Retributivism is one of the most prevalent theories in contemporary penal theory. However, despite its popularity it is frequently argued that too little attention has been paid to the implications of retributivism for prison management and prison life, including prison visits and furlough. More so, it has been questioned both whether the various forms of retributivism found in the philosophical literature on criminal punishment have anything to say about what prison life ought to be like and whether they are (...) able to criticize deeply contested rules and practices, such as those that deny inmates contact with family-members for the sake of prison discipline. In this paper, we argue that prison visits and furlough have a crucial role in a prison system based on retributivist principles. In particular, we argue that the communicative theory of punishment has important theoretical resources for proving a strong and compelling rationale for both furlough and visitation on retributivist grounds. Besides exploring this rationale, we also discuss the practical implications of this view for the penal policy. (shrink)

In order to deal with high-dimensional distributed data, this article develops a novel and communication-efficient approach for sparse and high-dimensional data with the penalized quantile regression. In each round, the proposed method only requires the master machine to deal with a sparse penalized quantile regression which could be realized fastly by proximal alternating direction method of multipliers algorithm and the other worker machines to compute the subgradient on local data. The advantage of the proximal ADMM algorithm is that it (...) could make every parameter of iteration to have closed formula even in high-dimensional case, which greatly improves the speed of calculation. As for the communication efficiency, the proposed method does not sacrifice any statistical accuracy and provably improves the estimation error obtained by centralized method, provided the penalty levels are chosen properly. Moreover, the asymptotic properties of the proposed estimation and the convergence of the algorithm are convincible. Especially, it presents extensive experiments on both the numerical simulations and the HIV drug resistance data analysis, which all confirm the significant efficiency of our proposed method in quantile regression for distributed data by comparative and empirical analysis. (shrink)

Companies that have joined the United Nations Global Compact are required to submit a Communication on Progress, which is an environmental, social, and governance report, to the UNGC every year. If they fail to do so, they are marked and listed as non-communicating on the UNGC website. Using the event study methodology, this study shows that a company that fails to report to the UNGC is penalized in the financial markets with an average cumulative abnormal return of −1.6% over (...) a period of 5 trading days around the event. Although a major critique against the UNGC is that the initiative’s voluntary nature and its lack of external monitoring and sanction mechanisms render it ineffective in terms of the business participants’ implementation of the UNGC principles into their operations, this result suggests that investors may be able to pressure UNGC business participants to increase their compliance with the UNGC requirements and to “walk the talk.”. (shrink)

This article discusses the removal of voting rights from those convicted of crimes. I focus on two recent defences of penal disenfranchisement: firstly, I question one justification of the view that voting rights are conditional on the fulfilment of certain responsibilities that offenders fail to meet. Secondly, I criticise an expressivist justification of disenfranchisement based on the idea that it is uniquely suited to express dissociation from serious wrongdoing. While embracing the expressivist perspective of the latter line of argument, (...) I argue that disenfranchisement also expresses attitudes that are incompatible with the commitment to equality. Disenfranchisement conveys the judgment that offenders are not fit to participate in the democratic process. In doing so, it violates the duty of the state to treat all its citizens with equal respect and undermines offenders’ equal status. Moreover, this policy fosters objectionable inequalities of esteem: other members of the community are very likely to internalise the judgment that offenders are second‐class citizens and to regard them as inferior, which in turn undermines their status in society. (shrink)

The Black antislavery theorist Quobna Ottobah Cugoano (c.1757–c.1791) is increasingly recognized as a noteworthy figure in the history of philosophy. Born in present-day Ghana, Cugoano was enslaved at the age of 13 and shipped to Grenada, before being taken onwards to England, where the 1772 Somerset court ruling in effect freed him. His Thoughts and Sentiments on the Evil of Slavery [1787/1791] broke new ground by demanding the immediate end of the slave-trade and of slavery itself, without any compensation to (...) slaveholders. Notwithstanding this, Cugoano endorsed the legitimacy of penal enslavement on principled grounds – like many other abolitionists writing in late eighteenth-century Britain. “Every free community might keep slaves, or criminal prisoners in bondage” – and even sell them. Amidst the growing literature exploring Cugoano’s abolitionism, his paradoxical justification of penal slavery has bewildered commentators. Far from an offhand inconsistency, I argue that this justification is deeply embedded within his moral and legal philosophy; constraining his antislavery arguments while simultaneously serving retaliatory aims. His two-pronged principle of just punishment – the lex talionis (‘eye for an eye, bondage for bondage’) as tempered by mercy – sometimes demands penally enslaving colonial slaveholders and slave-traders in turn. Throughout, I compare Cugoano’s justification of penal enslavement with those of other early modern philosophers, especially Locke and Kant. This helps me position Cugoano within the history of philosophy, thus making his views more accessible to a wider philosophical audience. It also indicates just how deeply theories of punishment shaped philosophical thinking about penal bondage in the period. (shrink)

This article discusses the removal of voting rights from those convicted of crimes. I focus on two recent defences of penal disenfranchisement: firstly, I question one justification of the view that voting rights are conditional on the fulfilment of certain responsibilities that offenders fail to meet. Secondly, I criticise an expressivist justification of disenfranchisement based on the idea that it is uniquely suited to express dissociation from serious wrongdoing. While embracing the expressivist perspective of the latter line of argument, (...) I argue that disenfranchisement also expresses attitudes that are incompatible with the commitment to equality. Disenfranchisement conveys the judgment that offenders are not fit to participate in the democratic process. In doing so, it violates the duty of the state to treat all its citizens with equal respect and undermines offenders’ equal status. Moreover, this policy fosters objectionable inequalities of esteem: other members of the community are very likely to internalise the judgment that offenders are second‐class citizens and to regard them as inferior, which in turn undermines their status in society. (shrink)

La crise sanitaire et sociale provoquée par la Covid-19 a été surmontée par des dispositions qui relèvent autant d’une logique de précaution que de prévention. En effet, la certitude liée à l’existence de ce virus n’a pas suffi à lever toutes les zones d’ombre sur son traitement. Au moins au début de la crise, c’est l’existence même d’un risque qui pouvait être discutée. En conséquence, les dispositions adoptées, sous la menace de sanctions pénales, relèvent en partie d’une logique de précaution (...) dont l’analyse appelle des commentaires mitigés. Il en va a fortiori de même pour l’usage des qualifications de droit commun qui s’avèrent inadaptées. (shrink)

Scholars depict punishment as a moral dialogue between the community and the offender, which addresses both the offender’s crime and character. However, how the penal message evolves vis a vis that crime and character as it passes through the different stages of the criminal process has remained under-theorized. This article, building on communicative theory, explores the interrelation between crime and character along the penal process, from sentencing, through prison, to parole release. We argue that in the penal (...) dialogue the relationship between crime and character evolves in a dynamic way through three phases: separateness (sentencing), fusion (prison), and re-distinction (parole) of crime and character. The proposed analysis develops the communicative meaning of the penal process, provides a normative account of the work of punishment administration authorities, and explores applications of our proposed normative analysis for the administration of the punishment. (shrink)

