In Punishment and the History of Political Philosophy, Arthur Shuster offers an insightful study of punishment in the works of Plato, Hobbes, Montesquieu, Beccaria, Kant, and Foucault.

I argue that the evolutionary history of anger has substantive implications for normative ethics. In the process, I develop an evolutionary account of anger and its influence on action. First, I consider a prominent argument by Peter Singer and Joshua Greene. They conclude that evolutionary explanations of human cooperation debunk – or undercut the evidential value of – the moral intuitions supporting duty ethics (as opposed to utilitarian or consequentialist ethics). With this argument they aim to defend consequentialist theories. (...) However, their argument also threatens to debunk intuitions that support consequentialist theories. I give a novel argument that overcomes this difficulty. Specifically, I offer an evolutionary story about anger that can explain retributive, duty-oriented intuitions concerning punishment. This explanation debunks these intuitions (and not others) by showing that they were selected for their biological consequences rather than their accuracy (concerning duties to punish). I develop this explanation by raising and resolving three additional problems. First, prominent evolutionary explanations of retributive motives fail because they appeal to models that apply only to organisms with strategic insight. To mitigate this problem, I explain the existence of a retributive-like motive in rodents by appealing to an economic model of resource competition, which applies to organisms without strategic insight. Second, I show that human anger was shaped by resource competition of this kind. To do so, I develop evidential criteria to determine when psychological systems in different species share common evolutionary origins. I deploy these criteria to argue that human anger and the retributive motive in rodents derive from the same ancestral trait. Finally, the continuity of anger across human and nonhuman animals stands in tension with the idea that anger causes purposive behavior like retribution or retaliation. I argue that differences between the angry behaviors of human and nonhuman animals are differences in degree and not in kind. In the end, this evolutionary story both explains and undermines retributive intuitions, but not in the straightforward way that Singer and Greene suppose. (shrink)

These are some of the many questions contemplated in these essays, which explore the contributions of nine major thinkers and traditions regarding the question of punitive justice.

Written by interdisciplinary authors from the fields of educational policy, early childhood education, history, political philosophy, law, and moral philosophy, this volume addresses the use of disciplinary action across varied educational contexts. Much of the punishment of children occurs in non-criminal contexts, in educational and social settings, and schools are institutions where young people are subject to disciplinary practices and justifications that are quite unlike those found elsewhere. In addition to this, the discipline they receive is often discriminatory, (...) being disproportionately focused on students of colour and other minoritized identities, and unjust in other ways. This timely text is a comprehensive examination of punishment in schools, prompting discussions on racial equity, social justice in education and the school to prison pipeline. Each chapter offers empirically informed, theoretical investigations into punishment in educational settings, including how punishment is understood, whether it is permissible to discipline students, and whether such punishment can be considered educational. (shrink)

The reform of offenders is often said to be one of the morally legitimate aims of punishment. After briefly surveying the history of reformist thinking I examine the ‘quasi-reform’ theories, as I call them, of H. Morris, J. Hampton and A. Duff. I explain how they conceive of reform, and what role they take it to have in the criminal justice system. I then focus critically on one feature of their conception of reform, namely, the claim that a (...) reformed offender will obey the relevant laws for moral reasons. I argue on consequentialist grounds that this requirement is objectionable. Consequentialism has always accepted reform as one legitimate goal of punishment, but it will not accept the narrowly moral conception of it that we find in the quasi-reform theorists. I situate my criticism within criminal law theory, but I also consider the claim in moral theory that acting from moral motives has intrinsic value. (shrink)

Linda Radzick's new book, _The Ethics of Social Punishment_, contains an important discussion of punishment outside the context of the state. By way of celebrating this fine and welcome book, I try to probe some analytical contours concerning punishment seen from the general perspective on which Radzick and I agree. I suggest altogether abandoning the idea that (non-state) punishment needs to be inflicted by an authority. Furthermore, I insist on an account of retributivism that resists the usual (...) accusations of barbarism and bloodthirstiness. (shrink)

