Punishment in Criminal Law

a criminal, C, inflicts an injustice upon their Victim. thus C deserves to suffer an injustice: an excessive punishment.

The literature on G. W. F. Hegel’s theory of punishment is marked by persistent scholarly disagreement. Instead of taking this interpretive diversity as a defect of the debate, we should think of it as a helpful piece of meta-exegetical evidence that points to a structural feature of Hegel’s account: there are multiple justifications of punishment that correspond to different spheres of right, such as the family, civil society, and the state. For Hegel, punishment is justified objectively when it coheres with (...) the multifarious normative logic of Ethical Life. And it is justified subjectively when justice is seen to be done. Overall, Hegel does not offer us a conventional normative argument for when the state ought to punish wrongdoers. Rather, he is concerned with the question of how punishment fits into a rationally ordered social world. (shrink)

This text is a kind of sketch and presents some simple ideas. The aim of this article is to carry out a critical and reflexive analysis of Roman Ingarden's philosophy of responsibility. Being a member of the phenomenological current, Ingarden mainly studied the ontological bases or conditions of responsibility by identifying different situations of responsibility. In this paper situations of responsibility have been analysed in the semantic contexts in which the word "responsibility" appears. Legally, the prescriptive contexts of using the (...) word "responsibility" are particularly important since they are usually either ignored or inadequately separated from descriptive contexts. Roman Ingarden's views were supplemented by Alf Ross's aspects of responsibility. As a result, the elementary ways of understanding responsibility have been reconstructed; they are the basis for reflections on moral responsibility as well as legal responsibility. (shrink)

Destined for the Cardozo Law Review. Posted 28 November 2006.

This paper aims at bringing a new philosophical perspective to the current debate on the death penalty through a discussion of peculiar kinds of uncertainties that surround the death penalty. I focus on laying out the philosophical argument, with the aim of stimulating and restructuring the death penalty debate. I will begin by describing views about punishment that argue in favour of either retaining the death penalty (‘retentionism’) or abolishing it (‘abolitionism’). I will then argue that we should not ignore (...) the so-called “whom-question”, i.e. “To whom should we justify the system of punishment?” I identify three distinct chronological stages to address this problem, namely, “the Harm Stage”, “the Blame Stage”, and “the Danger Stage”. I will also identify four problems arising from specific kinds of uncertainties present in current death penalty debates: (1) uncertainty in harm, (2) uncertainty in blame, (3) uncertainty in rights, and (4) uncertainty in causal consequences. In the course of examining these four problems, I will propose an ‘impossibilist’ position towards the death penalty, according to which the notion of the death penalty is inherently contradictory. Finally, I will suggest that it may be possible to apply this philosophical perspective to the justice system more broadly, in particular to the maximalist approach to restorative justice. (shrink)

Two-tiered mixed theories of punishment hold that legislatures should act according to consequentialism, but the judiciary should act according to retributivism. A major motivation for these theories is wanting to preserve the idea that punishment is ultimately justified on consequentialist grounds, without falling prey to the Punishing the Innocent objection. Yet this benefit is illusory. While two-tiered mixed theories successfully avoid the Punishing the Innocent objection narrowly construed, they do not successfully escape the point behind it. This is because cases (...) can be constructed with the same problems as those used to describe the classic Punishing the Innocent objection, just bumped up to the legislature. (shrink)

Deterrence justifications of legal punishment say that it’s justified because it can deter wrongdoing. A common objection to these justifications says that legally punishing wrongdoers for this purpose uses them in a morally objectionable way. This paper defends an especially challenging version of the use objection and shows how the objection can be modified to create problems for those who think that there’s an easy way to evade standard versions of the use objection.

US law forbids foreigners from entering the United States without its approval. Violation of such law is subject to criminal punishment, which raises the question of whether the violation is morally wrong. In this Article, I will demonstrate that even under seriously unfavorable assumptions—(1) the United States is morally permitted to keep foreigners out and (2) there exists a moral obligation to follow some mala prohibita laws—it is nevertheless morally permissible for foreign citizens to cross the border without the approval (...) of the United States. The law prohibiting entry without approval is US malum prohibitum law, and moral obligations to follow US mala prohibita law attach to US citizens, not foreign citizens. (shrink)

This paper lays out a principle of consistency and shows how it justifies lenient sentences for juvenile offenders. The principle holds that, if the state disadvantages someone by applying the rationale of a legal rule, it has a reason of fairness to act on that same rationale when doing so would advantage them. As applied to juvenile leniency, the law systematically assumes that juveniles are diminished in their normative capacities. These rules, putting the penal context to one side, operate to (...) disadvantage those juveniles for whom the assumption is false. This places the state under a duty, owed to these juveniles as a matter of fairness, to act on the same assumption when it would work to their advantage. Such juveniles are therefore owed lenient sentences. (shrink)

In Punishment for the Greater Good, Adam Kolber defends consequentialism as a better justification for punishment than retributivism. Here we reject the dichotomy and seek to motivate expressivism as a genuine alternative. According to expressivism, what justifies punishment is its expression of a fitting message. We show how expressivism can be developed to avoid Kolber’s objections to retributivism, while having a number of advantages over his preferred consequentialism.

