In this chapter, I consider contemporary consequentialist theories of punishment. Consequentialist theories of punishment look to the consequences of punishment to justify the institution of punishment. Two types of theories fall into this category—teleology and aggregationism. I argue that teleology is implausible as it is based on a problematic assumption about the fundamental value of criminal punishment, and that aggregationism provides a more reasonable alternative. Aggregationism holds that punishment is morally justified because it is (...) an institution that helps society to aggregate important moral values. Several theories fall into this category, including general deterrence theories, specific deterrence theories, and preventionism. I critically evaluate these theories and argue that only one specific deterrence theory, namely, my rights-protection theory, provides the most reasonable consequentialist account of punishment. (shrink)

In this chapter, Lee considers contemporary consequentialist theories of punishment. Consequentialist theories look to the consequences of punishment to justify the institution of punishment. Two types of theories fall into this category—teleology and aggregationism. Lee argues that teleology is implausible because it is based on a problematic assumption about the fundamental value of criminal punishment. Aggregationism is a more reasonable alternative. It holds that punishment is morally justified because it is an institution that helps society (...) to aggregate important moral values. Several theories fall into this category, including general deterrence theories, specific deterrence theories, and preventionism. Lee critically evaluates these theories and argues that only one specific deterrence theory, namely, her rights-protection theory, provides the most reasonable consequentialist account of punishment. (shrink)

The Retributivist approach to punishment attempts to address the challenges posed by utilitarian conception that punitive actions should strictly be associated with a costeffective means to certain independently identifiable goods at the expense of justice. Justice proffers how the guilty deserve to be punished and no moral consideration relevant to punishment outweighs an offender’s criminal desert. However, this just desert provokes difficulty in discerning proportionality between the moral gravity of each offence and the specific penalties attached. (...) This consequently degenerates to another form of ‘lex talionis’ (revenge) in punitive justice. (shrink)

Despite the bad press that retributivism often receives, the basic assumptions on which this theory of punishment rests are generally regarded as being attractive and compelling. First of these is the assumption that persons are morally responsible agents and that social practices, such as criminal punishment, must acknowledge that fact. Additionally, retributivism is committed to the claim that punishment must be proportionate to the crime, and not determined by such utilitarian concerns as the welfare of society, (...) or the hope of deterring other criminals. Because the most commonly discussed version of retributivism is developed from Kant's moral and legal theory, I will refer to it as Kantian Retributivism. Despite its appeal, Kantian Retributivism cannot provide a satisfactory response to a kind of case that is receiving increasingly serious consideration in philosophical literature. The case is this: Many crimes are committed by individuals profoundly disadvantaged by unjust social institutions, such as racism, classism, and/or sexism. If such individuals commit crimes, the retributivist is placed in a very difficult position: Either she must claim that the individual has willfully committed a crime and for that reason deserves punishment, seeming to ignore entirely the social background of the individual, or she can claim that the individual—in virtue of being disadvantaged by social injustices(s)—does not deserve punishment because such punishment would be unfair. I have argued elsewhere that neither strategy is tenable. (shrink)

Mixed theories of legal punishment treat both crime reduction and retributive concerns as irreducibly important and so worthy of inclusion in a single justificatory framework. Yet crime reduction and retributive approaches employ different assumptions about the necessary characteristics of those liable to punishment. Retributive accounts of legal punishment require offenders to be more responsive to moral considerations than do crime reduction accounts. The tensions these different assumptions create are explored in the mixed theories of John Rawls, (...) H. L. A. Hart, and Andrew von Hirsch. It is argued that none of these theories successfully resolve the tensions. The prospects for resolving them are then discussed. (shrink)

Despite the bad press that retributivism often receives, the basic assumptions on which this theory of punishment rests are generally regarded as being attractive and compelling. First of these is the assumption that persons are morally responsible agents and that social practices, such as criminal punishment, must acknowledge that fact. Additionally, retributivism is committed to the claim that punishment must be proportionate to the crime, and not determined by such utilitarian concerns as the welfare of society, (...) or the hope of deterring other criminals. Because the most commonly discussed version of retributivism is developed from Kant's moral and legal theory, I will refer to it as Kantian Retributivism. Despite its appeal, Kantian Retributivism cannot provide a satisfactory response to a kind of case that is receiving increasingly serious consideration in philosophical literature. The case is this: Many crimes are committed by individuals profoundly disadvantaged by unjust social institutions, such as racism, classism, and/or sexism. If such individuals commit crimes, the retributivist is placed in a very difficult position: Either she must claim that the individual has willfully committed a crime and for that reason deserves punishment, seeming to ignore entirely the social background of the individual, or she can claim that the individual—in virtue of being disadvantaged by social injustices(s)—does not deserve punishment because such punishment would be unfair. I have argued elsewhere that neither strategy is tenable. (shrink)