The fair-play theory of punishment claims that the state is justified in imposing additional burdens on law-breakers, to remove the unfair advantage the latter have enjoyed by disobeying the law. From this perspective, punishment reestablishes a fair distribution of benefits and burdens among all citizens. In this paper, I object to this view by focusing on the case of civil disobedience. I argue that the mere illegality of this conduct is insufficient to establish the agent’s unfair advantage over (...) his lawabiding fellows, hence the imposition of additional burdens upon him through legal punishment. I articulate a broader account of citizens’ fair-play duties, able to capture disobedience as well as obedience to the law. While claiming that some law-breakers may not be treated as free-riders, I also gesture at the fact that some law-obeying citizens may not be ‘playing fair’: in some cases, a failure to engage in civil disobedience represents a failure to do one’s own part within the cooperative scheme of society. (shrink)

The doctrine of reincarnation is endorsed by various philosophers in both the Western and Eastern traditions. This paper will explore the relationship between reincarnation and legal punishment. Three competing views of reincarnation will be analyzed on this issue: Plato's work on Socrates, the Bhagavad Gita, and Mahayana Buddhism. Each view presents interesting, but different perspectives on how our view of the person might affect how we punish. The paper will claim that there are practical implications on the administration of (...) justice linked witli each view of reincarnation. Rather than an area we should neglect, perhaps we miglit improve our understanding of punishment in our societj' when we better account for the beliefs held by members of the society. Key words: Buddhism, death, Hinduism, Mahayana, Plato, punishment, reincarnation, Socrates Then the Lord said, 'Now that the man has become as we are, knowing good from bad, what i f he eats the fruit of the Tree of Life and lives forever?' Genesis 4:22. (shrink)

Abstract Michel Foucault has been an academic cause célèbre for some time, spaivning untold thesis papers and dissertations illuminating oppression's invisible fingerprints on history, literature, gender, and government. Yet for all his ceutrality in American higher education, Foucault's books are not studied so much for their substantative content as for their underlying insights into the forces shaping society. This paper confronts this paradox through a critique of the apotheosis of Foucaultian analysis, Discipline and Punish: The Birth of the Prison. (...) Discipline and Punish can be understood as a masterful harnessing of leftist assumptions about capitalism to reconfigure history. The extent to which Foucault distorts history to support his thesis, however, seriously undermines the practical relevance of his brand of social science. (shrink)

Name der Zeitschrift: Journal of Ancient History Jahrgang: 4 Heft: 2 Seiten: 240-264.

The piece returns to my earlier challenges of retributivism as the basis of contemporary criminal law, advancing my work on republican political justifications that make central the effect of punishment on citizenship. In short, the justification of punishment should eschew individual retributivist “desert” and focus primarily on the effects of punishment on the entire polity. In particular, this would mean that the effects of mass incarceration would be explicitly a part of justification of punishment. Concretized, members (...) of communities where widespread punishment (incarceration) has damaged collective civic health should explicitly receive discounts on otherwise “retributively justified” punishment. Most obviously, a regime focused on the effect of punishment on civic bonds would explicitly target the vast racial disparities in contemporary punishment regimes, grounding an explicit claim that an African-American or Hispanic defendant from overly punished communities should be punished less and requiring other state resources to secure the safety of the community. While critical, this regime is not solely aimed at racial disparities. This principle would equally address the concentration of punishment in poor, white communities often battered by punishment and policing. Thus, the policy shows a way of building allies across racial lines. (shrink)

Philosophers have highlighted a dilemma for the criminal law. Unjust, racist policies in the United States have produced conditions in which the dispossessed are more likely to commit crime. This complicity undermines the standing of the state to blame their offenses. Nevertheless, the state has reason to punish those crimes in order to deter future offenses. Tommie Shelby proposes a way out of this dilemma. He separates the state’s right to condemn from its right to punish. I raise doubts about (...) Shelby’s proposed resolution. So long as punishment is widely and reasonably understood to condemn crime, Shelby’s proposal does not resolve the dilemma. Moreover, there is reason to think the blaming aspect of punishment plays a role in the justification of its hard treatment. I conclude by considering some other ways out of the dilemma, focusing especially on how the United States might take responsibility for its complicity. (shrink)

Reviews the history of the death penalty, traditional arguments for and against it, the contemporary debate including debates over whether it effectively deters, its constitutionality, and international trends in its use.