The question "What can justify criminal punishment ?" becomes especially insistent at times, like our own, of penal crisis, when serious doubts are raised not only about the justice or efficacy of particular modes of punishment, but about the very legitimacy of the whole penal system. Recent theorizing about punishment offers a variety of answers to that question-answers that try to make plausible sense of the idea that punishment is justified as being deserved for past crimes; answers that (...) try to identify some beneficial consequences in terms of which punishment might be justified; as well as abolitionist answers telling us that we should seek to abolish, rather than to justify, criminal punishment. This book begins with a critical survey of recent trends in penal theory, but goes on to develop an original account (based on Duff's earlier Trials and Punishments) of criminal punishment as a mode of moral communication, aimed at inducing repentance, reform, and reconciliation through reparation-an account that undercuts the traditional controversies between consequentialist and retributivist penal theories, and that shows how abolitionist concerns can properly be met by a system of communicative punishments. In developing this account, Duff articulates the "liberal communitarian" conception of political society (and of the role of the criminal law) on which it depends; he discusses the meaning and role of different modes of punishment, showing how they can constitute appropriate modes of moral communication between political community and its citizens; and he identifies the essential preconditions for the justice of punishment as thus conceived-preconditions whose non-satisfaction makes our own system of criminal punishment morally problematic. Punishment, Communication, and Community offers no easy answers, but provides a rich and ambitious ideal of what criminal punishment could be-an ideal of what criminal punishment cold be-and ideal that challenges existing penal theories as well as our existing penal theories as well as our existing penal practices. (shrink)

The Oyapock River has been the border between France and Brazil since the Treaty of Bern came to resolve a centuries-old dispute between the two states. Only populated by indigenous communities and a few adventurers, the two banks of the river are untouched by any lasting colonial and national settlement before the second half of the 19th century. Penal colonization is the formula adopted by the two states to fill the "void" of a border to be formalized. The criminal (...) models circulate and are reinterpreted by participating with great intensity in the making of the territory. (shrink)

Part of the Studies in Crime and Public Policy series, this book, written by one of the top philosophers of punishment, examines the main trends in penal theorizing over the past three decades. Duff asks what can justify criminal punishment, and then explores the legitimacy of actual practices by examining what would count as adequate justification for them. Duff argues that a "communicative conception of punishment," which he presents as a third way between consequentialist and retributive theories, offers the (...) most fruitful way of understanding punishment's meaning and justification. Duff addresses such questions as how much sentences should be constrained by proportionality requirements; what modalities of punishment best communicate their intended meaning; and what decisionmaking procedures he envisions. This book will appeal to criminologists, philosophers, and others interested in theories of punishment. (shrink)

Excerpt from The Community of the Future Page part 3 the right TO earn. 455 section 1 the development IN economic life and law Introduction 459 A. The development IN urban industries and the influence OF the law 463 Chapter 20. The dissolution of the old industrial organisations, the craft guilds 464 Unrestricted economic freedom of trade 464 I. England and North America 468 II. 496 Chapter 21. The Formations of the New Organisations of Industry and their Struggle for Legal (...) Recognition 504 1. England 509 II. The other [countries 515 Chapter 22. The Struggle for Power of the Organisations. The Period of Boycotting 517 I. Boycott-persecution 525 1. Penal Law 530 2. Civil Law 530 531 B. Other Countries II. The Trust Problem and the Law of the Great Industrial Countries 538 1. England 538 2. United States 540 3. France and: Germany 545 B. About the Publisher Forgotten Books publishes hundreds of thousands of rare and classic books. Find more at www.forgottenbooks.com This book is a reproduction of an important historical work. Forgotten Books uses state-of-the-art technology to digitally reconstruct the work, preserving the original format whilst repairing imperfections present in the aged copy. In rare cases, an imperfection in the original, such as a blemish or missing page, may be replicated in our edition. We do, however, repair the vast majority of imperfections successfully; any imperfections that remain are intentionally left to preserve the state of such historical works. (shrink)

It is well documented that the effects of legal punishment tend to drift to the family members, friends, and larger communities of convicted offenders. Instead of conceiving of punishment drift as incidental to legal punishment, or as merely foreseen but not intended by state authorities and thus permissible, I argue that efforts ought to be undertaken to limit or ameliorate it. Failure to confine punishment drift comes perilously close to punishment of the innocent and is at odds with other legal (...) doctrines and broader penal practices that hold offenders, and offenders alone, responsible for their crimes. Numerous arguments urging tolerance of punishment drift, or more assertively defending it, are examined and found wanting. (shrink)

In this paper I develop and defend a new theory of the Atonement - the Communal Substitution Theory. According to the Communal Substitution Theory, by dying on the cross Jesus either takes on the punishment for, or offers satisfaction for, the sins of the human community. Individual humans have sinned, but human communities have sinned as well. Jesus dies for the communal sins. As a result, human communities are forgiven and reconciled to God, and through the event of communal forgiveness, (...) individual human sins can be forgiven as well. Moving the focal point of atonement to communal sins has various advantages: well-known objections to satisfaction and penal theories are avoided, and many of the advantages of other theories of the atonement are organically integrated into the communal substitution theory. (shrink)

This paper considers current personalized recommendation approaches based on computational social systems and then discusses their advantages and application environments. The most widely used recommendation algorithm, personalized advice based on collaborative filtering, is selected as the primary research focus. Some improvements in its application performance are analyzed. First, for the calculation of user similarity, the introduction of computational social system attributes can help to determine users’ neighbors more accurately. Second, computational social system strategies can be adopted to penalize popular items. (...) Third, the network community, identity, and trust can be combined as there is a close relationship. Therefore, this paper proposes a new method that uses a computational social system, including a trust model based on community relationships, to improve the user similarity calculation accuracy to enhance personalized recommendation. Finally, the improved algorithm in this paper is tested on the online reading website dataset. The experimental results show that the enhanced collaborative filtering algorithm performs better than the traditional algorithm. (shrink)

