Matt Matravers
- Published in print:
- 2000
- Published Online:
- November 2003
- ISBN:
- 9780198295730
- eISBN:
- 9780191599828
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198295731.003.0003
- Subject:
- Political Science, Political Theory
A recent attempt to revive retributive theories of punishment, pioneered by Herbert Morris and Jeffrie Murphy, argues that punishment restores the balance of benefits and burdens in a society; a ...
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A recent attempt to revive retributive theories of punishment, pioneered by Herbert Morris and Jeffrie Murphy, argues that punishment restores the balance of benefits and burdens in a society; a balance that is disturbed by crime. Classic and contemporary statements of this position are examined and rejected. The conclusion is that fair‐play theory, with its emphasis on free riding, does not have an adequate account of ‘wrong’.Less
A recent attempt to revive retributive theories of punishment, pioneered by Herbert Morris and Jeffrie Murphy, argues that punishment restores the balance of benefits and burdens in a society; a balance that is disturbed by crime. Classic and contemporary statements of this position are examined and rejected. The conclusion is that fair‐play theory, with its emphasis on free riding, does not have an adequate account of ‘wrong’.
Matt Matravers
- Published in print:
- 2000
- Published Online:
- November 2003
- ISBN:
- 9780198295730
- eISBN:
- 9780191599828
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198295731.003.0004
- Subject:
- Political Science, Political Theory
The recent revival of retributive theory has been led by Michael Moore's claim that retributivism has moral worth, and by communicative and expressive theories of punishment that emphasize guilt and ...
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The recent revival of retributive theory has been led by Michael Moore's claim that retributivism has moral worth, and by communicative and expressive theories of punishment that emphasize guilt and censure. It is argued that retributivism captures an important truth about punishment's backward‐looking nature, but that no retributive theory can adequately answer the question of by what right some people punish others.Less
The recent revival of retributive theory has been led by Michael Moore's claim that retributivism has moral worth, and by communicative and expressive theories of punishment that emphasize guilt and censure. It is argued that retributivism captures an important truth about punishment's backward‐looking nature, but that no retributive theory can adequately answer the question of by what right some people punish others.
Victor Tadros
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199554423
- eISBN:
- 9780191731341
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199554423.001.0001
- Subject:
- Law, Criminal Law and Criminology, Philosophy of Law
Victor Tadros sets out to defend the ‘duty view’ of punishment. On this view, the permission to punish offenders is grounded in the duties that they incur in virtue of their wrongdoing. The most ...
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Victor Tadros sets out to defend the ‘duty view’ of punishment. On this view, the permission to punish offenders is grounded in the duties that they incur in virtue of their wrongdoing. The most important duties that ground the justification of punishment are the duty to recognise that the offender has done wrong and the duty to protect others against wrongdoing. In the light of these duties the state has a permission to punish offenders to ensure that they recognise that what they have done is wrong, but also to protect others from crime. Hence, the book offers a defence not only of a communicative view of punishment but also of general deterrence as central to the justification of punishment. This view is developed in the light of a non-consequentialist moral theory: a theory which endorses constraints on the pursuit of the good. It is shown that it is normally wrong to harm a person as a means to pursue a greater good. However, there are exceptions to this principle in cases where the person harmed has an enforceable duty to pursue the good. The implications of this idea are explored both in the context of self-defence, and then in the context of punishment. The book offers the most systematic exploration of the relationship between self-defence and punishment to date and makes significant progress in defending a plausible set of non-consequentialist moral principles. It also critically explores other theories of punishment, including retributivism and purely communicative theories, identifying unexamined deficiencies in these theories.Less
Victor Tadros sets out to defend the ‘duty view’ of punishment. On this view, the permission to punish offenders is grounded in the duties that they incur in virtue of their wrongdoing. The most important duties that ground the justification of punishment are the duty to recognise that the offender has done wrong and the duty to protect others against wrongdoing. In the light of these duties the state has a permission to punish offenders to ensure that they recognise that what they have done is wrong, but also to protect others from crime. Hence, the book offers a defence not only of a communicative view of punishment but also of general deterrence as central to the justification of punishment. This view is developed in the light of a non-consequentialist moral theory: a theory which endorses constraints on the pursuit of the good. It is shown that it is normally wrong to harm a person as a means to pursue a greater good. However, there are exceptions to this principle in cases where the person harmed has an enforceable duty to pursue the good. The implications of this idea are explored both in the context of self-defence, and then in the context of punishment. The book offers the most systematic exploration of the relationship between self-defence and punishment to date and makes significant progress in defending a plausible set of non-consequentialist moral principles. It also critically explores other theories of punishment, including retributivism and purely communicative theories, identifying unexamined deficiencies in these theories.