In Spare the Rod, historian Campbell F. Scribner and philosopher Bryan R. Warnick think deeply about punishment and discipline practices in American schooling. To delve into this controversial subject, the authors carefully consider two major issues. The first involves questions of meaning. How have concepts of discipline and punishment in schools changed overtime? What purposes are they supposed to serve? And what can they tell us about our assumptions about education? The second issue involves the justification of (...) class='Hi'>punishment and discipline in schools. Are public school educators ever justified in punishing or disciplining students? Are these things important for moral education? Or, are they fundamentally opposed to education? If some form of punishment is justified in schools, what ethical guidelines should direct its administration? The authors argue that as schools have grown increasingly bureaucratic over the past century, formalizing disciplinary systems and shifting from physical punishments to forms of spatial or structural punishment (such as suspension), school discipline has not only come to resemble the operation of prisons or policing but has grown increasingly integrated with those institutions. These changes, they argue, disregard the unique status of schools as spaces of moral growth and community oversight, and are incompatible with the developmental ethos of education. What we need is a view of discipline and punishment that fits with the sort of moral community that schools should be. (shrink)

Michael S. Moore is a whole-hearted retributivist. The triumph of Mechanical Choices is that Moore provides a thoroughly physicalist, reductionist-friendly, compatibilist account of the features that make persons deserving of blame and punishment. Many who embrace scientific accounts of psychology worry that from this perspective the grounds for desert disappear; but Moore argues that folk psychological accounts of responsibility—such as those found in the criminal law—are either vindicated or not implicated by science. Moore claims that criminal punishment can (...) be justified by looking solely to moral desert, couched in folk terms. In this paper I argue that interpersonal blame and punishment and criminal blame and punishment hold people responsible in the same sense, and that directed moral blame in both forms aim to communicate something to the wrongdoer and generate a backward-looking or retributive good. However, contra Moore, I will argue that instrumental aims are also important to justifying methods and degree of punishment within both realms. (shrink)

Faced with the inaction of liberal democracies to effectively tackle global warming, many climate activists engage in forms of protests that involve committing minor criminal offences. They seek to shape official decisions on climate policies by resorting to civil disobedience. Some of these activists, rather than accepting punishment, have successfully claimed to be acting in a justified manner by invoking the necessity defence. The aim of this article is to show that, within the framework of representative democracies guided by (...) the rule of law, the climate necessity defence must be rejected, since such protests do not meet the ‘non-legal alternatives’ requirement. This does not mean, however, that protesters should be punished as common offenders. Their acceptance of responsibility and political motivation should be taken into account as a mitigating factor at sentencing. (shrink)

In recent years, scholars have documented the racial disparities of mass incarceration. In this paper we argue that, although retributivism and deterrence theory appear to be race-neutral, in the contemporary U.S. context these seemingly contrary theories function jointly to rationalize racial inequities in the criminal justice system. When people of color are culturally associated with criminality, they are perceived as both irresponsible and hyperresponsible, a paradox that reflects their status as what Charles Mills calls subpersons. Following from this paradox, criminality (...) is understood as an atemporal characteristic of people of color, such that they are conceived as pre-criminals, criminals, or post-criminals. In Frantz Fanon’s account, overdetermination expresses this exclusion of people of color from full agency by capturing them within a rigid, immutable essence, which then controls the social meaning of their actions. The backward-looking quality of retribution and the forward-looking quality of deterrence then treat people of color as more deserving of punishment (and more severe punishment) and as threats to the social order who have to be restrained. We should read the racialization of mass incarceration as a symptom of how precariously people of color participate in the social contract and as reflections of how theories of punishment have been racially deployed. (shrink)