RESUMEN: La labor del Tribunal Penal Internacional para la Ex-Yugoslavia tuvo un momento importante en la compresión del principio de legalidad, como principio básico en la garantía de los derechos humanos, al enfrentar no sólo el derecho consuetudinario como fuente de derecho sino también diferentes modos o enfoques en la identificación de este derecho consuetudinario. Esta relación debe ser analizada a la luz de las limitaciones que tiene el derecho internacional y, sobre todo, de los procedimientos de creación de (...) normas. No resulta fácil exigir responsabilidad en el cumplimiento del derecho internacional humanitario y de los derechos humanos. La práctica de este Tribunal abre una vía para la reflexión con la finalidad de asegurar el respeto de los derechos humanos en cualquier circunstancia, incluso de aquellos que llevaron a cabo la comisión de graves crímenes contra la comunidad internacional.ABSTRACT: The work of the International Criminal Tribunal for the former Yugoslavia was important for understanding the principle of legality as a key principle on the guarantee of Human Rights. The former was due to the Tribunal’s work on having faced the customary law as a source of law using different perspectives for its identification. The link between customary law, principle of legality and human rights has to be analyzed taking in account the limits of International law and the procedures for creating legal norms. It is not easy to invoke responsibility in the fulfillment of international humanitarian law and international law of human rights. The practice developed by this Tribunal provides an avenue for thinking about ensuring the respect of the human rights in any case including the commission of grave crimes against international community. PALABRAS CLAVE: derecho internacional de los derechos humanos, principio de legalidad, derecho internacional humanitario, costumbre internacionalKEYWORDS: international law of human rights, principle of legality, international humanitarian law, international custom. (shrink)

We encounter offense through various media: an intended facetious remark, a protester’s photographic image of an aborted fetus, an epithet, a stereotypical joke of a minority racial group. People say things that cause offense all of the time. And causing offense can have serious consequences, both personal and professional; the offending party is subject to termination, suspension, or social isolation and public opprobrium. Since the stakes are so high we should have a better understanding of the mechanisms of offense involved (...) in these media and how they work. In this dissertation I focus on two mechanisms for communicating offense—i.e. racial and ethnic slurs and racial humor. First, I lay out a few distinctions concerning the particular kind of offense being targeted, objective versus subjective offense, and when state involvement might be appropriate for penalizing offensive behavior. Next, I discuss racial slurs and the conditions of their offensiveness. I offer a non-content based view of slurs’ offense, which contradicts the consensus view held by most philosophers of language and linguists working on this issue. Also, I look more closely at a purportedly non-offensive use of slurring language, so-called linguistic appropriation, and determine that appropriated uses are permissible in certain settings only under certain conditions. And finally, I propose a tri-partite analysis of racial jokes that provides conditions for when they are merely racial, racially insensitive, or racist. (shrink)

According to some philosophers, a necessary condition of morally permissible punishment is that it communicates deserved censure for the offender’s wrongdoing. The author calls this the Communicative Condition of punishment. The chapter considers whether the use of mandatory crime-preventing neurointerventions is compatible with the Communicative Condition. The author argues that it is not. If we accept the Communicative Condition, it follows that it is impermissible to administer mandatory neurointerventions on offenders as punishment. The author then considers whether it is permissible (...) to offer an offender a neurointervention as a replacement for incarceration or in exchange for a shorter sentence. He notes that this could meet the Communicative Condition, although, somewhat oddly, only in cases where the neurointerventions have harmful effects. (shrink)

When Dominique Strauss-Kahn, then head of the IMF, was arrested on charges of sexual assault arising from events that were alleged to have occurred during his stay in an up-market hotel in New York, a sizeable portion of French public opinion was outraged - not by the possibility that a well-connected and widely-admired politician had assaulted an immigrant hotel worker, but by the way in which the accused had been treated by the American authorities. I shall argue that in one (...) relatively minor respect, Strauss-Kahn’s defenders were correct. They were correct to argue that the parading of Strauss-Kahn before the press, in handcuffs - the so-called perp walk - constituted a form of punishment; and thus that it contravened the principle that criminal punishments should only be administered after a fair trial. So-called ‘expressive’ theorists of punishment hold that a form of harsh treatment can only constitute a form of punishment if it has an expressive role. Within the expressive family, we can distinguish between views on which the primary target of the communication to be the society of which either offender, or victim, or both are members—what I call ‘Denunciatory Views’, and views which take the principle target of penal communication to be the offender—such as Antony Duff’s Communicative View. I shall argue that on both a minimal account of punishment and on either kind of expressive view, ‘perp walks’ are a form of punishment. (shrink)

State agents’ misconduct (SAM), such as the violations carried out by the police or prosecution, may harm an offender’s rights during the criminal process in various ways. What, if anything, can retributivism, as an offense-focused theory that looks to the past, offer in response to SAM? The goal of this essay is to advance a retribution-based framework for responding to SAM within the criminal process. Two retribution-based arguments are provided. First, a retribution-based response to SAM aims to protect the legitimacy (...) of the criminal process. Such an argument is based on how the crime and punishment connect to the moral standing of the state and that connection’s meaning for the legitimacy of the trial (legitimacy-based argument). Second, a retribution-based response to SAM aims to consider the offender’s side of the penal dialogue and promote a more accurate calibration of the penal suffering (compensation-based argument). Based on these arguments, the essay theorizes the legal response for SAM in US and non-US traditions through the retributive lens. The essay concludes with a call for expanding the multiple roles for retributive logic to include the actions of law-enforcement actors and addresses what that expansion means for the justice of the criminal process. (shrink)

This essay uses Garland’s framework from The Culture of Control to suggest an agenda for critical penology. This includes, as well as the analysis of choices actually made and the cultural repertoire actually available, describing and advocating other possible choices, and analysing the conditions of possibility for the adoption of other (better) policies and practices; and examining the implications for the future of choices which are currently being made. Carlen’s Women and Punishment: The Struggle for Justice and Garland’s edited collection (...) Mass Imprisonment in the USA are examples of these penologies. Another way in which penologists, social theorists and philosophers can attempt to influence policy choices is to contribute to enlargement of the available cultural repertoire. The development and promotion of restorative justice is given as one example of this; another is work by philosophers such as Duff, Matravers and Norrie which addresses questions such as the source, nature and limits of penal communities; the basis of political obligation, and the relational nature of responsibility for crime. (shrink)

Most punishment theories acknowledge neither the full extent of the harms which punishment risks, nor the caring practices which punishment entails. Consequently, I shall argue, punishment in most of its current conceptualizations is inconsistent with treating offenders as equals qua persons. The nature of criminal punishment, and of our interactions with offenders in punishment decision-making and delivery, risks causing harm to offenders. Harm is normalized when central to definitions of punishment, desensitizing us to unintended harms and obscuring caring practices. Offenders (...) may be partially silenced and excluded by mainstream criminal justice practices which limit interaction between offenders and practitioners. When we ignore significant harms, or silence and exclude, we treat others as passive non-subjects. This partially objectifies offenders, and is inconsistent with treatment as equals. Penal theories employing harm-centred and harm-normalizing definitions of punishment can provide few resources to help practitioners either avoid, or recognize and respond to, harms. Care ethics, by contrast, motivates the avoidance of harm, ongoing inclusive engagement, and respectful interaction with others. I argue that defining punishment without presupposing harm facilitates the identification of morally problematic harms, and recognition of caring practices. I offer a principled argument, and political and pragmatic supplementary arguments, for responding to offenders without intentional harm and with care. Principles drawn from care ethics can help to strengthen mainstream criminal practices by structuring decision-making and action. Bottom-up alternative criminal justice practices share some values with these proposed guiding principles, allowing a partial test of the principles. I consider examples of restorative justice practices, therapeutic jurisprudence, community justice and other problem-solving court practices, in addition to considering how well mainstream punishment practices measure up to these principles. My analysis illuminates the strengths and weaknesses of the principles, and how they might contribute to securing treatment as equals for offenders in mainstream practices. (shrink)

