The purpose of this paper is to provide a justification of punishment which can be endorsed by free will skeptics, and which can also be defended against the "using persons as mere means" objection. Free will skeptics must reject retributivism, that is, the view that punishment is just because criminals deserve to suffer based on their actions. Retributivists often claim that theirs is the only justification on which punishment is constrained by desert, and suppose that non-retributive justifications must therefore endorse (...) treating the people punished as mere means to social ends. Retributivists typically presuppose a monolithic conception of desert: they assume that action-based desert is the only kind of desert. But there are also personhood-based desert claims, that is, desert claims which depend not on facts about our actions, but instead on the more abstract fact that we are persons. Since personhood-based desert claims do not depend on facts about our actions, they do not depend on moral responsibility, so free will skeptics can appeal to them just as well as retributivists. What people deserve based on the mere fact of their personhood is to be treated as they would rationally consent to be treated if all they had in view was the mere fact of their personhood. We can work out the implications of this view for punishment by developing a hypothetical consent justification in which we select principles of punishment in the Rawlsian original position, so long as we are careful not to smuggle in the retributivist assumption that it is under our control whether we end up as criminals or as law-abiding citizens once we raise the veil of ignorance. (shrink)

One dark and rainy night, Yuso sexually assaults and tortures Zelan. In escaping from the scene of his crime, he falls heavily and becomes an impotent paraplegic. Instead of treating his fate as divine retribution for his wicked acts, Yuso sees it as sheer bad luck. He shows no remorse for what he has done, and vainly hopes that he will recover his powers, which he now treats as involuntarily hoarded resources to be used on less rainy days. In the (...) presence of others, he pretends that he has turned over a new leaf. He asks for religious and educational books, hoping to make up for his poor education and deprived social background. But he immediately discards them when he is alone in favor of the pornographic magazines which he has bribed a nurse to smuggle in for him. His deception and various obscene acts committed in the hospital are exposed; by the time he comes up for trial, everyone knows that he is still a lustful, sadistic, and unrepentant man. Most retributivists have a sufficient justification for punishing Yuso independently of the social consequences of his punishment. Two features of the case might cause some difficulties. First, Yuso has already experienced considerable suffering and deprivation both before and after his crime, and retributivists might disagree about the relevance of the suffering to his punishment. Secondly, Yuso is unrepentant, and it is unlikely that punishment will change him. This might, as we shall see, create a problem for those who think that the justifying aim of punishment is the moral reform of the offender. (shrink)

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)

Black magic (henceforth BM) is acting in an attempt to harm human beings through supernatural means. Examples include the employment of spells, the use of special curses, the burning of objects related to the purported victim, and the use of pins with voodoo dolls. For the sake of simplicity, we shall focus on attempts to kill through BM. The moral attitude towards BM has not been, as far as we know, significantly discussed in contemporary analytic philosophy. Yet the topic brings (...) up interesting questions and poses challenges, occasionally even reaching the level of paradoxes. Ideas of respecting persons, in particular, will be seen to be challenged by this form of magic. The notion of respecting persons will be treated here broadly and pluralistically. Indeed part of the interest in the discussion will be the unfolding of the diverse ways in which this term should be understood, and the contrasts between its various uses. Often, as we shall see, respect for persons and disrespect for them, in different senses, will co‐exist, and the dilemma will be one where avoiding some forms of disrespect will involve us in disrespect in other senses. (shrink)

A traditional assumption in retributivist thinking is the view that an offender's desert is determined exclusively on the basis of the gravity of the crime committed. However, this assumption has r...