The aim of this paper is to present a solution to a problem that arises from the fact that people who commit crimes under the influence of serious mental disorders may still have a capacity to refuse treatment. Several ethicists have argued that the present legislation concerning involuntary treatment of people with mental disorder is discriminatory and should change to the effect that psychiatric patients can refuse care on the same grounds as patients in somatic care. However, people with mental (...) disorders who have committed crimes and been exempted from criminal responsibility would then fall outside the scope of criminal justice as well as that of the psychiatric institutions if they were to refuse care. In this paper, I present and develop a solution to how society should deal with this group of people, called Advance criminal responsibility. The basic idea being that if a person with a potentially responsibility exempting psychiatric condition refuses care, that person is responsible for any future criminal acts which are due to the mental disorder. (shrink)

American Muslims increasingly negotiate their relation to a government that is suspicious of Islam, yet which is legally obligated to recognize them as rights-bearing citizens. To better understand how the post-9/11 state is reshaping American Islam, I examine the case of Muslim American dissident Tarek Mehanna, sentenced to seventeen years in prison for providing material support for terrorism, on the basis of his controversial words (USA v. Mehanna et al, 2012). I situate Mehanna’s writing and reflections within a long (...) class='Hi'>history of American activism, in particular the traditions represented by Henry David Thoreau and John Brown. -/- . (shrink)

Drawing upon empirical studies of racial discrimination dating back to the 1940’s, the Movement for Black Lives platform calls for the abolition of capital punishment. Our purpose here is to defend the Movement’s call for death penalty abolition in terms congruent with its claim that the death penalty in the U.S. is a “racist practice” that “devalues Black lives.” We first sketch the jurisprudential history of race and capital punishment in the U.S., wherein courts have occasionally expressed (...) worries about racial injustice but have usually taken such evidence to warrant reform but not outright abolition. We argue that the racial discrimination at issue flows in significant part from implicit biases concerning race, criminality, and violence, which do not fit comfortably within the picture of racial bias advanced by the courts. The case for abolition, we contend, rests on Black Americans as a class (not merely those who interact with the criminal justice system as capital defendants or as murder victims) being subject to such bias and thereby not being accorded equal status under the law. (shrink)

This essay considers the relationship between crime, punishment and individual liberty in three main thinkers of the Enlightenment: Montesquieu, Beccaria and Bentham. It examines the development of the idea of a proportion between crime and punishment and challenges the view that the eighteenth-century Enlightenment was engaged in the creation of a new form of oppression through a system of rational punishment which was intended to replace that of the medieval period.

Many philosophers and legal theorists worry about punishing the socially disadvantaged as severely as their advantaged counterparts. One philosophically popular explanation of this concern is couched in terms of moral standing: seriously unjust states are said to lack standing to condemn disadvantaged offenders. If this is the case, institutional condemnation of disadvantaged offenders (especially via hard treatment) will often be unjust. I describe two problems with canonical versions of this view. First, its proponents groundlessly claim that disadvantaged offenders may be (...) punished as severely as advantaged ones, even though such punishment is unjust in light of the state’s loss of standing. Second, and more importantly, moral standing arguments prohibit states from blaming advantaged as well as disadvantaged offenders. This unwelcome outcome suggests that standing approaches incorrectly analyze the source of moral misgivings about punishing the disadvantaged. I conclude that those who share such concerns should put standing accounts aside. (shrink)