This paper questions the notion that states may be justified in denying certain prisoners the right to vote as a means of distancing themselves from particularly grave wrongs. Christopher Bennett has recently defended prisoner disenfranchisement as a fair and deserved retributive punishment for crimes, and Mary Sigler and Andrew Altman have argued in favor of prisoner disenfranchisement as a civil restriction. All three proponents agree that disenfranchisement should be reserved for those guilty of the most serious offenses. I assert that (...) it is inappropriate to treat citizens in this manner and will advocate for the right to vote, whether disenfranchisement is perceived as a form of punishment or as a civil measure. I will present two arguments against disenfranchisement as it impacts both citizens and political community at large. First, it excludes citizens from the democratic arena and restricts the opportunity to reintegrate offenders into the political community. While a criminal sentence is intended to be burdensome, the burden associated with disenfranchisement extends beyond the appropriate penal scope. (shrink)

§ 219a of the German Penal Code (StGB) – the so-called ban on advertising abortions – has been subject of an increasing legal-political controversy since 2017 and was dropped by legislation in July 2022. This paper examines and reconstructs the extent to which the aforementioned ‘ban on advertising’ was (in–)‌compatible with recognized standards of medical ethics. For this purpose, arguments put forward in public discourse on both sides of the conflict, insofar as they go beyond basic attitudes toward abortion, (...) will be subjected to a plausibility test from the perspective of medical ethics. This will show that (I.) according to the standard understanding of autonomy in medical ethics by Beauchamp and Childress, the provision of information about abortions is not an undue influence, but a necessary precondition for autonomous decisions by pregnant women; that (II.) the feared undesirable social developments after the abolition of § 219a StGB are empirically unfounded and largely implausible; but that on the other hand (iii) a multi-perspective communication landscape with accessible expert information promises to effectively counteract the self- and external stigmatization of unintentionally pregnant women. As a result, this analysis provides two things: a coherent medico-ethical justification for the annulment of § 219a StGB and an argumentative basis for the defense against future efforts to support biopolitical positions by censoring available information. (shrink)

Sometimes persons are legally responsible for reckless behavior that causes criminal harm. This is the case under the newly drafted provisions of the U.S. Model Penal Code (MPC), which holds persons responsible for “simple” rape (nonconsensual sex without proof of force or threats of force), where the offender recklessly disregards the risk that the victim does not consent. In this paper we offer an explanation and corrective critique of the handling of reckless rape cases, with a focus on the (...) U.S. criminal justice system, although our analysis is applicable more broadly. We argue that a wider group of reckless rapists are criminally responsible than is captured by the MPC and claim criminal punishment of reckless rapists must be justified by looking to both moral desert and instrumental aims achieved by criminal punishment. Part of the law’s job is to communicate and enforce society’s expectations regarding unacceptable behavior. In punishing reckless rape, we are not just giving people what they deserve, but also reinforcing and shaping norms regarding sexual behavior. (shrink)

ABSTRACT:After a transgression has occurred within an organization, a primary concern is the reintegration of the affected parties back into the organizational community. However, beyond offenders and victims, reintegration depends on the views of organizational peers and their desire to interact with these parties. In two studies, we demonstrated that offender amends and victim forgiveness interact to predict peer reintegrative outcomes. We found evidence of backlash against unforgiving victims: Peers wanted to work the least with victims who rejected appropriate amends, (...) thus penalizing them for their failure to contribute to the restoration process. This backlash effect was due to decreased liking of the victim and the perceived failure to repair the offender-victim relationship. These findings demonstrate that peers expect both offenders and victims to do their part to achieve reconciliation following transgression, and both may suffer the consequences of failing to meet peer expectations. Implications for reintegration within organizations are discussed. (shrink)

After a transgression has occurred within an organization, a primary concern is the reintegration of the affected parties back into the organizational community. However, beyond offenders and victims, reintegration depends on the views of organizational peers and their desire to interact with these parties. In two studies, we demonstrated that offender amends and victim forgiveness interact to predict peer reintegrative outcomes. We found evidence of backlash against unforgiving victims: Peers wanted to work the least with victims who rejected appropriate amends, (...) thus penalizing them for their failure to contribute to the restoration process. This backlash effect was due to decreased liking of the victim and the perceived failure to repair the offender-victim relationship. These findings demonstrate that peers expect both offenders and victims to do their part to achieve reconciliation following transgression, and both may suffer the consequences of failing to meet peer expectations. Implications for reintegration within organizations are discussed. (shrink)

The aim of this article is to bring to the attention of the international nursing community the discrepancy between a pervasive ‘caring’ nursing discourse and a most unethical nursing practice in the United States. In this article, we present a duality: the conflict in American prisons between nursing ethics and the killing machinery. The US penal system is a setting in which trained healthcare personnel practice the extermination of life. We look upon the sanitization of deathwork as an application (...) of healthcare professionals’ skills and knowledge and their appropriation by the state to serve its ends. A review of the states’ death penalty statutes shows that healthcare workers are involved in the capital punishment process and shielded by American laws (and to a certain extent by professional boards through their inaction). We also argue that the law's language often masks that involvement; and explain how states further that duplicity behind legal formalisms. In considering the important role healthcare providers, namely nurses and physicians, play in administering death to the condemned, we assert that nurses and physicians are part of the states’ penal machinery in America. Nurses and physicians (as carriers of scientific knowledge, and also as agents of care) are intrinsic to the American killing enterprise. Healthcare professionals who take part in execution protocols are state functionaries who approach the condemned body as angels of death: they constitute an extension of the state which exercises its sovereign power over captive prisoners. (shrink)

On the basis of a communicative theory of criminal punishment, I show how mercy has a significant but limited role to play in the criminal law—in particular (although not only) in criminal sentencing. Mercy involves an intrusion into the realm of criminal law of values and concerns that are not themselves part of the perspective of criminal law: a merciful sentencer acts beyond the limits of her legal role, on the basis of moral considerations that conflict with the demands of (...) penal justice. Sometimes, however (but in a decent system of law in a decent society, rarely), that is how citizens should act. Finally, I discuss, and criticise, two attempts to find a place for mercy within a communicative conception of punishment, and argue that repentance is not an appropriate ground for leniency or mercy in sentencing. (shrink)