Christopher Bennett presents a theory of punishment grounded in the practice of apology, and in particular in reactions such as feeling sorry and making amends. He argues that offenders have a 'right to be punished' - that it is part of taking an offender seriously as a member of a normatively demanding relationship that she is subject to retributive attitudes when she violates the demands of that relationship. However, while he claims that punishment and the retributive attitudes (...) are the necessary expression of moral condemnation, his account of these reactions has more in common with restorative justice than traditional retributivism. He argues that the most appropriate way to react to crime is to require the offender to make proportionate amends. His book is a rich and intriguing contribution to the debate over punishment and restorative justice. (shrink)

Kant's theory of punishment is commonly regarded as purely retributive in nature, and indeed much of his discourse seems to support that interpretation. Still, it leaves one with certain misgivings regarding the internal consistency of his position. Perhaps the problem lies not in Kant's inconsistency nor in the senility sometimes claimed to be apparent in the Metaphysic of Morals, but rather in a superimposed, modern yet monistic view of punishment. Historical considerations tend to show that Kant was (...) discussing not one, but rather two facets of punishment, each independent but nevertheless mutually restrictive. Punishment as a threat was intended to deter crime. It was a tool in the hands of civil society to counteract human drives toward violating another's rights. In its execution, however, the state was limited in its reaction by a retributive theory of justice demanding respect for the individual as an end and not as a means to some further social goal. This interpretation of Kant's theory of punishment maintains consistency from the earliest through the latest of his writings on moral, legal, and political philosophy. It provides a good reason for rejecting current economic analyses of crime and punishment. Most important of all, it credits Kant's theory in its clear recognition of the ideals intrinsic to libertarian government. (shrink)

Green agrees with Kant on the abstract character of moral law as categorical imperatives and that intentional dispositions are central to a moral justification of punishment. The central problem with Kant's account is that we are unable to know these dispositions beyond a reasonable estimate. Green offers a practical alternative, positing moral law as an ideal to be achieved, but not immediately enforceable through positive law. Moral and positive law are bridged by Green's theory (...) of the common good through the dialectic of morality. Thus, Green appears to offer an alternative that remains committed to Kantian morality whilst taking proper stock of our cognitive limitations. Unfortunately, Green fails to unravel fully Kant's dichotomy of moral and positive law that mirrors Green's solution, although Green offers a number of improvements, such as the importance of the community in establishing rights and linking the severity of punishment to the extent that a criminal act threatens the continued maintenance of a system of rights. (shrink)

Following extended periods of conflict or repression, political reconciliation is indispensable to the establishment or restoration of democratic relationships and critical to the pursuit of peacemaking globally. In this book, Colleen Murphy offers an innovative analysis of the moral problems plaguing political relationships under the strain of civil conflict and repression. Focusing on the unique moral damage that attends the deterioration of political relationships, Murphy identifies the precise kinds of repair and transformation that processes of political reconciliation ought (...) to promote. Building on this analysis, she proposes a normative model of political relationships. A Moral Theory of Political Reconciliation delivers an original account of the failure and restoration of political relationships, which will be of interest to philosophers, social scientists, legal scholars, policy analysts, and all those who are interested in transitional justice, global politics, and democracy. (shrink)

A distinctive theory of punishment plays a central role in Smith's moral and legal theory. According to this theory, we regard the punishment of a crime as deserved only to the extent that an impartial spectator would go along with the actual or supposed resentment of the victim. The first part of this paper argues that Smith's theory deserves serious consideration and relates it to other theories such as utilitarianism and more orthodox forms (...) of retributivism. The second part considers the objection that, because Smith's theory implies that punishment is justified only when there is some person or persons who is the victim of the crime, it cannot explain the many cases where punishment is imposed purely for the public good. It is argued that Smith's theory could be extended to cover such cases. The third part defends Smith's theory against the objection that, because it relies on our natural feelings, it cannot provide an adequate moral justification of punishment. (shrink)