This comment text brings, at the end, a part of Surveiller et Punir (Discipline and Punish), which has not been translated into Portuguese and does not appear in more than 40 editions of the Brazilian translation. It is on the back cover of the original in French, as if it were an afterword, signed by the author himself, Michel Foucault, which more than 40 years ago published by Editions Gallimard, his first copies in February 1975. Two years later, the Brazilian (...) version was published, but without this part which contains the reflection that Foucault invites us to think about at the end of his work:“Can the genealogy of modern morality be drawn from a political history of bodies?”(Foucault, 1975, p. 318, my translation). In addition to this absence, in the text in Portuguese, we have to think about why Foucault chose to put it in the final part of the book? (shrink)

It is frequently argued that wrongdoers forfeit, through their wrongdoing, their previously held claim rights against being punished. But this is a mistake. Wrongdoers do not forfeit their claim rights against being punished when they violate rights. They forfeit their _immunity_ to having their claim rights against being punished removed. The reason for this, I argue, is that when they violate rights, wrongdoers culpably disregard the authority of right-holders to negotiate the conditions under which it is permissible to interact with (...) them. The effect of this, far from undermining the authority of right-holders, is to transfer authority to right-holders to unilaterally impose the ‘conditions of interaction’ on wrongdoers _after_ the violation. The conditions can be imposed for a diverse range of reasons and can take a variety of forms, including punishment. In this essay I explain and defend this new ‘unilateral authority theory’ of punishment. (shrink)

Michel Foucault's Surveiller et punir: Naissance de la prison or Discipline and Punish was his first work since his election to the Chair in the History of Systems of Thought at the Collège de France. Soon after his inaugural address, he announced the formation of the organization Groupe d'Information sur les Prisons (GIP). Due to Foucault's visibility as a social activist for prison reform, Discipline and Punish was received not just as a socio‐historical or philosophical analysis but as a (...) work of radical social criticism. This chapter reviews (1) the context in which Foucault wrote this work; (2) its structure and central themes; (3) its initial reception; and (4) its general place in Foucault's oeuvre and its influence. The English publication of Discipline and Punish and the first History of Sexuality gave rise to an entirely new field of inquiry – queer theory. (shrink)

Drawing on Foucault’s Discipline and Punish and on his lecture on the Punitive Societies as well as on affect theories, this text tries to analyze a surprising return to shame as a paradigm for punishment. In this context, shame and guilt are both seen not so much as real emotions occurring within the soul of a subject, but as dispositives or affective arrangements that seek different ways to regulate and modulate the feelings of justice and injustice within a society. (...) Excessive shaming, which does not fit well in Foucault’s narrative of a development towards more subtle forms of punishment, will be understood as a form of resistance against the subtleties of control. The text discusses this using the example of Electronic Monitoring and its history as a form of making shame invisible, hiding it as micro-political shame in an economy of guilt. Against this economy, excessive shame as punishment forms an aneconomic force that sets out to reset the rules of community and identity. (shrink)

The aim of the paper is to investigate how retributivists should respond to the apparent tension between moral desert and proportionality in punishment. I argue that rather than attempting to show that the term ‘proportionate punishment’ refers to whatever penal treatment the offender morally deserves, retributivists should maintain two things: first, that a punishment is proportionate when it is commensurate to the seriousness of the crime; second, that offenders morally deserve proportionate punishments. This view requires adopting a (...) local theory of desert as opposed to a holistic one. In the second part of the paper, I argue that there are indeed good reasons to adopt a local theory of desert. Once retributivism is seen through the lens of local desert, there is no obvious mistake in saying that offenders morally deserve punishments that are proportionate to the seriousness of their crimes. (shrink)

The Iconoclastic controversies of the Byzantine Era have provided a rich literary tradition of miracle narrations regarding the various magical aspects of the icon. The second period of Iconoclasm however seems to have given rise to a lesser prominent motif of the earlier traditions, namely that of the icon-agent acting as active punisher against its transgressor. The current article explores the development of this motif after a concise survey of the history of icon-miracle narrations, their representative texts and their (...) role in liturgical practice. The starting point of the study were two previously unedited byzantine texts from the manuscript Vaticanus gr. 1587, testifying unique stories of icons as punishers. Finally, these stories are also perfect examples of the rich historical information popular narrations can provide on a topographical and prosopographical level regarding the era within which they were produced. (shrink)