Mark D. White (ed.)
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780199752232
- eISBN:
- 9780199895342
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199752232.001.0001
- Subject:
- Law, Criminal Law and Criminology
This book offers analysis and explanations of new developments in retributivism, the philosophical account of punishment that holds that wrongdoers must be punished as a matter of right, duty, or ...
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This book offers analysis and explanations of new developments in retributivism, the philosophical account of punishment that holds that wrongdoers must be punished as a matter of right, duty, or justice, rather than to serve some general social purpose such as deterrence or individual purpose such as rehabilitation of the criminal or the vengeance of the victim. The contemporary debate over retributivist punishment has become particularly vibrant in recent years, focusing increasingly on its political and economic as well as its philosophical aspects, and also on its practical ramifications in addition to theoretical implications. The twelve chapters in this book, written by leading legal scholars and philosophers, cover a wide range of approaches, understandings, and applications of retributivism. The first part of the book deals with the basic concept of retributivism, such as how it should be understood, interpreted, and justified. The second part of the book delves more into the philosophical foundations of retributivism, focusing chiefly on Kant and Hegel as well as modern legal philosophers. The third and final part of the book discusses the practical implications of retributivism for policy and practices in criminal justice, including capital punishment, entrapment, the necessity defense, and sentencing of multiple offenders.Less
This book offers analysis and explanations of new developments in retributivism, the philosophical account of punishment that holds that wrongdoers must be punished as a matter of right, duty, or justice, rather than to serve some general social purpose such as deterrence or individual purpose such as rehabilitation of the criminal or the vengeance of the victim. The contemporary debate over retributivist punishment has become particularly vibrant in recent years, focusing increasingly on its political and economic as well as its philosophical aspects, and also on its practical ramifications in addition to theoretical implications. The twelve chapters in this book, written by leading legal scholars and philosophers, cover a wide range of approaches, understandings, and applications of retributivism. The first part of the book deals with the basic concept of retributivism, such as how it should be understood, interpreted, and justified. The second part of the book delves more into the philosophical foundations of retributivism, focusing chiefly on Kant and Hegel as well as modern legal philosophers. The third and final part of the book discusses the practical implications of retributivism for policy and practices in criminal justice, including capital punishment, entrapment, the necessity defense, and sentencing of multiple offenders.
Alan Brudner
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199207251
- eISBN:
- 9780191705502
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199207251.003.0001
- Subject:
- Law, Philosophy of Law, Criminal Law and Criminology
This introductory chapter states the book's thesis — that penal action by public officials is permissible force rather than wrongful violence only if it could be accepted by the agent as being ...
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This introductory chapter states the book's thesis — that penal action by public officials is permissible force rather than wrongful violence only if it could be accepted by the agent as being consistent with its freedom. It outlines the various conceptions of freedom that compete for control of the penal law and announces his intention to reconcile them within an inclusive idea of freedom. It describes the apparent paradoxes in the penal law's basic structure and argues that only a theory based on an inclusive idea of freedom can unify the law while remaining faithful to its complexity. The chapter contrasts the political theory of the penal law the book will be offering to the dominant moral theory, legal retributivism with moral retributivism, and argues that a moral theory of the penal law based on blame and censure produces a penal law incompatible with the agent's inviolability.Less
This introductory chapter states the book's thesis — that penal action by public officials is permissible force rather than wrongful violence only if it could be accepted by the agent as being consistent with its freedom. It outlines the various conceptions of freedom that compete for control of the penal law and announces his intention to reconcile them within an inclusive idea of freedom. It describes the apparent paradoxes in the penal law's basic structure and argues that only a theory based on an inclusive idea of freedom can unify the law while remaining faithful to its complexity. The chapter contrasts the political theory of the penal law the book will be offering to the dominant moral theory, legal retributivism with moral retributivism, and argues that a moral theory of the penal law based on blame and censure produces a penal law incompatible with the agent's inviolability.
Douglas Husak
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199585038
- eISBN:
- 9780191723476
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199585038.003.0004
- Subject:
- Law, Philosophy of Law
This chapter describes the costs that criminal theory would be forced to pay by adopting the view (currently fashionable among many moral philosophers) that the intentions of the agent are irrelevant ...