In a paper published in 2006, I argued that the best way of defending something like our current practices of punishing war criminals would be to base the justification of this practice on an expressive theory of punishment. I considered two forms that such a justification could take—a ‘denunciatory’ account, on which the purpose of punishment is supposed to communicate a commitment to certain kinds of standard to individuals other than the criminal and a ‘communicative’ account, on (...) which the purpose of the punishment is to communicate with the perpetrator, and argued for a denunciatory account which I developed at some length. In this paper I would like to reconsider the plausibility of a communicative account. One difficulty that such accounts face is that the punishment of war criminals often involves the inflicting of harsh treatment on them by individuals who are members of states other than their own. On a communicative account this is problematic: on such an account—or at least on the version of it proposed by Duff (2000)—it is essential that those who are punish and those who punish them belong to a single community. When this requirement is not satisfied harsh treatment does not constitute punishment. Duff has argued that the problem can be solved by regarding all human beings as members of a single moral community: here I argue that this suggestion is unsatisfactory and propose an alternative. One consequence of my account is that if it is correct there may limitations on the range of kinds of war criminal that can legitimately be punished by international tribunals. (shrink)

G. W. F. Hegel’s theory of punishment has been most often thought to fit within a particular penal camp. The most popular interpretation is that this theory is retributivist because criminals should only be punished only where deserved in an effort to “annul” crime. Others believe this theory is a theory of moral education whereby criminals come to understand their crimes as wrongs in an effort to reform their behaviour. These interpretations all fail to (...) acknowledge the novelty of Hegel’s theory of punishment. Hegel’s originality consists in offering the first unified theory of punishment. A unified theory of punishment aspires to offer a single, coherent theory of punishment that brings together retributivist, deterrent, and rehabilitative elements without substantial conflict. We can find similar unified theories of punishment amongst Hegel’s earliest defenders, the British Idealists (or “British Hegelians”), who helped to popularize Hegel’s philosophical contributions in the late nineteenth century. Thus, Hegel’s novel theory of punishment marks the beginning of a new tradition concerning how we might think about punishment. (shrink)

The most widespread interpretation amongst contemporary theorists of Kant's theory of punishment is that it is retributivist. On the contrary, I will argue there are very different senses in which Kant discusses punishment. He endorses retribution for moral law transgressions and consequentialist considerations for positive law violations. When these standpoints are taken into consideration, Kant's theory of punishment is more coherent and unified than previously thought. This reading uncovers a new problem in Kant's (...) class='Hi'>theory of punishment. By assuming a potential offender's intentional disposition as Kant does without knowing it for certain, we further exacerbate the opportunity for misdiagnosis. (shrink)

One way out to avoid this tension is to adopt what legal theorists call a “mixed theory,” which presents the different penal elements as answering to different concerns. For example, one could hold that the justification of the institution of punishment requires a consequentialist answer focussed on various types of deterrence aimed at promoting social well-being, but that the distribution of actual punishments is decided in terms of desert and the degree of moral culpability of the criminal. (...) This is the type of mixed theory A. J. Milne claimed to have found in Green’s Lectures on the Principles of Political Obligation. By contrast, Bradley is often interpreted as holding the converse mixed theory, according to which a right to punish is established via some retributive argument but, once this right is established, consequentialist considerations can then be introduced to determine the actual punishments doled out. The passage usually cited includes this sentence: “Having once the right to punish, we may modify the punishment according to the useful and the pleasant.”. (shrink)

Saul Smilansky holds that there is a widespread intuition to the effect that pre-punishment – the practice of punishing individuals for crimes which they have not committed, but which we are in a position to know that they are going to commit – is morally objectionable. Smilanksy has argued that this intuition can be explained by our recognition of the importance of respecting the autonomy of potential criminals. (Smilansky, 1994) More recently he has suggested that this account of the (...) intuition only vindicates it if determinism is false, and argues that this presents a problem for compatibilists, who, he says, are committed to thinking that the truth of determinism makes no moral difference (Smilansky, 2007).In this paper I argue that the intuitions Smilansky refers to can be explained and vindicated as consequences of the truth of a communicative conception of punishment. Since the viability of the communicative conception does not depend on the falsity of determinism, our intuitions about pre-punishment do not clash with (what Smilanksy calls) compatibilism. And if the communicative theory of punishment is – as Duff (2001) suggests – a form of retributivism, the account also meets New's (1992) challenge to retributivists to explain what is wrong with pre-punishment. (shrink)