Spinoza shares with almost all apologists for forgiveness the idea that laying down one’s resentment of a wrong, contempt for a wrongdoer, and overcoming “bondage” to hatred, must be a primary ethical aim. Yet he denies that doing so authorizes pardoning a penitent wrongdoer. He argues that in civil society, it is actually a matter of charity and piety to collude in punishing a wrongdoer—dragging the wrongdoer before a judge, but not “judging” him oneself. I argue that Spinoza offers no (...) warrant to pardon whatever for those not authorized under civil law to punish. But I argue that the response to others’ hatred and deceit that Spinoza urges his reader to cultivate in Ethics 5p10, along with his argument that one may ‘turn the other cheek’ under conditions of oppression, where no sovereign power prosecutes claims of justice, mandates a broader emergent and reparative view of forgiveness. (shrink)

This book is the joint work of a moralist, a sociologist and a psychologist arguing, as the sub-title indicates, for the abolition of capital punishment. Fr Tidmarsh’s essay provides the ‘Theoretical Framework’ of the discussion. He examines the notion of punishment as retributive, reformative and deterrent. He refuses to be drawn into the kind of detailed discussion that finds its place in the two essays that follow; but what he says is clarifying and indispensable. He points the difficulty (...) of formulating a ‘pure’ retributive theory of punishment; and the fact that ‘considerations of retribution may yield negative criteria—they may prevent our punishing the innocent and they may prevent our allowing considerations of expediency from too easily outweighing the general rule that the guilty are to be punished—but they have little, if any, positive contribution to make to the assessment of just punishments’. He remarks the different meanings given to reformation; does it mean the actual betterment of the offender’s frame of mind, or merely the fact that he refrains from crime in the future? And how, in fact, does punishment operate reform? And there is the paradox of the deterrent view of punishment—‘those crimes ought to be the more heavily punished that are the more difficult to refrain from committing, since it needs a greater motive for fear to restrain those tempted to them than is needed from those temptations more easily resisted. Passion, provocation, inadvertence, become not extenuating but exacerbating circumstances... ‘. (shrink)

This book is the joint work of a moralist, a sociologist and a psychologist arguing, as the sub-title indicates, for the abolition of capital punishment. Fr Tidmarsh’s essay provides the ‘Theoretical Framework’ of the discussion. He examines the notion of punishment as retributive, reformative and deterrent. He refuses to be drawn into the kind of detailed discussion that finds its place in the two essays that follow; but what he says is clarifying and indispensable. He points the difficulty (...) of formulating a ‘pure’ retributive theory of punishment; and the fact that ‘considerations of retribution may yield negative criteria—they may prevent our punishing the innocent and they may prevent our allowing considerations of expediency from too easily outweighing the general rule that the guilty are to be punished—but they have little, if any, positive contribution to make to the assessment of just punishments’. He remarks the different meanings given to reformation; does it mean the actual betterment of the offender’s frame of mind, or merely the fact that he refrains from crime in the future? And how, in fact, does punishment operate reform? And there is the paradox of the deterrent view of punishment—‘those crimes ought to be the more heavily punished that are the more difficult to refrain from committing, since it needs a greater motive for fear to restrain those tempted to them than is needed from those temptations more easily resisted. Passion, provocation, inadvertence, become not extenuating but exacerbating circumstances... ‘. (shrink)

In spite of his stature as a major figure in the history of political philosophy and his strong interest in the correlation between liberty and the content of criminal law, surprisingly little has been written concerning Montesquieu's views on crime and punishment. Even less has been written about his views on the philosophical justification of punishment. Unlike Locke, Rousseau and Beccaria, he did not use social contract theory to justify punishment. Close analysis of Books VI and (...) XII of The Spirit of Laws (1748) reveals that he combined utilitarian, retributivist and liberal themes in his approach to punishment, while locating the fundamental justification for the right to punish capital crimes in the retributivist rationale of doing justice. As noted by Beccaria and numerous others whom he influenced, moderation in punishments and decriminalization of religious offences were key themes in his discussions. (shrink)