ABSTRACT:After a transgression has occurred within an organization, a primary concern is the reintegration of the affected parties (namely offenders and victims) back into the organizational community. However, beyond offenders and victims, reintegration depends on the views of organizational peers and their desire to interact with these parties. In two studies, we demonstrated that offender amends and victim forgiveness interact to predict peer reintegrative outcomes. We found evidence of backlash against unforgiving victims: Peers wanted to work the least with victims (...) who rejected appropriate amends, thus penalizing them for their failure to contribute to the restoration process. This backlash effect was due to decreased liking of the victim and the perceived failure to repair the offender-victim relationship. These findings demonstrate that peers expect both offenders and victims to do their part to achieve reconciliation following transgression, and both may suffer the consequences of failing to meet peer expectations. Implications for reintegration within organizations are discussed. (shrink)

A number of articles and empirical studies over the past decade, most by Paul Robinson and co-authors, have suggested a relationship between the extent of the criminal law's reputation for being just in its distribution of criminal liability and punishment in the eyes of the community – its "moral credibility" – and its ability to gain that community's deference and compliance through a variety of mechanisms that enhance its crime-control effectiveness. This has led to proposals to have criminal liability and (...) punishment rules reflect lay intuitions of justice – "empirical desert" – as a means of enhancing the system's moral credibility. In a recent article, Christopher Slobogin and Lauren Brinkley-Rubinstein (SBR) report seven sets of studies that they argue undermine these claims of empirical desert and moral credibility and instead support SBR's proposed distributive principle of "individual prevention," a view that focuses on an offender's future dangerousness rather than on his perceived desert. -/- The idea that there is a relationship between the criminal law's reputation for justness and its crime-control effectiveness did not originate with Robinson and his co-authors. Rather, it has been a common theme among a wide range of punishment theory scholars for many decades. A particularly important conclusion of recent Robinson studies, however, is their confirmation that this relationship is a continuous one: even small nudges in moral credibility can produce corresponding changes in the community's deference to the criminal law. This is important because it shows that even piecemeal changes or changes at the margin – as in reforming even one unjust doctrine or procedure – can have real implications for crime-control. SBR's studies, rather than contradicting the crime-control power of empirical desert, in fact confirm it. Further, SBR's studies do not provide support for their proposed "individual prevention" distributive principle, contrary to what they claim. -/- While SBR try to associate their principle with the popular "limiting retributivism" adopted by the American Law Institute in its 2007 amendment of the Model Penal Code, in fact it is, in many respects, just the reverse of that principle. With limiting retributivism, the Model Code's new provision sets desert as dominant, never allowing punishment to conflict with it. SBR would have "punishment" essentially always set according to future dangerousness; it is to be constrained by desert only when the extent of the resulting injustices or failures of justice is so egregious as to significantly delegitimize the government and its law. This ignores the fact that even minor departures from justice may have an important cumulative effect on the system as a whole. What SBR propose – essentially substituting preventive detention for criminal justice – promotes the worst of the failed policies of the 1960s, where detention decisions were made at the back-end by "experts," and conflicts with the trend of the past several decades of encouraging more community involvement in criminal punishment, not less. (shrink)

Focusing democratic theory on the pressing issue of punishment, Punishment, Participatory Democracy, and the Jury argues for participatory institutional designs as antidotes to the American penal state. Citizen action in institutions like the jury and restorative justice programs can foster the attunement, reflectiveness, and full-bodied communication needed as foundations for widespread civic responsibility for criminal justice.

In this paper, we summarize the various impacts of incarceration with the aim of providing an overview of the ways mass incarceration affects society. In doing so, we look inside the black box of the largest penal experiment in world history: the quintupling of the prison population in the United States between 1973 and 2006. The question is, "What have been the social consequences of our incarceration policy?"One objective is to provide insight into what might be called the prison (...) policy paradox, namely, that a 500% generation_long growth in imprisonment has had little impact on crime. Answers are provided by looking inside the black box of penal policy and by identifying the various ways incarceration leads to social outcomes that are associated with public safety. The paper considers the problem of "public safety," because safety is a broader concept than crime. Though a desire for public safety includes a desire for low rates of crime, public safety connotes a more profound interest we have to live in a society where we feel secure pursuing our personal goals and fulfilling our life desires Using public safety as our criteria enables us to consider the ways incarceration affects our quality_of_life, especially through the way incarceration affects the informal social relations that promote the kind of profound social control that is a foundation for a sense of feeling safe.Three types of effects are described. Positive effects are those that improve public safety, negative effects reduce public safety, and "ambivalent" effects have the capacity to be both positive and negative. Five levels of social impacts on public safety are assessed:o Effects on individuals that change the way people act;o Effects on intimate relationships such as those with families and other loved ones;o Effects on social relationships that are felt as community_level outcomes;o Effects on institutions such as labor markets and the political economy;o Effects on democracy or social justice.Thus, the purpose of this paper is to summarize what is known, empirically and experientially, about the positive and negative ways incarceration affects levels of social expression. (shrink)

Using ethnographic data gathered at a mandated, community-based drug treatment program for women offenders, this article analyzes how gendered notions of the self and of autonomy shape penal governance. This study examines how psychological models of women's deviance, racialized visions of motherhood, and therapeutic techniques of the self come into tension with expectations of responsible, autonomous citizenship. The program prioritized therapeutic ways of governing its clients over those that emphasized economic self-reliance, rational decision making, and normalizing gender. This is (...) because staff attributed criminal and addictive behaviors to women's inadequate self-understanding and lack of emotional autonomy in personal relations. Staff discouraged women's motherhood and paid labor because they saw these external obligations as a threat to women's autonomous selfhood. This research complicates claims that contemporary forms of penal treatment manage offenders through rational incentives and personal responsibility by pointing to the ways that subject formation is a gendered process. (shrink)

Social and environmental ratings provided by social rating agencies are multidimensional. The first goal of our paper is to identify a small number of independent and relevant socially responsible (SR) dimensions reflecting a firms’ coherent posture toward social issues. We put forward that these dimensions are not exactly the same as the ESG ones (Environment, Social, and Governance). Using the six sub-ratings provided by the Vigeo rating agency, we perform a principal component analysis and we highlight three main independent SR (...) dimensions related to (1) business stakeholders (employees, customers, and suppliers), (2) societal stakeholders (environment and society), and (3) financial stakeholders (stockholders and debt holders). The second objective of our paper is to explore the link between stock returns and these three SR dimensions. Our most notable finding is that for each SR dimension, investors ask for an additional risk premium when they accept to hold non-socially responsible stocks. The cost of equity is thus lower for SR firms. The average premium over the period 2003–2010 is larger for the components “business stakeholders” and “financial stakeholders” than for the component “societal stakeholders.” The premium for this last component has only existed since the end of 2008. Since that time, environment and community involvement have become important risk factors strongly considered by investors. For the three dimensions, investors notably penalize large non-social firms and reward small social firms. (shrink)