The rights-forfeiture theory of punishment attempts to explain and justify the practice of punishment by arguing that wrongdoers in virtue of their wrongdoing have forfeited the right not to be punished. The theory however faces many challenges, including how to explain just what right or rights have been forfeited. Most problematic for the theory is that, in claiming that wrongdoers forfeit their rights, it seems merely to restate the claim that punishment is morally permissible (...) rather than providing an explanation of why it is permissible. (shrink)

"This book argues for a mixed view of punishment that balances consequentialism and retributivism. He has published extensively on philosophy and applied ethics. A central question in the philosophy of law is why the state's punishment of its own citizens is justified. Traditionally, two theories of punishment have dominated the field: consequentialism and retributivism. According to consequentialism, punishment is justified when it maximizes positive outcomes. According to retributivism, criminals should be punished because they deserve it. This (...) book defends a mixed view that recognizes the strength of both of these intuitions. By this account, the legislature should develop institutional policies and statutory penalties that maintain the social order, that is, consequentialism. It establishes punishment policies to deter criminal activity. By contrast, the criminal judiciary should give individual defendants what they deserve, that is, retributivism and thus expressing the community's appropriate sense of resentment at being wronged. The book justifies the two-tiered model by showing how it accords with our moral intuitions, our assumptions about how what we know affects our moral obligations, and a commonly held theory of freedom. This approach is developed by engaging classic and contemporary work in the philosophy of law, and shows its advantages over competing approaches from contemporary retributivists and other mixed theorists. The work also defends consequentialism against a longstanding objection that the social sciences give us little guidance regarding which policies to adopt. It draws on cutting-edge criminological research to show how punishment theory can help us to address some of our most pressing social issues, including the death penalty, drug laws, and mass incarceration. The book will also be of interest to legal philosophers, social scientists, especially criminologists, sociologists, economists, and political scientists"--. (shrink)

In this essay, I address one methodological aspect of Victor Tadros's The Ends of Harm-­-­namely, the moral character of the theory of criminal punishment it defends. First, I offer a brief reconstruction of this dimension of the argument, highlighting some of its distinctive strengths while drawing attention to particular inconsistencies. I then argue that Tadros ought to refrain from developing this approach in terms of an overly narrow understanding of the morality of harming as fully unified and (...) reconciled under the lone heading of justice. In a final and most critical section, I offer arguments for why this reconciliatory commitment, further constrained by a misplaced emphasis on corrective justice, generates major problems for his general deterrence account of the core justification of criminal punishment. (shrink)

A deterrence theory of punishment holds that the institution of criminal punishment is morally justified because it serves to deter crime. Because the fear of external sanction is an important incentive in crime deterrence, the deterrence theory is often associated with the idea of severe, disproportionate punishment. An objection to this theory holds that hope of escape renders even the severest punishment inapt and irrelevant. -/- This article revisits the concept of deterrence and (...) defend a more plausible deterrence theory of punishment—the wide-scope deterrence theory. The wide-scope theory holds that we must make the best use of all the deterrence tools available, including both external and internal sanctions. Drawing on insights from the early Confucian tradition, the article develops a deep deterrence theory, which holds that the most important deterrence tool involves internal, not external, sanction. It describes how internal sanctions deter potential offenses and why relevant policies need not conflict with liberalism’s respect for neutrality. (shrink)

First published in 1929, this book explores the crucial, ethical question of the objects and the justification of punishment. Dr. A. C. Ewing considers both the retributive theory and the deterrent theory on the subject whilst remaining commendably unprejudiced. The book examines the views which emphasize the reformation of the offender and the education of the community as objects of punishment. It also deals with a theory of reward as a compliment to a theory (...) of punishment. Dr. Ewing’s treatment of the topics is philosophical yet he takes in to account the practical considerations that should determine the nature and the amount of the punishment to be inflicted in different types of cases. This book will be of great interest to students of philosophy, teachers and those who are interested in the concrete problems of punishment by the state. It is an original contribution to the study of a subject of great theoretical and practical importance. (shrink)