Why is the ethics of punishment an important academic field? The standard answer given by philosophers, legal scholars, and other theorists is that academic engagement in the ethics of punishment is justified by the importance of informing and guiding penal practice. In this article, this view is referred to as the Impact Assumption. The purpose of the article is to consider what this assumption implies for the way research within this field should be conducted. First, I argue that the way (...) research is currently being disseminated, the nature of the research itself, and the lack of interest among legislators and other decision-makers, constitute serious challenges to the satisfaction of the Impact Assumption. Second, I suggest that these challenges can be overcome, but that this will require a significant expansion and reorientation of the entire field. (shrink)

Certainly principles of criminal liability may be understood as rules or norms outlining orders or prohibitions and standing out among other norms with their weight, for legal culture, legal doctrine, etc. In such a classic approach they are norms defining basic rights and obligations in the applicable criminal law. However, is it the only possible and cognitively interesting meaning of the word “principle” in jurisprudence? From the semiotic point of view, they can occur in three forms: special-kind norms, teleological directives, (...) rules which constitute valid performance of conventional activities. In an extra-directival sense these principles may be understood as models-descriptions of shaping the system of criminal law. From a theoretical and practical point of view principles addressed to the legislator are extremely weighty—they can be called rules constructing the system of criminal liability. These all problems are discussed in the article. (shrink)

In Debating Brain Drain, Gillian Brock and Michael Blake both draw on a liberal moral- political foundation to address the issue, but they come to different conclusions about it. Despite the common ground of free and equal persons having a dignity that grounds human rights, Brock concludes that many medical professionals who leave a developing country soon after having received training there are wrong to do so and that the state may place some limits on their ability to exit, whereas (...) Blake infers that there is neither any wrongdoing on their part, nor rightful restrictions placed on them. In this article, rather than sort out which has the better interpretation of what liberalism entails, I consider the medical brain drain in light of an alternative normative framework, one informed by ideals of communion salient in the sub-Saharan moral tradition. I argue that a principle of prizing communal relationships more naturally entails Brock's conclusions than does her appeal to liberalism. (shrink)

Many philosophers think that punishment is intentionally harmful and that this makes it especially hard to morally justify. Explanations for the latter intuition often say questionable things about the moral significance of the intent to harm. I argue that there’s a better way to explain this intuition.

I criticize an increasingly popular set of arguments for the justifiability of punishment. Some philosophers try to justify punishment by appealing to what Peter Strawson calls the reactive attitudes – emotions like resentment, indignation, remorse and guilt. These arguments fail. The view that these emotions commit us to punishment rests on unsophisticated views of punishment and of these emotions and their associated behaviors. I offer more sophisticated accounts of punishment, of these emotions and of their associated behaviors that are consistent (...) with Abolitionism, the view that punishment is unjustified. (shrink)

This paper continues a debate about the following claim: an agent punishes someone only if she aims to harm him. In a series of papers, Bill Wringe argues that this claim is false, I criticize his arguments, and he replies. Here, I argue that his reply fails.

Most punishment theorists seem to accept the following claim: punishment is intended to harm the punishee. A significant minority of punishment theorists reject the claim, though. I defend the claim from objections, focusing mostly on recent objections that haven’t gotten much attention. My objective is to reinforce the already strong case for the intentions claim. I first clarify what advocates of the intentions claim mean by it and state the standard argument for it. Then I critically discuss a wide variety (...) of objections to the claim and to the standard argument for it. (shrink)

I argue that contemporary liberal theory cannot give a general justification for the institution or practice of punishment, i.e., a justification that would hold across a broad range of reasonably realistic conditions. I examine the general justifications offered by three prominent contemporary liberal theorists and show how their justifications fail in light of the possibility of an alternative to punishment. I argue that, because of their common commitments regarding the nature of justification, these theorists have decisive reasons to reject punishment (...) in favor of a non-punitive alternative. I demonstrate the possibility of this alternative by means of a careful examination of the nature of punishment, isolating one essential characteristic—the aim to impose suffering—and showing how this characteristic need not guide enforcement. There is logical space for a forceful and coercive, yet non-punitive method of enforcement. This fact poses difficulties for many classical and contemporary justifications of punishment, but it poses particularly crippling problems for general liberal justifications. (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.

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)

This book is the Studies in G.W.F. Hegel's Philosophy of Right; Hegel's 'elements of the Philosophy of 'right is his last major published statement not only on the philosophy of law but on ethical theory, natural law, social and political theory as well. The studies of Right, Morality, Ethical Life duscuss Hegel's views both historically and systematically, contrubuting to the lively discussions concerning the signifigance of Hegel's view in the present philosophical context. This book is ment for students of Religion/philosophy.

