Desert plays an important role in most contemporary theories of retributive justice, but an unimportant role in most contemporary theories of distributive justice. Saul Smilansky has recently put forward a defense of this asymmetry. In this study, I argue that it fails. Then, drawing on an argument of Richard Arneson’s, I suggest an alternative consequentialist rationale for the asymmetry. But while this shows that desert cannot be expected to play the same role in distributive justice that it can play in (...) retributive justice, it does not fully vindicate the asymmetry, since desert can still play an important role in the former. (shrink)

ABSTRACT In this article I explore whether liberal retributive justice should be conceived of either individualistically or holistically. I critically examine the individualistic account of retributive justice and suggest that the question of retribution – i.e., whether and when punishment of an individual is compatible with just treatment of that individual – must be answered holistically. By resorting to the ideal of sensitive reasons, a model of legitimacy at the basis of our best normative models of democracy, the article argues (...) that in modern liberal democracies, punishment of an offender A for f is compatible with just treatment of A only if punishment of an individual for f can be legitimate in A's and A's fellow citizens' eyes. Only once retributive justice is understood in this holistic fashion the imposition of punishment can be made compatible with just treatment of individuals. RESUMO Neste artigo, exploro se justiça retributiva liberal deve ser concebida ou individualista ou de forma holística. Examino criticamente a conta individualista da justiça retributiva e sugiro que a questão da retribuição – quando a punição de um indivíduo é compatível com o tratamento justo desse indivíduo – deve ser respondida de forma holística. Recorrendo ao ideal de razões sensíveis, um modelo de legitimidade na base dos nossos melhores modelos normativos de democracia, argumento que, nas democracias liberais modernas, a punição de um delinquente A para φ é compatível com o tratamento justo de A só se punição de um indivíduo para φ pode ser legítimo aos olhos de A e seus concidadãos. Uma vez que a justiça retributiva é entendida dessa forma holística, a imposição da pena pode ser compatível com o tratamento justo de indivíduos. (shrink)

The traditional distinction between retributive and distributive justice misconstrues the place of the criminal law in modern regulatory states. In the context of the regulatory state, the criminal law is a coercive rule-enforcing institution – regardless of whether it also serves the ends of retributive justice. As a rule-enforcing institution, the criminal law is deeply implicated in stabilizing the institutions and legal rules by means of which a state creates and allocates social advantage. As a coercive institution, the criminal law (...) requires justification as an instance of legitimate state authority. The operation of criminal justice institutions should therefore not be evaluated by reference to a distinct set of criteria, but should be evaluated by the same criteria that apply to coercive public institutions generally. (shrink)

One reason that many philosophers are reluctant to seriously contemplate the possibility that we lack free will seems to be the view that we must believe we have free will if we are to regard each other as persons in the morally deep sense—the sense that involves deontological notions such as human rights. In the contemporary literature, this view is often informed by P.F. Strawson's view that to treat human beings as having free will is to respond to them with (...) the reactive attitudes, and that if we suspend the reactive attitudes we can only regard human beings as objects to be manipulated in the service of social goals. This purported implication of suspending the reactive attitudes has persuaded many philosophers that we cannot truly treat human beings as persons without assuming that they have free will. I argue that this line of thinking is misguided. I think Strawson is correct to worry that the consequentialism he sees as implicit in the objective attitude undermines our ability to treat each other as persons. But I think it is a mistake to accept that we must maintain the reactive attitudes, or any other attributions of free will or moral responsibility, to avoid a depersonalizing slide into consequentialism. Kant's idea of treating people as autonomous ends in themselves, rather than as mere means to ends, provides a compelling analysis of what it means to treat humans as persons, and I argue that there are ways of interpreting Kant's idea which do not involve reactive attitudes or any other attributions of free will or moral responsibility. -/- . (shrink)