Bennett focuses on four interconnected criticisms of consequentialist theories of punishment. The first criticism says that consequentialist theories wrongfully treat it as permissible to punish an innocent person if doing so will lead to optimal consequences. The second criticism says that consequentialist theories allow the treatment of offenders (and others) as mere means. The third criticism says that consequentialist theories fail to respect offenders as moral agents. The fourth criticism says that consequentialist theories recommend responses to wrongdoing that (...) ignore or displace other valuable forms of human relation. Bennett argues that such criticisms are better thought of as criticisms of a specific form of consequentialism rather than consequentialism as such. The question of whether the whole consequentialist approach is problematic is much more complex. While Bennett does not try in this chapter to resolve that latter question, he looks at some of the considerations that bear on it. (shrink)

There seems to be nearly universal agreement that society cannot do without some form of criminal punishment. At the same time, it is generally acknowledged that punishment, involving as it does the imposition of hardship and suffering, stands in need of justification. What form such a justification should take, however, is a matter of considerable contention, in part because of basic theoretical disagreements on the nature of moral obligation, and in part because of disagreements concerning the nature (...) and purpose of criminal punishment itself.These disagreements have given rise to a number of rival ‘theories’ of punishment - rival accounts of the purposes of punishment and the conditions which justify it. The traditional theories can be broadly categorized as deterrence theories, incapacitation theories, retributive theories, and rehabilitative theories. My purpose here is to contribute to this discussion on punishment by introducing a largely overlooked theory of punishment, one whose outlines can be found in the writings of Simone Wei!, but which has yet to be fully developed and discussed. This theory, which I call the ‘reintegrative theory,’ has, I believe, a number of advantages over more traditional theories of punishment. (shrink)

The lex talionis of the Old Testament has been widely perceived—understandably, but mistakenly—as a barbaric law of retribution in kind. It is better understood as a seminal expression of restraint and proportionality as moral principles of punishment. This has been recognized from the earliest times. Over the intervening centuries, the lex talionis has lost neither its moral significance nor its penal relevance. This is reflected in H.L.A. Hart's synthesis of modern retributivist and utilitarian theories of punishment (...) and, again, in contemporary Canadian law through the recognition of proportionality as the fundamental principle of sentencing under the Criminal Code. The tension between this fundamental principle and Canada's increasing resort to mandatory minimum sentences of imprisonment is examined briefly in this light. (shrink)

Recent work in social psychology suggests that people harbor “implicit race biases,” biases which can be unconscious or uncontrollable. Because awareness and control have traditionally been deemed necessary for the ascription of moral responsibility, implicit biases present a unique challenge: do we pardon discrimination based on implicit biases because of its unintentional nature, or do we punish discrimination regardless of how it comes about? The present experiments investigated the impact such theories have upon moral judgments about racial discrimination. (...) The results show that different theories differ in their impact on moral judgments: when implicit biases are defined as unconscious, people hold the biased agent less morally responsible than when these biases are defined as automatic (i.e., difficult to control), or when no theory of implicit bias is provided. (shrink)

In the middle of the twentieth century, many philosophers came to believe that the problem of morally justifying punishment had finally been solved. Defended most famously by Hart and Rawls, the so-called “Mixed Theory” of punishment claimed that justifying punishment required recognizing that the utilitarian and retributive theories were in fact answers to two different questions: utilitarianism answered the question of why we have punishment as an institution, while retribution answered the question of how to (...) punish individual wrongdoers. We could thus reconcile the two great competing theories of punishment, and show how they were both right and not in conflict at all. Unfortunately, it gradually became apparent that the solution would not work. This essay attempts to set out thereasons why the Mixed Theory was bound to fail, and why the problem of reconciling the utilitarian and retributive goals remains with us. -/- In this paper, Stephen Kershnar argues that character alone grounds desert. He begins by arguing that desert is grounded by a person’s character, action, or both. In the second section, He defends the claim that character grounds desert. His argument rests on intuitions that other things being equal, it would be intrinsically better for virtuous persons to flourish and vicious persons suffer than vice versa. In the third section, he argues that actions do not ground desert. He gives three arguments in support of this claim. First, there is little intuitive support for this supposed ground and to the extent that there is support, it is undermined when we consider what causes character and acts to diverge. Second, this type of desert doesn’t fit with a unifying account of the different aspects of intrinsic value. Third, the most plausible version of act-based desert leaves it unclear why acts should ground desert. (shrink)