We hope that criminal punishment will persuade offenders to morally reform themselves. For instance, the experience of imprisonment ought to guide offenders to reflect on their wrongdoing and recognise the need for change. This ideal of moral persuasion is frequently invoked by philosophers of punishment, but it remains unclear how punishment might communicate this moral message. Until we answer this, we will not know whether our current practices of punishment are compatible with this reformatory ideal. This is particularly pressing in (...) the case of imprisonment, given the significant moral and material harms it produces. In this article, I draw on communicative theories of punishment to examine how punishment might morally persuade, and evaluate imprisonment by this standard. I argue that prisons are structurally ineffective at morally persuading offenders and risk undermining any such process. Considerations of moral persuasion therefore provide a pro tanto case against imprisonment. (shrink)

Selective exclusionary rules, including protective orders and parole conditions, target an offender’s decision-making processes by attempting to keep them away from places or persons. State management of crime by selective exclusion seems to distrust a person’s ability to choose well in certain circumstances, and thus attempts to limit or manipulate the opportunities for choice. Some exclusionary rules, including certain protective orders that prohibit proximity to a likely victim, support diachronic agency and may be justified as punishment. However, selective exclusionary rules (...) that are too harsh and thus disproportionate, and those that are not well designed to have the right sort of deterrent effect, cannot be justified as punishment. Further, some exclusionary rules may constitute state coercion or wrongful manipulation. (shrink)

Debates on climate justice typically centre on the global allocation of mitigation, adaptation, and compensation for loss and damage burdens. However, the importance of punishing those whose actions constitute what I will call climate crimes is often overlooked. In this paper, I argue that a just global response to climate change must incorporate punitive justice alongside distributive and corrective justice frameworks. Adapting Robert Nozick's argument from fear to the international and climate context, I contend that those whose actions produce fear (...) of the most severe consequences of climate change ought to be punished. Not all fear producing actions warrant criminalisation, however. I argue that only actions that impose a serious and unjustifiable risk of violating basic rights or actually violate them, and that are committed intentionally or with a particular type of recklessness, should qualify as climate crimes and be subject to international punitive justice. (shrink)

Nathan Hanna has recently addressed a claim central to my 2013 article ‘Must Punishment Be Intended to Cause Suffering’ and to the second chapter of my 2016 book An Expressive Theory of Punishment: namely, that punishment need not involve an intention to cause suffering. -/- Hanna defends what he calls the ‘Aim To Harm Requirement’ (AHR), which he formulates as follows. AHR: ‘an agent punishes a subject only if the agent intends to harm the subject’ (Hanna 2017 p969). I’ll try (...) to show in this note that Hanna’s latest attempts to defend AHR fail. I’ll start by setting out my own view, drawing attention to one significant, but perhaps understandable, misstatement of Hanna’s. I’ll then discuss two alleged counter-examples that Hanna presents to my view, and show that they both fail in their own terms. I’ll also argue that, given assumptions that Hanna is willing to make a scenario closely related to one that Hanna presents counts against AHR. I’ll then discuss how significant it would be if these counter-examples were successful. My view is that it wouldn’t matter much, and that anyone attracted to abolitionism should agree. I’ll conclude with a brief discussion of Hart, which may be of interest to enthusiasts and Hart scholars. (shrink)

Review of Jason Springs' _Restorative Justice and Lived Religion: Transforming Mass Incarceration in Chicago_ (New York: New York University Press, 2024).

How can we justify the practice of punishing offenders? Constrained Instrumentalism has become an attractive alternative to traditional answers like Retributivism and Instrumentalism. This paper focuses on two versions of this view, the Forfeiture View and the Duty View, and argues that both face a False Confessions Problem: they cannot adequately explain why we should punish, or at least prefer to punish, only those guilty of a crime instead of anyone who voluntarily but falsely confesses to a crime. They fail (...) to account for the powerful intuition that punishment should not be simply about pursuing valuable ends (like general deterrence) without violating rights but, fundamentally, should be about pursuing these ends by punishing the guilty. Finally, I suggest that Constrained Instrumentalists might avoid this objection by defending something like ‘instrumental desert’. (shrink)