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This chapter describes the costs that criminal theory would be forced to pay by adopting the view (currently fashionable among many moral philosophers) that the intentions of the agent are irrelevant to determinations of whether his actions are permissible (or criminal). Among other difficulties, the view that is challenged encounters enormous problems accounting for penal liability for attempted crimes.Less
This chapter describes the costs that criminal theory would be forced to pay by adopting the view (currently fashionable among many moral philosophers) that the intentions of the agent are irrelevant to determinations of whether his actions are permissible (or criminal). Among other difficulties, the view that is challenged encounters enormous problems accounting for penal liability for attempted crimes.
Douglas Husak
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199585038
- eISBN:
- 9780191723476
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199585038.003.0011
- Subject:
- Law, Philosophy of Law
This chapter examines how retributivists should decide whether and to what extent a person should be punished for committing a criminal offense when he is ignorant of the law he violates. It contends ...
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This chapter examines how retributivists should decide whether and to what extent a person should be punished for committing a criminal offense when he is ignorant of the law he violates. It contends that no solution is possible without a fundamental rethinking of the content of substantive offenses. Progress might be made on this issue if we model a theory of culpability and mistake of law after the familiar theory of culpability and mistake of fact. This model helps us to appreciate that different mistakes may involve various levels of culpability about different material elements of offenses and thus need not all be treated in the same way.Less
This chapter examines how retributivists should decide whether and to what extent a person should be punished for committing a criminal offense when he is ignorant of the law he violates. It contends that no solution is possible without a fundamental rethinking of the content of substantive offenses. Progress might be made on this issue if we model a theory of culpability and mistake of law after the familiar theory of culpability and mistake of fact. This model helps us to appreciate that different mistakes may involve various levels of culpability about different material elements of offenses and thus need not all be treated in the same way.
Douglas Husak
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199585038
- eISBN:
- 9780191723476
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199585038.003.0016
- Subject:
- Law, Philosophy of Law
This chapter argues that a comprehensive justification for punishing criminals must address why those persons who deserve to be punished should actually be punished by the state, all things ...
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This chapter argues that a comprehensive justification for punishing criminals must address why those persons who deserve to be punished should actually be punished by the state, all things considered. Plausible answers to this question reveal deficiencies in pure retributive theories: those that deem consequences to be wholly irrelevant to the justification of punishment. Consequences are material when we explain why the state should punish those who are deserving of punishment.Less
This chapter argues that a comprehensive justification for punishing criminals must address why those persons who deserve to be punished should actually be punished by the state, all things considered. Plausible answers to this question reveal deficiencies in pure retributive theories: those that deem consequences to be wholly irrelevant to the justification of punishment. Consequences are material when we explain why the state should punish those who are deserving of punishment.
Charles Goodman
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780195375190
- eISBN:
- 9780199871377
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195375190.003.0010
- Subject:
- Religion, Buddhism
If Buddhists really hold consequentialism and hard determinism, we would expect them to endorse utilitarian views of punishment and reject retributivism. We find this kind of view on the ...
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If Buddhists really hold consequentialism and hard determinism, we would expect them to endorse utilitarian views of punishment and reject retributivism. We find this kind of view on the justification of punishment in Nagarjuna’s Precious Garland. Nagarjuna sees punishment as sometimes necessary, thereby rejecting a pacifist form of unqualified nonviolence. But he advocates compassionate and merciful punishment in terms incompatible with any form of retributivism. From a Buddhist perspective, the American criminal justice system creates needless suffering on a massive scale. Punishment is necessary to protect society, but should be practiced only to the extent required by deterrence and rehabilitation; our present system can be justified only by appeal to irrational and vindictive retributivist views. Buddhists should advocate the abolition of the death penalty and the elimination of mandatory minimum sentences, especially for nonviolent offenders.Less
If Buddhists really hold consequentialism and hard determinism, we would expect them to endorse utilitarian views of punishment and reject retributivism. We find this kind of view on the justification of punishment in Nagarjuna’s Precious Garland. Nagarjuna sees punishment as sometimes necessary, thereby rejecting a pacifist form of unqualified nonviolence. But he advocates compassionate and merciful punishment in terms incompatible with any form of retributivism. From a Buddhist perspective, the American criminal justice system creates needless suffering on a massive scale. Punishment is necessary to protect society, but should be practiced only to the extent required by deterrence and rehabilitation; our present system can be justified only by appeal to irrational and vindictive retributivist views. Buddhists should advocate the abolition of the death penalty and the elimination of mandatory minimum sentences, especially for nonviolent offenders.