In the chapter entitled ‘Philosophy and the Meaning of Life’ in Robert Nozick’s Philosophical Explanations there is an admonitory passage with many applications. ‘It is a puzzle,’ says Nozick, ‘how so many people, including intellectuals and academics devote enormous energy to work in which nothing of themselves or their important goals shines forth, not even in the way their work is presented. If they were struck down, their children upon growing up and examining their work would never know why they (...) had done it, would never know who it was that did it. They work that way and sometimes live that way, too’. (shrink)

Skepticism about moral responsibility, or what is more commonly referred to as moral responsibility skepticism, refers to a family of views that all take seriously the possibility that human beings are never morally responsible for their actions in a particular but pervasive sense. This sense is typically set apart by the notion of basic desert and is defined in terms of the control in action needed for an agent to be truly deserving of blame and praise. Some moral responsibility skeptics (...) wholly reject this notion of moral responsibility because they believe it to be incoherent or impossible. Others maintain that, though possible, our best philosophical and scientific theories about the world provide strong and compelling reasons for adopting skepticism about moral responsibility. What all varieties of moral responsibility skepticism share, however, is the belief that the justification needed to ground basic desert moral responsibility and the practices associated with it—such as backward-looking praise and blame, punishment and reward (including retributive punishment), and the reactive attitudes of resentment and indignation—is not met. Versions of moral responsibility skepticism have historically been defended by Spinoza, Voltaire, Diderot, d’Holbach, Priestley, Schopenhauer, Nietzsche, Clarence Darrow, B.F. Skinner, and Paul Edwards, and more recently by Galen Strawson, Derk Pereboom, Bruce Waller, Neil Levy, Tamler Sommers, and Gregg D. Caruso. -/- Critics of these views tend to focus both on the arguments for skepticism about moral responsibility and on the implications of such views. They worry that adopting such a view would have dire consequences for our interpersonal relationships, society, morality, meaning, and the law. They fear, for instance, that relinquishing belief in moral responsibility would undermine morality, leave us unable to adequately deal with criminal behavior, increase anti-social conduct, and destroy meaning in life. Optimistic skeptics, however, respond by arguing that life without free will and basic desert moral responsibility would not be as destructive as many people believe. These optimistic skeptics argue that prospects of finding meaning in life or of sustaining good interpersonal relationships, for instance, would not be threatened. They further maintain that morality and moral judgments would remain intact. And although retributivism and severe punishment, such as the death penalty, would be ruled out, they argue that the imposition of sanctions could serve purposes other than the punishment of the guilty—e.g., it can also be justified by its role in incapacitating, rehabilitating, and deterring offenders. (shrink)

Current sentencing practice in England and Wales is incoherent. This stems from the combination of conflicting philosophies of punishment, with no clear method adopted by sentencers in choosing between them. This presents a significant challenge as sentencing can have a profound impact on an offender’s life, as well as having wider implications for family members. Therefore, a coherent decision-making process is essential in order to limit arbitrary sentencing and support the legitimacy of the penal system. This thesis argues that Restorative (...) Justice might offer a more coherent decision-making process. Restorative Justice is hypothesised to operate as a kind of mediation process between the philosophies of punishment and understandings of justice held by participants. Their voluntarily agreed outcome should therefore represent the best possible compromise between participants’ ideas of justice and philosophies of punishment. Analysis of existing empirical research has been undertaken, involving the examination of existing studies of Restorative Justice in Northern Ireland, England and Wales, Australia and New Zealand. This empirical research has explored problems which can arise in practice for the theoretical conception of Restorative Justice as a mediation process between ideas. The thesis concludes that Restorative Justice can in theory offer a more coherent process of sentencing, but that there are a number of obstacles to realising this in practice. (shrink)

This paper tries to develop an epistemological analysis on the notion of responsibility. After pointing out a peculiar kind of uncertainties concerning the notion of responsibility, I focus upon the issue of criminal responsibility, taking the case of mentally disordered offenders into account, and propose the distinction of the phases between sentence and practice with applying Slobogin's idea of integrationism. Finally, I propose a probabilistic approach to the problem of responsibility through considering the idea of relevance ratio, leading to my (...) final proposal concerning the concept of the degrees of responsibility. (shrink)