Mistakes are a fact of life, and the criminal law is sadly no exception to the rule. Wrongful convictions are rightfully abhorred, and false acquittals can likewise inspire outrage. In these cases, we implicitly draw a distinction between a court’s finding and a defendant’s actual guilt or innocence. These are intuitive concepts, but as this paper aims to show, contemporary use of the reasonable person standard in the law of self-defense muddles them. -/- Ordinarily, we can distinguish between a person's (...) material guilt or innocence and his juridical guilt or innocence. Someone is materially guilty if his actions in fact matched the conduct proscribed by the penal law. Someone is juridically guilty if he is found guilty by a tribunal, i.e., convicted by a judge or jury. When a tribunal convicts a innocent person or acquits a guilty person, the accuracy of its verdicts can be criticized. -/- There are three definitions of the reasonable person extant amongst courts and commentators: the reasonable person is either (1) a hypothetical ordinary, average person; (2) the embodiment of a community ideal; or (3) an embodiment of an objective ethical standard, i.e., ethical principles independent of community opinion. Nonetheless, after observing the circularity, vagueness, and lack of consistency in the definitions, wise courts and commentators have sometimes resorted to identifying the reasonable person with the judgment of the jury. -/- This piece argues that failure to settle on a fixed definition of the "reasonable person" in the criminal law of self-defense effectively conflates material guilt and innocence and juridical guilt and innocence at the doctrinal level. When courts do not clearly and consistently choose between standards one, two, and three, or when they expressly treat the reasonable person as a form of words standing in for the judgment of the jury, they make it conceptually impossible for observers outside the court system to apply a fixed, definite standard to assess the actual guilt of a person apart from the judgments of tribunals. -/- This paper's main purpose is to identify a conceptual knot rather than propose reforms. Still, it recommends two small changes meant to lift the confusion surrounding the reasonable person. First, it urges that courts expressly settle on one of the three definitions canvassed above. Second, it recommends that courts be mindful of the nature of the reasonable person standard and as such, be wary of treating conclusions about reasonableness as ordinary legal precedents, and wield the power of directed verdict aggressively to protect unpopular defendants from abuse by juries. (shrink)

Machine generated contents note: 1 Introduction 1 -- 2 Central themes and critical issues 10 -- Introduction 10 -- Core themes 11 -- Differences which have surfaced in the move from -- margins to mainstream 15 -- The claims of restorative justice: a brief examination 21 -- Some limitations of restorative justice 25 -- Some dangers of restorative justice 29 -- Debunking restorative justice 32 -- 3 Reviving restorative justice traditions 36 -- The rebirth of an ancient practice 36 -- (...) Pre-modem criminal justice 37 -- The renaissance of native justice traditions 43 -- Navajo peacemaking 44 -- Can one characterise ancient and indigenous -- justice as restorative? 47 -- Can one revive restorative justice traditions? 49 -- Conclusion: did restorative justice ever die? 59 -- 4 Healing the victim 62 -- Introduction 62 -- The experiences and needs of victims 64 -- The inadequacy of punitive justice for the victim 67 -- Victim reforms 70 -- Restitution from the offender 74 -- Beyond restitution: restoring victims 76 -- Restorative justice or 'clubbing together'? 78 -- Using victims to rehabilitate offenders 81 -- Paternalism towards victims 83 -- Balancing the needs of the victim with those of society 84 -- 5 A restorative approach to offenders 87 -- Introduction 87 -- Restorative justice as an alternative to retributive justice 88 -- Restorative justice as an alternative to treatment 94 -- The goals and methods of restorative justice in relation -- to offenders 95 -- An alternative to punishment or an alternative form of -- punishment? 106 -- An alternative to treatment? 111 -- 6 Shame, apology and forgiveness 114 -- Introduction 114 -- Restorative cautioning 115 -- The psychological routes of restorative conferencing 116 -- The idea of reintegrative shaming 118 -- Some questions about shaming 123 -- Apology and forgiveness 132 -- 7 Mediation, participation and the role of community 136 -- Introduction: handling criminal conflicts 136 -- The rationale for the restorative justice process 140 -- Achieving restorative goals 141 -- Moral development and the strengthening of community 144 -- The role of community 151 -- 8 The future of restorative justice 161 -- Introduction 161 -- Implementing restorative justice: the paths less likely 163 -- The implementation of restorative techniques 166 -- Restorative justice and the pattern of penal control 169 -- The future of restorative justice research 170 -- Appendix to chapter 3: the theological roots of judicial -- punishment 172. (shrink)

Criminal law scholars approach legality in various ways. Some scholars eschew over-arching principles and proceed directly to one or more distinct “rules”: (1) the rule against retroactive criminalization; (2) the rule that criminal statutes be construed narrowly; (3) the rule against the judicial creation of common-law offenses; and (4) the rule that vague criminal statutes are void. Other scholars seek a single principle, i.e., the “principle of legality,” that they claim underlies the four rules. In contrast, I believe that both (...) approaches are misguided. There is no such thing as a single “principle of legality;” yet, the four aforementioned rules are not unrelated to each other. The so-called “principle of legality” consists of two distinct norms that derive, respectively, from two fundamental principles of criminal justice, viz., the principle, “No person shall be punished in the absence of a bad mind,” and the principle that underlies the maxim, “Every person is presumed innocent until proven guilty.” The first norm of legality explains the rules regarding ex post facto legislation, and rules regarding “notice” and “fair warning” of judicial decisions. When a person is punished for violating a rule that was non-existent or unclear at the time he acted, he is punished for conduct that the state now condemns and seeks to prevent by means of penal sanctions. Accordingly, at the time the person is prosecuted, his claim is not that he did not do anything that the state regards as wrong, but, rather, that he neither knew nor should have known that he was doing something that the state would come to regard as wrong. He ought, indeed, to be excused for his mistake, but only because of a principle that is common to excuses generally: “No person ought to be punished in the absence of a guilty mind.” He should be excused because even when a person does something the state condemns and seeks to prevent, he ought not to be blamed for it unless he was motivated in a certain way, namely, by an attitude of disrespect for the legitimate interests of the political community by whose norms he is bound.The second norm of legality informs several of the remaining rules, though not all of them. The second norm is that a person ought not to be punished in the name of a political community unless it can confidently be said that the community officially regards his conduct as warranting the criminal punishment at issue. It is a norm that is most commonly associated with the rule of lenity, but it is not confined to the construction of statutes that are ambiguous or vague. It can also be also violated when a person is punished for violating a statute that has fallen into desuetude, regardless of how widely promulgated or narrowly defined the statute may be. This second norm derives from a principle that also underlies the presumption of innocence - the only difference being that the presumption of innocence is a preference for acquittal in the event of uncertainty regarding the facts which an actor is charged, while the second norm of legality is a preference for acquittal in the event of uncertainty regarding the scope of the offense which he is charged.Nevertheless, one “rule” remains that this analysis throws into question - namely, the rule that “vague” criminal statutes are void. Criminal statutes are sometimes so broadly defined that they do, indeed, infringe constitutionally protected rights of speech, movement, etc. - in which event they ought to be invalidated on those very grounds. And criminal statutes are sometimes so broadly drafted that, before applying them, courts ought to construe them to apply only to constitutionally unprotected acts that courts can confidently say the relevant political community regards as warranting punishment. But once statutes are so construed to apply only to constitutionally unprotected conduct, courts have no further reason to invalidate them on grounds of “vagueness.” Lack of “notice” is no reason to invalidate them because, with respect to the narrowly defined conduct such statutes are construed to prohibit, “common social duty” alone ought to alert actors that their conduct is suspect. (shrink)