Linda Radzik
- Published in print:
- 2009
- Published Online:
- January 2009
- ISBN:
- 9780195373660
- eISBN:
- 9780199871971
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195373660.003.0002
- Subject:
- Philosophy, Moral Philosophy
The chapter focuses on the conception of atonement as repayment of a moral debt. The metaphor of moral debt and repayment is traditionally developed in two ways. First, retributivism and satisfaction ...
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The chapter focuses on the conception of atonement as repayment of a moral debt. The metaphor of moral debt and repayment is traditionally developed in two ways. First, retributivism and satisfaction theory suggest that wrongdoing can be repaid only through suffering, whether in the form of guilt, punishment, or penance (self-punishment). The second way focuses not on a loss or harm for the wrongdoer but on compensation for the victim. Although retributive and restitution theories of atonement share a conception of wrongdoing, they make opposing mistakes. Retributive theories elide the moral significance of victims. Restitution theories, on the other hand, fail to recognize the significance of the wrongdoers in that they are unable to justify the intuition that it is the wrongdoers themselves who must make the reparative response.Less
The chapter focuses on the conception of atonement as repayment of a moral debt. The metaphor of moral debt and repayment is traditionally developed in two ways. First, retributivism and satisfaction theory suggest that wrongdoing can be repaid only through suffering, whether in the form of guilt, punishment, or penance (self-punishment). The second way focuses not on a loss or harm for the wrongdoer but on compensation for the victim. Although retributive and restitution theories of atonement share a conception of wrongdoing, they make opposing mistakes. Retributive theories elide the moral significance of victims. Restitution theories, on the other hand, fail to recognize the significance of the wrongdoers in that they are unable to justify the intuition that it is the wrongdoers themselves who must make the reparative response.
Michael S. Moore
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199599493
- eISBN:
- 9780191594649
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199599493.001.0001
- Subject:
- Law, Philosophy of Law, Criminal Law and Criminology
The book aims to give a comprehensive theory of the substantive criminal law. It first develops a theory of what a comprehensive theory of any area of law, such as criminal law, should look like. ...
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The book aims to give a comprehensive theory of the substantive criminal law. It first develops a theory of what a comprehensive theory of any area of law, such as criminal law, should look like. Explanatory, evaluative and descriptive theories are distinguished, and the partly normative nature of ‘descriptive’ theories is defended. Boundary conditions for what counts as an area of law are also developed and applied to criminal law. The book then proceeds in three parts. Part I defines and defends a retributive theory of punishment, a theory according to which the sole function of the criminal law is to punish those who deserve to suffer for their culpable wrongdoing. The other two parts of the book detail the implications of this view of the end of punishment, for the kinds of doctrines and institutions the criminal law both does and should have. Part II develops these implications for what is called the ‘general part’ of the criminal law. This part contains the doctrines, principles, and policies that apply to all crimes and that give each of them a common basic structure. The retributive point of punishment requires that there be a theory of when persons are morally responsible and thus deserving of punishment. The theory of responsibility that constitutes the general part of the criminal law, abstractly stated, is developed, first, by answering general questions about the role of various desert determiners, particularly emphasizing the role of causation and intention in the ascription of fault. The theory of responsibility is further developed by attention to the nature of the various desert-determiners: voluntary action, causation, intention, belief, absence of excuse, and basic moral agency and personhood. These are seen as the major determiners of moral desert. Part III develops the implications of retributive punishment for what is called the ‘special part’ of the criminal law. This is the part dealing with what a criminal code both does and should prohibit. The theory here developed is what often called a non-perfectionist, legal moralist theory of criminal legislation. The basic idea is that the criminal law has no business attempting to punish or coerce moral virtue but that, prima facie, it has every business in enforcing moral obligation. This theory of the proper reach of criminal legislation is, it is argued, an implication of the retributive point of punishment. Breach of moral obligation constitutes moral wrongdoing while lapses of virtue do not, which is why retributive punishment is fit for the one but not for the other. Depending on one’s moral views about the extent of our moral obligations, this alone can lead to a quite restricted view of the proper subjects of criminal prohibition. If we have no obligations about how we practice sexual intimacy, for example, then the legal moralist theory rejects these as proper subjects of criminal prohibitions. The book argues that the legal moralist theory should recommend even more restrictions on the proper subjects of criminal legislation in light of other considerations, such as epistemic doubt, the intrinsic goodness of liberty, the hidden costs of criminalization for certain behaviours that are unwitnessed, private, and victimless. The result is a theory of criminal legislation that is quite liberal in the restraints it urges on the content of the criminal law, even if quite illiberal in the form of the argument for those restraints.Less