This paper argues that the general practice of punishment cannot be successfully defended by appeals to social contract arguments based upon the work of John Rawls. Several attempts to present such justifications are discussed, including those by Murphy, Morris, Sterba, and Hoekema. It is argued that social contractors would not choose a practice of punishment because such a practice is a symbolic expression of society’s disapproval of offenses against the law. Social contractors would instead choose a practice which (...) might have some deterrent effect upon crime but would lack the feature of social contract theory. (shrink)

This paper argues that the general practice of punishment cannot be successfully defended by appeals to social contract arguments based upon the work of John Rawls. Several attempts to present such justifications are discussed, including those by Murphy, Morris, Sterba, and Hoekema. It is argued that social contractors would not choose a practice of punishment because such a practice is a symbolic expression of society’s disapproval of offenses against the law. Social contractors would instead choose a practice which (...) might have some deterrent effect upon crime but would lack the feature of social contract theory. (shrink)

There is an apparent ambiguity in Thomas Hobbes’s account in Leviathan1 of the source of the sovereign’s right to punish. Hobbes appears to both claim and deny that the prospective sovereign is granted the right to punish by prospective subjects. In claiming that the sovereign is granted the right to punish, we understand Hobbes to hold that the acquisition of the right follows from authorization—a process by which a representative is commissioned to act on the behalf of another person. In (...) denying that the sovereign is granted the right to punish, we understand Hobbes to hold that the possession of the right is merely the product of the mass relinquishment of natural rights; the prospective sovereign alone does .. (shrink)

Is there a punishment for violating the natural law? This important question has been neglected in the scholarship on Thomistic natural law theory. I show that there is a three-fold punishment proper to the natural law; the remorse of conscience, the inability to be a friend to oneself, and the inability to be a friend to another work in concert to provide a natural penalty for moral wrongdoing. In order to establish these points, I first analyze sources of (...) St. Thomas Aquinas’s natural law theory by discussing St. Augustine’s notion of law and fundamental ideas in Aristotle’s political philosophy. Next, I show how Aquinas unites aspects of Augustinian and Aristotelian thought in his treatment of natural law and thereby provides a framework for answering our question. Finally, I turn to Plato’s Gorgias and to Aristotle’s discussion of self-love in order to integrate these ideas with Aquinas’s natural law theory. (shrink)

This essay enquires into the implications for criminal law of Derrida’s analysis in the Death Penalty seminars. The seminars include a reading of Kant’s Metaphysics of Morals, specifically Kant’s reflections on the sovereign right to punish, which is read in conjunction with the reflections of Freud and Reik on the relation between the unconscious and crime, as well as Nietzsche’s reflections on morality, punishment and cruelty. What comes to the fore in Derrida’s analysis is a system of economic exchange (...) operating on an unconscious level, of which criminal law forms an intrinsic part. Derrida’s analysis of the ‘origin’ of crime in the seminars poses serious questions to the assumption of freedom underlying modern criminal law. The link, which he posits between punishment and political theology, likewise challenges the existing theories and forms of punishment. What the seminars call for, in the name of the Kantian Enlightenment, is a radical break with economic circularity as it operates in respect of crime and punishment. (shrink)

This writer who has warned us of the “ideological” function of both the oeuvre and the author as unquestioned forms of discursive organization has gone quite far in constituting for both these “fictitious unities” the name (with all the problems of such a designation) Michel Foucault. One text under review, La Volonté de Savoir, is the methodological introduction of a projected five-volume history of sexuality. It will apparently circle back over that material which seems to have a special fascination (...) for Foucault: the gradual emergence of medicine as an institution, the birth of political economy, demography and linguistics as “human sciences,” the invention of incarceration and confinement for the control of the “other” in society (the mad, the libertine, the criminal) and that special violence that lurks beneath the power to control discourse. (shrink)

