at least some paternalistic behaviour is impermissible when directed towards innocent persons, in certain cases, the same behaviour is permissible when directed towards criminal offenders. I also defend the claim that in some cases it is morally preferable to behave paternalistically towards offenders as an alternative to traditional methods of punishment. I propose that the reason paternalistic behaviour is sometimes permissible towards an offender is the same reason that inflicting (...) intentional harm on an offender is permissible – namely, that it is sometimes a morally justified method of punishing an offender for his wrongdoing. (shrink)

Incarceration remains the foremost form of sentence for serious crimes in Western democracies. At the same time, the management of prisons and of the prison population has become a major real-world challenge, with growing concerns about overcrowding, the offenders’ well-being, and the failure of achieving the distal desideratum of reduced criminality, all of which have a moral dimension. In no small part motivated by these practical problems, the focus of the present article is on the ethical framework that we use (...) in thinking about and administering criminal justice. I start with an analysis of imprisonment and its permissibility as a punitive tool of justice. In particular, I present a novel argument against punitive imprisonment, showing it to fall short in meeting two key criteria of just punishment, namely (i) that the appropriate individual is being punished, and (ii) that the punishment can be adequately moderated to reflect the seriousness of the crime. The principles I argue for and that the aforementioned analysis brings to the fore, rooted in the sentient experience, firstly of victims, and not only of victims but also of the offenders as well as the society at large, then lead me to elucidate the broader framework of jurisprudence that I then apply more widely. Hence, while rejecting punitive imprisonment, I use its identified shortcomings to argue for the reinstitution of forms of punishment that are, incongruently, presently not seen as permissible, such as corporal punishment and punishments dismissed on the basis of being seen as humiliating. I also present a novel view of capital punishment, which, in contradiction to its name, I reject for punitive aims, but which I argue is permissible on compassionate grounds. (shrink)

In the dissertation, I consider the permissibility of a familiar set of responses to wrongdoing in our interpersonal relationships—those responses that constitute the imposition of some cost upon the wrongdoer. Some of these responses are, I argue, properly considered punishing, and some of these instances of punishing are in turn permissible. Punishment as I understand it is a broad phenomenon, common in and to all human relationships, and not exclusively or even primarily the domain of the state. Personal interactions expressive (...) of wrong-reactive attitudes like disappointment, anger, and guilt will sometimes constitute punishment so understood. I consider childhood punishment, self-punishment, and punishment between friends, concluding that punishment in the context of our personal relationships may sometimes be appropriate where undertaken not for the sake of deterrence nor of retributive justice, but for the sake of the aims constitutive of the relationship in which it occurs. (shrink)