Sometimes persons are legally responsible for reckless behavior that causes criminal harm. This is the case under the newly drafted provisions of the U.S. Model Penal Code (MPC), which holds persons responsible for “simple” rape (nonconsensual sex without proof of force or threats of force), where the offender recklessly disregards the risk that the victim does not consent. In this paper we offer an explanation and corrective critique of the handling of reckless rape cases, with a focus on the (...) U.S. criminal justice system, although our analysis is applicable more broadly. We argue that a wider group of reckless rapists are criminally responsible than is captured by the MPC and claim criminal punishment of reckless rapists must be justified by looking to both moral desert and instrumental aims achieved by criminal punishment. Part of the law’s job is to communicate and enforce society’s expectations regarding unacceptable behavior. In punishing reckless rape, we are not just giving people what they deserve, but also reinforcing and shaping norms regarding sexual behavior. (shrink)

Le faux s'entend de multiples façons et ne désigne pas seulement le résultat d'une opération de falsification menée à des fins privées et, à ce titre, réprimée plus ou moins efficacement par le droit pénal. Il fait aussi partie des contraintes nécessaires au bon fonctionnement du système juridique: on ne peut se passer des fictions ou des présomptions ; il faut compter aussi avec les approximations nécessaires du langage juridique: jamais il n'est question de "décrire" une réalité, mais bien plutôt (...) de la schématiser ou d'énoncer un devoir-être la concernant. Ce qui a pour effet de placer le législateur et ses alliés objectifs dans une situation de tension permanente entre ce qui existe en fait ou risque d'advenir et les exigences énoncées par la règle juridique. Ce décalage nécessaire affecte tous les secteurs du droit, pas seulement les plus sensibles au changement social. On a donc essayé d'en prendre la mesure, dans certains d'entre eux - droit économique, droit des assurances, droit de l'environnement, protection des oeuvres de l'esprit, droit international et européen, droit des nouvelles technologies -, sans oublier que le droit n'est à tout prendre qu'un laboratoire des oppositions et conflits d'intérêts qui travaillent la société dans son ensemble et que, par conséquent, comme tout système de communication, il se doit pour continuer d'exister et de remplir cette fonction implicite, de maintenir une part d'ombre sur sa propre nature. Comme dans tous les colloques organisés par le Centre d'études et de recherches sur les contentieux, cette question juridique par excellence a été étudiée par des juristes, bien sûr, mais aussi par des collègues apparemment étrangers à la chose juridique mais directement concernés par les problèmes de la communication entre les hommes. Le colloque dont les actes sont ici reproduits s'inscrit dans la continuité d'un travail entrepris il y a quelques années dans le cadre du Centre d'études et de recherches sur les contentieux. Il a déjà donné lieu à une première publication consacrée aux problèmes de l'interprétation et de la traduction. (shrink)

Within the notion of punishment in the Yoruba culture, the physical and non-physical aspects of human existence are reconciled to arrive at a justifiable punitive action. The metaphysical presuppositions in Yoruba punitive system reflect a coherent interconnection among social structure, law and belief system for the harmonious human well-being of the individual and the community. Furthermore, the judicious imposition of punitive measures on the offender establishes the significance of attributing responsibility for every human action without antagonism and animosity. Nevertheless, the (...) offender, within the tradition, is restitutively reconciled with himself, the victim and the community at large. The social order based on these principles creates and modifies the contemporary understanding of penology and penal practice. (shrink)

Cyberbullying has been defined as the “process of using the internet, cell phones or other devices to send or post text or images intended to hurt or embarrass another person.” The word “cyberbullying” is often used interchangeably with “cyber stalking” and in fact the Cybercrimes Act 2015 of Nigeria, uses the word “cyber stalking” which it defines as any course of conduct directed at a specific person that would cause a reasonable person to feel fear. By the provisions of the (...) Act, the transmission of any communication through the means of a computer to bully, threaten or harass another person where such communication places another person in fear of death, violence or bodily harm amounts to cyber stalking. Cyberbullying is becoming a common phenomenon in Nigeria as more people engage in it especially on social media platforms. This is carried out in various ways and a common trend is posting indecent imagery of persons online such as naked pictures or videos of persons in order to humiliate them. When posted by a person, the communication is shared by others thereby causing circulation on social media. This act amounts to cyber stalking where the intention consists of those elements stated under the Cybercrimes Act. In other situations where it is shared without the aim of humiliating the victim, such act can still be incriminated under some other laws in Nigeria such as the Criminal Code Act and the Penal Code Act which for instance both criminalise obscene publications. It is worthy of note there have been reported cases where victims of cyberbullying have committed suicide as a result of fear or shame. A major observation is that cyberbullying has gained normalcy and many internet users engaged in it do not seem to be aware of the criminal connotation of their actions. This paper examines the effectiveness of legal responses to cyberbullying in Nigeria. It discusses the forms of cyberbullying commonly perpetrated in Nigeria by citing some real life instances that have happened in the past. The paper notes that most forms of cyberbullying can be prosecuted under the Cybercrimes Act, however, there has not been any notable enforcement of the law in terms of prosecution of cyberbullying cases. It appears that the lack of prosecution of offenders has fostered the act of cyberbullying especially under the present circumstances where there is widespread ignorance among internet users. The paper also notes that the absence of image rights is a precursor in many respects to some forms of cyberbullying especially when photographs and videos of victims are involved. The paper advocates the implementation and enforcement of the Cybercrimes Act as well as other laws relating to cyberbullying in Nigeria. The paper also posits that the protection of image rights will go a long way to assist in curbing the act of cyberbullying in Nigeria. (shrink)