The book aims to give a comprehensive theory of the substantive criminal law. It first develops a theory of what a comprehensive theory of any area of law, such as criminal law, should look like. Explanatory, evaluative and descriptive theories are distinguished, and the partly normative nature of ‘descriptive’ theories is defended. Boundary conditions for what counts as an area of law are also developed and applied to criminal law. The book then proceeds in three parts. Part I defines and defends a retributive theory of punishment, a theory according to which the sole function of the criminal law is to punish those who deserve to suffer for their culpable wrongdoing. The other two parts of the book detail the implications of this view of the end of punishment, for the kinds of doctrines and institutions the criminal law both does and should have. Part II develops these implications for what is called the ‘general part’ of the criminal law. This part contains the doctrines, principles, and policies that apply to all crimes and that give each of them a common basic structure. The retributive point of punishment requires that there be a theory of when persons are morally responsible and thus deserving of punishment. The theory of responsibility that constitutes the general part of the criminal law, abstractly stated, is developed, first, by answering general questions about the role of various desert determiners, particularly emphasizing the role of causation and intention in the ascription of fault. The theory of responsibility is further developed by attention to the nature of the various desert-determiners: voluntary action, causation, intention, belief, absence of excuse, and basic moral agency and personhood. These are seen as the major determiners of moral desert. Part III develops the implications of retributive punishment for what is called the ‘special part’ of the criminal law. This is the part dealing with what a criminal code both does and should prohibit. The theory here developed is what often called a non-perfectionist, legal moralist theory of criminal legislation. The basic idea is that the criminal law has no business attempting to punish or coerce moral virtue but that, prima facie, it has every business in enforcing moral obligation. This theory of the proper reach of criminal legislation is, it is argued, an implication of the retributive point of punishment. Breach of moral obligation constitutes moral wrongdoing while lapses of virtue do not, which is why retributive punishment is fit for the one but not for the other. Depending on one’s moral views about the extent of our moral obligations, this alone can lead to a quite restricted view of the proper subjects of criminal prohibition. If we have no obligations about how we practice sexual intimacy, for example, then the legal moralist theory rejects these as proper subjects of criminal prohibitions. The book argues that the legal moralist theory should recommend even more restrictions on the proper subjects of criminal legislation in light of other considerations, such as epistemic doubt, the intrinsic goodness of liberty, the hidden costs of criminalization for certain behaviours that are unwitnessed, private, and victimless. The result is a theory of criminal legislation that is quite liberal in the restraints it urges on the content of the criminal law, even if quite illiberal in the form of the argument for those restraints.
Michael Moore
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199599493
- eISBN:
- 9780191594649
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199599493.003.0002
- Subject:
- Law, Philosophy of Law, Criminal Law and Criminology
This chapter has two aims. First, it seeks to develop an adequate taxonomy of possible (and historically advocated) theories of punishment. Utilitarian, retributive, rehabilitative, and mixed ...
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This chapter has two aims. First, it seeks to develop an adequate taxonomy of possible (and historically advocated) theories of punishment. Utilitarian, retributive, rehabilitative, and mixed theories are distinguished, with subspecies of each.. Second, the chapter presents a set of thought experiments making it difficult to hold the utilitarian, rehabilitative, or mixed theories of punishment. That leaves retributivist theories as the preferred basis for punishment, assuming we are to punish at all. The aim of the chapter is not so much to justify retributivism as to show that each of us is, intuitively at least, a retributivist – a ‘closet retributivist’, perhaps, but a retributivist nonetheless.Less
This chapter has two aims. First, it seeks to develop an adequate taxonomy of possible (and historically advocated) theories of punishment. Utilitarian, retributive, rehabilitative, and mixed theories are distinguished, with subspecies of each.. Second, the chapter presents a set of thought experiments making it difficult to hold the utilitarian, rehabilitative, or mixed theories of punishment. That leaves retributivist theories as the preferred basis for punishment, assuming we are to punish at all. The aim of the chapter is not so much to justify retributivism as to show that each of us is, intuitively at least, a retributivist – a ‘closet retributivist’, perhaps, but a retributivist nonetheless.