This paper argues that Han Fei provides us with a theory of punishment that needs not rely upon any sort of moral justification. Furthermore, feelings, including those of disgust, resentment, and anger, are completely irrelevant to the question of punishment. Rather, punishment is simply seen as a mechanistic tool that is employed when some aspect of the political system breaks down, such as when a minister’s proposals do not match their deeds or their deeds do (...) not match their job description. These ideas are quite closely tied to his views on desert, a concept of desert quite different from what we see in the West. Not only does his view lack certain elements that Western desert theorists such as Joel Feinberg consider essential to the very concept of desert, he is quite conscious of this lack and provides a defense of his view. In particular, he offers a conception of desert that does not require that it be conceptually and morally prior to social institutions. As such, Han Fei provides us with a unique lens through which to analyze punishment and its justification that is importantly different from either retributivist or consequentialist justifications. (shrink)

Indeterminate sentencing is a sentencing practice where offenders are sentenced to a range of potential imprisonment terms and where the actual release date is determined later, typically by a parole board. Although indeterminate sentencing is often considered morally problematic from a retributivist perspective, Michael O’Hear has provided an interesting attempt to reconcile indeterminate sentencing with the communicative version of retributivism developed by Antony Duff. O’Hear’s core argument is that delayed release, within the parameters of the indeterminate sentence, can be seen (...) as an appropriate retributivist response to the violations of prison rules. This article highlights several problems in O’Hear’s proposal and argues that the communicative theory is not easily reconciled with his proposed model for indeterminate sentencing. In conclusion, it is argued that proponents of the communicative version of retributivism should resist indeterminate prison sentences. (shrink)

In the middle of the twentieth century, many philosophers came to believe that the problem of morally justifying punishment had finally been solved. Defended most famously by Hart and Rawls, the so-called “Mixed Theory” of punishment claimed that justifying punishment required recognizing that the utilitarian and retributive theories were in fact answers to two different questions: utilitarianism answered the question of why we have punishment as an institution, while retribution answered the question of how to (...) punish individual wrongdoers. We could thus reconcile the two great competing theories of punishment, and show how they were both right and not in conflict at all. Unfortunately, it gradually became apparent that the solution would not work. This essay attempts to set out thereasons why the Mixed Theory was bound to fail, and why the problem of reconciling the utilitarian and retributive goals remains with us. (shrink)

This paper is a critical examination of Odera Oruka’s theory of punishment in his Punishment and Terrorism in Africa. It argues that although Oruka clearly highlights the weaknesses of the Retributionist and Utilitarian accounts of punishment and therefore calls for the Reformist view of ‘treating both the criminal and society’, he is mistaken in calling for the abolition of punishment simply because it cannot reform the criminal. The paper contends that the reform of the criminal (...) is only one major function of punishment and not the only one, and so we cannot call for its abolition on the basis of this single consideration. The paper further urges that Oruka’s theory of punishment is rather deterministic: according to him, the criminal commits the crime because of the criminal forces which he or she has very little control over, so that he or she cannot be held morally responsible for his or her actions. (shrink)

In this article I spell out a conception of dignity grounded in African moral thinking that provides a plausible philosophical foundation for human rights, focusing on the particular human right not to be executed by the state. I first demonstrate that the South African Constitutional Court’s sub-Saharan explanations of why the death penalty is degrading all counterintuitively entail that using deadly force against aggressors is degrading as well. Then, I draw on one major strand of Afro-communitarian thought to develop (...) a novel conception of dignity as the view that what is special and inviolable about human nature is our capacity for harmonious relationships. I argue that a principle of respect for the dignity of such a capacity entails that the death penalty is an indignity but that deadly force in self- or other-defense need not be, and I contend that this African- inspired principle promises to do no worse than the more Western, Kantian principle of respect for autonomy at accounting for a broad range of human rights. (shrink)

George Sher's theory of deserved punishment is unable to account for cases in which wrongdoing does not result in unfair advantages. Sher attempts to connect punishment with distributive justice by suggesting that punishment is deserved inasmuch as the unfair advantage gained by wrongdoing is offset. According to Sher's diachronic theory of fairness, punishment is also deserved when it occurs in response to transgression of a first-order ethical norm. A problem for the theory concerns (...) the justification it provides for disparate treatment of wrongdoers who are morally indistinguishable. (shrink)