Intersectionality emphasizes numerous points of difference through which those who occupy multiple disadvantaged statuses are penalized. Applying this consideration to the workplace, we explore ways in which status-based and structural aspects of work undermine women and people with physical disabilities and diminish psychological well-being. We conceptually integrate research on the workplace disadvantages experienced by women and people with disabilities. Drawing on a longitudinal analysis of community survey data that includes a diverse sample of people with and without physical disabilities, we (...) explore the claim that women with disabilities are burdened by greater disadvantage in work settings compared to men with disabilities and women and men without disabilities. We find evidence that in comparison with these groups, women with disabilities on average are more psychologically affected by inequitable workplace conditions, partly because they earn less, are exposed to more workplace stress, and are less likely to experience autonomous working conditions. (shrink)

La teología católica de la pena, que durante siglos se mantuvo prácticamente inalterada, ha experimentado en los últimos 20 años una profunda transformación, impulsada por la idea conciliar de la dignidad de la persona humana, una más cabal comprensión del concepto bíblico de justicia divina y una conciencia más aguda de las deficiencias e injusticias del sistema penal, en particular, de la pena carcelaria. El presente artículo, a través del estudio de diversos documentos magisteriales relevantes para este tema, ilustra (...) la nueva perspectiva de la justicia reconciliadora, que busca dar a la sanción retributiva un sentido auténticamente medicinal, convirtiéndola en un recorrido potencialmente dotado de sentido para el delincuente, conducente a su rehabilitación y su reinserción en la comunidad. The Catholic Theology of punishment, which for centuries had remained unaltered, has undergone during the last 20 years a deep transformation, due to the conciliar idea of the dignity of the human person, a better understanding of the biblical concept of divine justice, and a new awareness of the deficiencies of the criminal justice system, especially as regards prison. This article, through the analysis of different magisterial documents, illustrates the new perspective of reconciliative justice, which seeks to give retributive sanctions an authentic medicinal orientation, as a potentially meaningful process for their subjects, in order to enable their rehabilitation and reintegration in the community. (shrink)

This chapter will discuss ethical issues connected with neuroscientific research on prisoners, focusing specifically on whether participating in such research should always be disregarded when making decisions about early release from prison. It was once routine in some jurisdictions for a prisoner’s participation in medical research to count as “good behaviour”, which could be given weight in decisions about early release. However, medical ethicists now widely regard this practice as ethically problematic, because prisoners might feel pressurised to participate in medical (...) research programmes by the desire to escape a coercive and harsh prison environment, and thus their agreement to take part in the programme might not satisfy the freedom requirement for valid consent. Yet, there may be a tension between traditional medical ethics and theories of punishment (a tension which also arises in other contexts at the interface between medicine and punishment). From the perspective of retributive or communication/reform-based theories of punishment, it might seem unfair for parole boards to disregard willingness to participate in medical research, if the prisoner were motivated by altruistic considerations. This altruism might indicate that the prisoner “deserves” a shorter sentence or may be a sign that the prisoner has reformed. This chapter will consider whether/how this tension between traditional medical ethics and penal theories can be resolved. For example, if the medical research involves relatively safe interventions such as fish oil pills or transcranial direct current stimulation (tDCS), then the above-mentioned worries about prisoners’ ability to provide free consent may be less pressing than if the risks of side-effects were greater. Furthermore, the validity of consent also seems to depend partly on whether the prison conditions are humane or excessively harsh. In addition, problems also arise in this context from within penal theories. Ironically, transparency about what factors will be taken into account in decisions about early release, which would presumably be encouraged by communication/reform theories, could raise the possibility that the prisoner was motivated to participate in the research programme by a desire for early release rather than altruism, thus making it harder to determine whether participation is a genuine sign of reform. (shrink)

In this paper I outline and criticize Judith Shklar’s and Richard Rorty’s ‘liberalism of fear’. Both political thinkers believe liberalism to be characterized by a fundamental opposition to cruelty , which they regard as the least liberal of the features that may distinguish any given human community. In order to demonstrate the limits of the Shklar–Rorty thesis, I make use, in the first place, of John Kekes’s critique of liberalism as to show that liberalism allows for cruelty in so far (...) as it grants wider margins of agency to the members of the community. In the second place, I make use of Cesare Beccaria’s reflections on the cruelty implied by liberalism assuch, in so far as this political doctrine endorses the institutions of penal justice and private property. Key Words: Cesare Beccaria • cruelty • ethics • fear • justice • John Kekes • liberalism • politics • property • punishment • Richard Rorty • Judith Shklar. (shrink)

The article begins with the gospels’ admonition to take up one's cross and asks how Christians might understand Christ's work on the cross so that we might better imitate or participate in it. Using tools from recent advances in literary analysis and systematic theology, the article attempts to provide some answer to this question. It considers contemporary feminist and liberation theologians’ criticism of the common but problematic interpretation of Christ's cross, what is often called ‘substitutionary penal atonement.’ It compares (...) this with Anselm's atonement theory of satisfaction and Bernard Lonergan's and René Girard's analysis of the cross as a communication of love that invites others into loving relationship. With these interpretations of Christ's work, it concludes with some thoughts on how Christians might take up their own daily crosses. (shrink)

La responsabilité est la condition de notre humanité. Elle est protéiforme avec une prédominance pour la responsabilité pénale et la responsabilité civile. En quête de leurs origines, la seconde étant née dans l’ombre de la première, l’histoire nous montre l’existence de règles communes à de nombreuses civilisations comme le neminem laedere et la sanction de l’acte dommageable. Déroulant le fil des évolutions depuis l’Antiquité jusqu’aux codifications, les apports de chaque période sur les notions essentielles d’imputation et de culpabilité, de faute, (...) de dommage, de peine et de réparation permet de mettre en perspective les dispositions des projets de recodification du début du xxi e siècle. (shrink)

On the basis of a communicative theory of criminal punishment, I show how mercy has a significant but limited role to play in the criminal law—in particular (although not only) in criminal sentencing. Mercy involves an intrusion into the realm of criminal law of values and concerns that are not themselves part of the perspective of criminal law: a merciful sentencer acts beyond the limits of her legal role, on the basis of moral considerations that conflict with the demands of (...) penal justice. Sometimes, however (but in a decent system of law in a decent society, rarely), that is how citizens should act. Finally, I discuss, and criticise, two attempts to find a place for mercy within a communicative conception of punishment, and argue that repentance is not an appropriate ground for leniency or mercy in sentencing. (shrink)