Michael Moore
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199599493
- eISBN:
- 9780191594649
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199599493.003.0004
- Subject:
- Law, Philosophy of Law, Criminal Law and Criminology
This chapter mulls over the justificatory apparatus of the preceding chapter. A secondary literature critical of that apparatus has developed, and the main arguments of that literature are ...
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This chapter mulls over the justificatory apparatus of the preceding chapter. A secondary literature critical of that apparatus has developed, and the main arguments of that literature are considered. These include charges of circularity, lack of deductive strength, failures of explanatory superiority, over- emotionality, and under- and over-breadth directed against my mode of justifying retributivism. None of these are found to be convincing.Less
This chapter mulls over the justificatory apparatus of the preceding chapter. A secondary literature critical of that apparatus has developed, and the main arguments of that literature are considered. These include charges of circularity, lack of deductive strength, failures of explanatory superiority, over- emotionality, and under- and over-breadth directed against my mode of justifying retributivism. None of these are found to be convincing.
Mark D. White
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780199752232
- eISBN:
- 9780199895342
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199752232.003.0008
- Subject:
- Law, Criminal Law and Criminology
This chapter suggests a way that deontological retributivists can accommodate the compromises to just punishment made necessary in the real world by scarce resources and competing societal needs and ...
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This chapter suggests a way that deontological retributivists can accommodate the compromises to just punishment made necessary in the real world by scarce resources and competing societal needs and goals. The chapter considers consequentialist retributivism, in which trade-offs are allowed in order to maximize some measure of punishment or justice, but finds the quantification of just punishment problematic due to the ideal or principled nature of justice. Instead, it proposes a practical, deontological retributivism in which the principle of just punishment is balanced with other principles and goals according to a concept of judgment drawn from the moral philosophy of Immanuel Kant and the jurisprudence of Ronald Dworkin. After outlining the resulting “pro tanto retributivism,” the chapter compares it to other suggestions regarding how to balance competing interests within punishment, including Michael S. Moore’s “threshold retributivism,” and argues that his conception is more flexible while adhering to a deontological understanding of retributivism.Less
This chapter suggests a way that deontological retributivists can accommodate the compromises to just punishment made necessary in the real world by scarce resources and competing societal needs and goals. The chapter considers consequentialist retributivism, in which trade-offs are allowed in order to maximize some measure of punishment or justice, but finds the quantification of just punishment problematic due to the ideal or principled nature of justice. Instead, it proposes a practical, deontological retributivism in which the principle of just punishment is balanced with other principles and goals according to a concept of judgment drawn from the moral philosophy of Immanuel Kant and the jurisprudence of Ronald Dworkin. After outlining the resulting “pro tanto retributivism,” the chapter compares it to other suggestions regarding how to balance competing interests within punishment, including Michael S. Moore’s “threshold retributivism,” and argues that his conception is more flexible while adhering to a deontological understanding of retributivism.
Alan Brudner
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199207251
- eISBN:
- 9780191705502
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199207251.003.0002
- Subject:
- Law, Philosophy of Law, Criminal Law and Criminology
This chapter sets out and defends a version of retributivism that the book calls legal retributivism, and shows how it is untouched by the criticisms directed by consequentialists against moral ...
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This chapter sets out and defends a version of retributivism that the book calls legal retributivism, and shows how it is untouched by the criticisms directed by consequentialists against moral retributivism — the view that punishment is justified as giving the wicked their just deserts. The chapter begins by setting out the basic features of the penal justice paradigm ordered to the protection of the agent's formal liberty to act on ends it chooses: the equal dignity of agents, the independence of wronging from harming, the absence of liability for failing to benefit, and the independence of culpability from evil. It then describes the conceptions of wrongdoing and of criminal wrongdoing belonging to this paradigm. It explicates the nonconsequentialist and nonmoral justification of punishment uniquely connected to this framework and defends this way of justifying punishment as the only one consistent with the inviolability of the person. Finally, it describes the limitations of the formalist paradigm to which legal retributivism belongs.Less
This chapter sets out and defends a version of retributivism that the book calls legal retributivism, and shows how it is untouched by the criticisms directed by consequentialists against moral retributivism — the view that punishment is justified as giving the wicked their just deserts. The chapter begins by setting out the basic features of the penal justice paradigm ordered to the protection of the agent's formal liberty to act on ends it chooses: the equal dignity of agents, the independence of wronging from harming, the absence of liability for failing to benefit, and the independence of culpability from evil. It then describes the conceptions of wrongdoing and of criminal wrongdoing belonging to this paradigm. It explicates the nonconsequentialist and nonmoral justification of punishment uniquely connected to this framework and defends this way of justifying punishment as the only one consistent with the inviolability of the person. Finally, it describes the limitations of the formalist paradigm to which legal retributivism belongs.