The presumption of innocence undergirds the American criminal justice system. It is so fundamental that it is derived from the concepts of due process and the importance of a fair trial. An informed, historical understanding of the interaction between the presumption of innocence and key tenets of due process can help clarify the meaning and application of the presumption of innocence in the modern day. Due process, as developed throughout English and US. Colonial history leading up to the formation (...) of the US. Constitution, has two important implications. First, due process provides a general guarantee of liberty against punishment or imprisonment without a fair trial. Second, due process requires that a jury, as opposed to a judge, determine the factual guilt of a defendant at trial. These two key tenets were historically fundamental to due process and should guide how the presumption of innocence impacts various stages of trial, including pretrial detention decisions and sentencing. Returning to a historical understanding of due process requires that judges not determine facts or punish individuals before a trial has occurred. (shrink)

To scholars of Western intellectual history Hegel is one of the most important of all political thinkers, but politicians and other "down-to-earth" persons see his speculative philosophy as far removed from their immediate concerns. Put off by his difficult terminology, many participants in practical politics may also believe that Hegel's idealism unduly legitimates the status quo. By examining his justification of legal punishment, this book introduces a Hegel quite different from these preconceptions: an acute critic of social practices. (...) Mark Tunick draws on recently published but still untranslated lectures of Hegel's philosophy of right to take us to the core of Hegel's political thought. Hegel opposes radical criticism like that later offered by Marx, but, argues Tunick, he employs "immanent" criticism instead. For instance, Hegel claims that punishment is the criminal's right and makes the criminal free. From this standpoint, he defends specific features of the practice of punishment that accord with this retributive ideal and criticizes other features that contradict it. In a lucid account of what Hegel means by right and freedom, Tunick addresses Hegel specialists and those interested in criminal law, the interpretation of legal institutions and social practices, and justification from an immanent standpoint. Originally published in 1992. The Princeton Legacy Library uses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These paperback editions preserve the original texts of these important books while presenting them in durable paperback editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905. (shrink)

This Article presents a theory whereby criminal punishments are routinely distributed in proportion to the weight of the evidence mounted against the defendant. According to this theory, the law relaxes the stringent decision threshold in criminal trials—beyond a reasonable doubt—by creating easy-to-prove evidentiary offenses. These offenses, in turn, are associated with less severe sanctions, thus creating a de-facto proportional liability regime. Against that backdrop, the Article examines the legal duty to report criminal activity to the authorities. As the analysis shows, (...) while legal scholars analyzing such duties have focused on the paradigmatic case in which an innocent bystander, friend or family member is unwittingly exposed to information about a crime, in practice these duties are rarely used in such cases. Rather, reporting duties are used to prosecute suspected accomplices whose involvement in the commission of the actual crime is difficult to prove beyond a reasonable doubt. Thus, offenses imposing a reporting duty on criminal activity turn out to be part of the general framework of accomplice liability, and are used to apply less severe sanctions in cases of evidentiary uncertainty. (shrink)

I offer a major reassessment of Foucault’s philosophico-historical account of the basic problems of modernity. I revise our understanding of Foucault by countering the influential misinterpretations proffered by his European interlocutors such as Habermas and Derrida. Central to Foucault’s account of modernity was his work on two crucial concept pairs: freedom/power and reason/madness. I argue against the view of Habermas and Derrida that Foucault understood modern power and reason as straightforwardly opposed to modern freedom and madness. I show that Foucault (...) held a much more complex view of these pairs, a view encapsulated in his term ‘reciprocal incompatibility’. By revising our interpretation of Foucault’s work on modernity in this way, we open the way to much more effective deployments of his critical apparatus. (shrink)