George Sher's theory of deserved punishment is unable to account for cases in which wrongdoing does not result in unfair advantages. Sher attempts to connect punishment with distributive justice by suggesting that punishment is deserved inasmuch as the unfair advantage gained by wrongdoing is offset. According to Sher's diachronic theory of fairness, punishment is also deserved when it occurs in response to transgression of a first-order ethical norm. A problem for the theory concerns (...) the justification it provides for disparate treatment of wrongdoers who are morally indistinguishable. (shrink)

The article deals with the problem of moral justification of humanitarian intervention by modern just war theorists. At the beginning of the article, we discuss the evolution of the dominant paradigms of the moral justification of war and explain why the theory and practice of humanitarian intervention appears only at the present stage of the development of ethics and the law of war. It is noted that theorization of humanitarian intervention began in the last decades of the (...) 20thcentury. This is due to a significant transformation, a retreat in the legal and ethical studies of war from the position of radical condemnation of aggressive actions and the recognition of the political subjectivity of non-state groups. Thus, there is a rethinking of the long tradition, the Westphalian system of international relations, according to which the state was recognized as the main participant of big politics, and its sovereign right to conduct domestic policy was considered indisputable. Further, we take the works of Michael Walzer as the main source of modern conceptualization of the ethics of humanitarian interventionism, since Walzer repeatedly addressed this topic and formulated a position on this issue that is representative of the entire modern Just War Theory. The arguments of Walzer and his supporters in favor of the moral justification of humanitarian intervention are considered. Among them are the following. First, the argument about the state as an organization which goal is to protect the rights of its own citizens. If this goal is not not achieved, the state shall loose its power over these people and in this territory. Second, Walzer calls for identifying governments and armed forces involved in mass murders as criminal and, therefore, deserving of punishment. Finally, there is, perhaps the most important, demonstrative argument: an appeal to the self-evident impossibility to stand aside in cases of mass violence in any state. This is followed by a critique of these arguments, as well as a demonstration of how the modern Just War Theory can respond to these criticisms. (shrink)

This book is the first comprehensive study of the meaning and measure of enforceability. While we have long debated what restraints should govern the conduct of our social life, we have paid relatively little attention to the question of what it means to make a restraint enforceable. Focusing on the enforceability of legal rights but also addressing the enforceability of moral rights and social conventions, Mark Reiff explains how we use punishment and compensation to make restraints operative in (...) the world. After describing the various means by which restraints may be enforced, Reiff explains how the sufficiency of enforcement can be measured, and he presents a unified theory of deterrence, retribution, and compensation that shows how these aspects of enforceability are interconnected. Reiff then applies his theory of enforceability to illuminate a variety of real-world problem situations. (shrink)

Introspection is a fundamental part of our mental lives. Nevertheless, its reliability and its underlying cognitive architecture have been widely disputed. Here, I propose a principled way to model introspection. By using time-tested principles from signal detection theory (SDT) and extrapolating them from perception to introspection, I offer a new framework for an introspective signal detection theory (iSDT). In SDT, the reliability of perceptual judgments is a function of the strength of an internal perceptual response (signal- to-noise ratio) (...) which is, to a large extent, driven by the intensity of the stimulus. In parallel to perception, iSDT models the reliability of introspective judgments as a function of the strength of an internal introspective response (signal-to-noise ratio) which is, to a large extent, driven by the intensity of conscious experiences. Thus, by modelling introspection after perception, iSDT can calibrate introspection’s reliability across a whole range of contexts. iSDT offers a novel, illuminating way of thinking about introspection and the cognitive processes that support it. (shrink)

Cultural evolution, producing group‐level adaptations, is more problematic than the cultural evolution of individually confirmable skills, but it probably has occurred. The “conformist transmission,” described by Boyd and Richerson (1985), leads local social units to become homogeneous in anadaptive, as well as adaptive, beliefs. The resulting intragroup homogeneity and inter‐group heterogeneity makes possible a cultural selection of adaptive group ideologies.All archaic urban, division‐of‐labor social organizations had to overcome aspects of human nature produced by biological evolution, due to the predicament of (...) genetic competition among the cooperators. The universal norms found in archaic moral systems are seen as curbs to this human nature, reinforced by beliefs in invisible sanction systems and rewarding and punishing afterlives (as in heaven or reincarnation). Perhaps the ubiquity of lavishly wasteful royal funerals is to be explained as contributing to this function. (shrink)