Richard S. Frase
- Published in print:
- 2012
- Published Online:
- January 2013
- ISBN:
- 9780199757862
- eISBN:
- 9780199979547
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199757862.003.0002
- Subject:
- Law, Criminal Law and Criminology
Punishments require clear and convincing justification—by definition, they impose unpleasant and usually harmful consequences on offenders, and they also consume scarce public resources. Moreover, ...
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Punishments require clear and convincing justification—by definition, they impose unpleasant and usually harmful consequences on offenders, and they also consume scarce public resources. Moreover, purposes of punishment often conflict in particular cases. Hybrid (or “mixed”) punishment theories seek to reconcile these conflicts while recognizing multiple punishment justifications. This chapter summarizes and critiques hybrid theories proposed by other writers, as well as nonhybrid theories (pure retributivism or utilitarianism). Particular attention is given to the more developed hybrid models proposed by Norval Morris, Paul Robinson, and Andrew von Hirsch. The chapter concludes that limiting retributivism—with the modifications and additions embodied in this book’s proposed model—is superior to other hybrid and nonhybrid models, all of which have major flaws both in theory and in practice. But there is a substantial degree of consensus on many points, and most of the proposed model’s sentencing principles have been endorsed by previous writers.Less
Punishments require clear and convincing justification—by definition, they impose unpleasant and usually harmful consequences on offenders, and they also consume scarce public resources. Moreover, purposes of punishment often conflict in particular cases. Hybrid (or “mixed”) punishment theories seek to reconcile these conflicts while recognizing multiple punishment justifications. This chapter summarizes and critiques hybrid theories proposed by other writers, as well as nonhybrid theories (pure retributivism or utilitarianism). Particular attention is given to the more developed hybrid models proposed by Norval Morris, Paul Robinson, and Andrew von Hirsch. The chapter concludes that limiting retributivism—with the modifications and additions embodied in this book’s proposed model—is superior to other hybrid and nonhybrid models, all of which have major flaws both in theory and in practice. But there is a substantial degree of consensus on many points, and most of the proposed model’s sentencing principles have been endorsed by previous writers.
R.A. Duff
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780199752232
- eISBN:
- 9780199895342
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199752232.003.0002
- Subject:
- Law, Criminal Law and Criminology
This chapter offers new perspectives on his position that punishment communicates the censure that the offender deserves for his crime, focusing on the challenge of explaining why penal “hard ...
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This chapter offers new perspectives on his position that punishment communicates the censure that the offender deserves for his crime, focusing on the challenge of explaining why penal “hard treatment” should be the appropriate means of communication. The chapter meets that challenge by showing that appropriate kinds of penal hard treatment can serve as a vehicle for a two-way communication between offender and political community—the communication of formal censure from community to offender, and of formally apologetic recognition from offender to community—which is motivated by the offender’s wrongdoing as ascertained during a fair trial, which Duff emphasizes as critical to the retributivist project. This chapter goes beyond the author's last book in developing the “apology” dimension and saying more about the relationship between retributive and restorative justice, bringing together ideas from some of the work that he has published since then (most in relatively obscure publications).Less
This chapter offers new perspectives on his position that punishment communicates the censure that the offender deserves for his crime, focusing on the challenge of explaining why penal “hard treatment” should be the appropriate means of communication. The chapter meets that challenge by showing that appropriate kinds of penal hard treatment can serve as a vehicle for a two-way communication between offender and political community—the communication of formal censure from community to offender, and of formally apologetic recognition from offender to community—which is motivated by the offender’s wrongdoing as ascertained during a fair trial, which Duff emphasizes as critical to the retributivist project. This chapter goes beyond the author's last book in developing the “apology” dimension and saying more about the relationship between retributive and restorative justice, bringing together ideas from some of the work that he has published since then (most in relatively obscure publications).
K. E. Boxer
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199695324
- eISBN:
- 9780191752216
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199695324.001.0001
- Subject:
- Philosophy, Moral Philosophy
This book is about moral responsibility and whether such responsibility is compatible with causal determinism. It is written by a philosopher who began with deeply incompatibilist intuitions, but ...
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This book is about moral responsibility and whether such responsibility is compatible with causal determinism. It is written by a philosopher who began with deeply incompatibilist intuitions, but grew dissatisfied with the arguments that contemporary incompatibilists marshal in support of incompatibilism. If incompatibilists are to provide a more adequate argument, the book argues, then they must shift their attention away from metaphysics and back to what Hart deems the primary sense of the concept of responsibility, viz., the liability sense. To say that an agent is morally responsible for an action in the liability sense is to say that she satisfies the necessary causal and capacity conditions for desert of certain forms of response. If incompatibilists wish to show that a requirement for ultimate responsibility is among these conditions, they must clarify their understandings of moral desert and the forms of response at issue in discussions of moral responsibility. The book develops several different understandings and questions whether, on any of them, moral responsibility requires ultimate responsibility. Other issues discussed include what renders a defect a moral defect or appraisal moral appraisal; whether moral obligations are act-governing or will‐governing; the nature of the connection between the moral reactive attitudes and certain retributive sentiments; the relevance to moral responsibility of the capacity to participate in ordinary adult interpersonal relationships; and whether desert of punishment can be understood in communicative terms. The book concludes that incompatibilists have either to defend a form of moral retributivism that many believe indefensible or abandon incompatibilism.Less
This book is about moral responsibility and whether such responsibility is compatible with causal determinism. It is written by a philosopher who began with deeply incompatibilist intuitions, but grew dissatisfied with the arguments that contemporary incompatibilists marshal in support of incompatibilism. If incompatibilists are to provide a more adequate argument, the book argues, then they must shift their attention away from metaphysics and back to what Hart deems the primary sense of the concept of responsibility, viz., the liability sense. To say that an agent is morally responsible for an action in the liability sense is to say that she satisfies the necessary causal and capacity conditions for desert of certain forms of response. If incompatibilists wish to show that a requirement for ultimate responsibility is among these conditions, they must clarify their understandings of moral desert and the forms of response at issue in discussions of moral responsibility. The book develops several different understandings and questions whether, on any of them, moral responsibility requires ultimate responsibility. Other issues discussed include what renders a defect a moral defect or appraisal moral appraisal; whether moral obligations are act-governing or will‐governing; the nature of the connection between the moral reactive attitudes and certain retributive sentiments; the relevance to moral responsibility of the capacity to participate in ordinary adult interpersonal relationships; and whether desert of punishment can be understood in communicative terms. The book concludes that incompatibilists have either to defend a form of moral retributivism that many believe indefensible or abandon incompatibilism.
John Braithwaite and Philip Pettit
- Published in print:
- 1992
- Published Online:
- October 2011
- ISBN:
- 9780198240563
- eISBN:
- 9780191680205
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198240563.003.0010
- Subject:
- Philosophy, Political Philosophy
This chapter does no more than touch upon some salient conclusions. First, it highlights the key features of the republican theory. Second, it notes major complaints against retributivism; and third, ...
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This chapter does no more than touch upon some salient conclusions. First, it highlights the key features of the republican theory. Second, it notes major complaints against retributivism; and third, it identifies the common ground between the two theories, with a view to further dialogue.Less
This chapter does no more than touch upon some salient conclusions. First, it highlights the key features of the republican theory. Second, it notes major complaints against retributivism; and third, it identifies the common ground between the two theories, with a view to further dialogue.
John Braithwaite and Philip Pettit
- Published in print:
- 1992
- Published Online:
- October 2011
- ISBN:
- 9780198240563
- eISBN:
- 9780191680205
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198240563.003.0001
- Subject:
- Philosophy, Political Philosophy
This chapter sets out the purpose of the book, which is to develop a theory of criminal justice that does not impel us to think about harmful conduct in terms of crime and punishment. It provides a ...
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This chapter sets out the purpose of the book, which is to develop a theory of criminal justice that does not impel us to think about harmful conduct in terms of crime and punishment. It provides a brief summary of the state of the art in criminal justice scholarship. It discusses the resurgence of retributivism and the importance of debate. An overview of the subsequent chapters is presented.Less
This chapter sets out the purpose of the book, which is to develop a theory of criminal justice that does not impel us to think about harmful conduct in terms of crime and punishment. It provides a brief summary of the state of the art in criminal justice scholarship. It discusses the resurgence of retributivism and the importance of debate. An overview of the subsequent chapters is presented.