This book advances a new interpretation of Hart's penal philosophy. Positioning itself in opposition to current interpretations, the book argues that Hart does not defend a mixed theory of punishment, nor a rule-utilitarian theory of punishment, nor a liberal form of utilitarianism, nor a goal and constraint approach. Rather, it is argued, his penal philosophy is based on his moral pluralism, which comprises two aspects: value pluralism and pluralism with respect to forms of moral (...) reason. It is held that this means, on the one hand, that criminal law has an irreducible complexity due to the compromises it makes to accommodate competing values, and on the other hand, that there need not be one single justification of punishment. This original interpretation is not based only on Hart's key volume on the subject Punishment and Responsibility, but on a careful reading of his complete works. The book will be a valuable resource for academics and researchers interested in Hart's philosophy, the philosophy of law and criminal law. (shrink)

This article seeks to reveal, conceptualize, and analyze a trend in the development of the retributive theory of punishment since the beginning of the 21st century. We term this trend “retributarianism.” It is reflected in the emergence of retributive approaches that through expanding the concepts of censure and culpability extend the relevant time-frame for assessing the deserved punishment beyond the sentencing moment. These retributarian approaches are characterized by the individualization of retributivism. On one hand, retributarianism shares with (...) classic retributivism the rhetoric of justice, a focus on the moral evaluation of the severity of the offense, and the primary importance ascribed to maintaining proportionality. On the other hand, it shares with utilitarianism the possibility of taking into account, in addition to the severity of the offense, the offender’s personal circumstances, with a future-oriented perspective that also considers developments subsequent to the commission of the offense. This article analyzes the emergence of retributarianism, suggests possible explanations for its development, and assesses its possible implications for penal theory and policy. (shrink)

This chapter contains section titled: Introduction Mill as an Act‐Utilitarian Mill as a Rule‐Utilitarian Moral Rules, Justice, and Supererogation Mill's Theory of the Right and “The Art of Life”.

In this chapter, we discuss a selection of current views of the neural correlates of consciousness (NCC). We focus on the different predictions they make, in particular with respect to the role of prefrontal cortex (PFC) during visual experiences, which is an area of critical interest and some source of contention. Our discussion of these views focuses on the level of functional anatomy, rather than at the neuronal circuitry level. We take this approach because we currently understand more about experimental (...) evidence at this coarse level and because these results are appropriate for arbitrating between current theoretical frameworks. We discuss the Two-Visual-Systems Hypothesis (Milner & Goodale 1995; 2006), Local Recurrency (Lamme 2010; Lamme 2006), Higher Order (Lau 2008; Lau & Rosenthal 2011) and Global Workspace theories (Baars 1997; Baars 2005; Dehaene & Naccache 2001; Dehaene 2014). Despite the apparent stark differences between conscious and unconscious perceptual processing, available evidence suggests that their neural substrates must be largely shared. This indicates that the difference in neural activity between conscious and unconscious perceptual processing is likely to be subtle and highly specialized. We argue that current experimental evidence about the involvement of specific activity in prefrontal cortex supports the higher order neural theory of consciousness. In consequence, imaging techniques that focus only on marked differences between conscious and unconscious level of activity are likely to be insensitive to the relevant neural activity patterns that underlie conscious experiences. Finally, it follows from the evidence we discuss that the functional advantages of conscious over unconscious perceptual processing may be more limited than commonly thought. (shrink)

Human morality may be thought of as a negative feedback cotrol system in which moral rules are reference values, and moral disapproval, blame, and punishment are forms of negative feedback given for violations of the moral rules. In such a system, if moral agents held each other accountable, moral norms would be enforced effectively. However, even a properly functioning social negative feedback system could not explain acts in which individual agents uphold moral rules (...) in the face of contrary social pressure. Dr. Frances Kelsey, who withheld FDA approval for thalidomide against intense social pressure, is an example of the degree of individual moral autonomy possible in a hostile environment. Such extreme moral autonomy is possible only if there is internal, psychological negative feedback, in addition to external, social feedback. Such a cybernetic model of morality and moral autonomy is consistent with certain aspects of classical ethical theories. (shrink)