I defend Abolitionism, the view that legal punishment is almost never morally justified. My argument in one sentence is: legal punishment intends harm and this aspect of it is almost never morally justified. Many punishment theorists think that Abolitionism is deeply at odds with common sense and that it’s subject to decisive objections. Against this, I argue that the standard objections to Abolitionism fail and that commonsense judgments support the view. Along the way, I defend novel positions in some longstanding (...) debates in criminal law theory and ethics, including debates about the significance of moral desert and the relevance of intentions to ethics. (shrink)

Philosophical anarchism claims that states are not legitimate but may still be justified in executing many functions we associate with states, especially punishing those who violate the rights of fellow subjects of the state’s authority. I suggest that one cannot hold both claims simultaneously. I argue that appropriate punishment requires the punisher to have the standing to punish the offender, and that for the state to acquire that standing, it must sit in a legitimating relationship with its subjects. If that’s (...) right, the philosophical anarchist must deny that most states may punish or deny that most states are illegitimate. Either direction compromises the distinctiveness of philosophical anarchism. (shrink)

Chapter 2 articulates and motivates the relational ethic that grounds all the thought about justice in the rest of the book. According to it, a moral agent is obligated to treat individuals with respect in virtue of their capacity to be party to communal (or friendly) relationships, which consist of the combination of identity and solidarity. In addition to contrasting the ethic with rival normative frameworks, such as utilitarianism and Kantianism (Rawlsianism), the chapter provides some reason to take it seriously (...) as a foundational principle, indicating how it appears to account well for a variety of intuitive moral judgements. After this chapter has advanced a relational ethic of respect for our communal nature or ‘rightness as friendliness’, the remaining chapters apply it to a variety of types of justice. (shrink)

Chapter 9 advances an account of the proper end of criminal or punitive justice, articulating and defending state punishment as a way to foster a respectful reconciliation between offenders and their victims. Reconciliation is usually associated with non-punitive responses to crime, but this chapter’s slogan is ‘reconciliation without forgiveness’, arguing that a particularly desirable form of reconciliation includes an under-appreciated sort of punitive accountability as one element. The core claim is that, instead of harming offenders simply because they deserve it (...) or to deter other potential offenders, punishment should consist of constrictive, painful labour by which the state (if not also offenders) would disavow offenders’ having flouted relational values and by which offenders would promote them by rehabilitating their characters and compensating their victims. This chapter brings out what the critical implications of imposing such productive burdens on offenders would be for both the death penalty and imprisonment, arguing that justice prescribes moving away from them. (shrink)

Chapter 4 takes up another major dimension of distributive justice at the domestic level, which involves the right allocation of certain economic goods, specifically opportunities to acquire higher education or employment. This chapter accepts the standard view that, in the absence of prior injustice such as discrimination, opportunities should usually be awarded on the basis of qualifications as opposed to features such as race, gender, or class. However, it maintains that such equal opportunity is justified as a way to respect (...) people’s communal capacity to aid others and that this rationale is a more plausible ground than appeal to either utilitarian efficiency or Rawlsian access to primary goods. Similar to the previous chapter, a slogan for this one could be ‘equal opportunity without neutrality or autonomy’, as this chapter argues that invoking thick conceptions of good life makes the best sense of an enforceable right to be given equal consideration for positions. (shrink)

Chapter 6 addresses political justice in the narrow sense of how to allocate the power to make laws in a territory. This chapter defends consensual representative democracy, which is a familiar view amongst African political philosophers, although still largely unknown to or under-appreciated by those in other traditions. This view prescribes a ‘non-party polity’ in Kwasi Wiredu’s influential formulation, the position that a law is justly adopted only if all elected representatives have agreed to it, which would differ from both (...) one-party dictatorships and multi-party democracies. The chapter’s motto is ‘democracy without majority rule’. One contribution consists of showing that consensual representative democracy more clearly follows from the author’s communal ethic than from grounds advanced by other African political philosophers, such as appeals to vitalism in the work of Bénézet Bujo, the common good à la Kwame Gyekye, or a basic right to substantive representation in Wiredu. Another contribution is to show that consensual democracy can avoid objections that recently have been made to it, specifically to the effect that it would either make change difficult or stifle idiosyncratic views. (shrink)

This chapter begins by articulating and motivating the project of providing a comprehensive account of justice that addresses a wide variety of its dimensions by appealing to relational values that have been salient particularly in the African philosophical tradition but more generally in the Global South. After an initial statement, this chapter addresses the respect in which this project is taken to be a work of African philosophy, where some will want to know what it means to call something ‘African’, (...) and others will doubt that the orientation is entitled to the label. Next, this chapter responds to some of the more salient reasons why fans of relationality have so often been suspicious of the category of justice, intending to open the sceptical reader’s mind to the project of conceiving justice relationally. The rest of the chapter provides overviews of all the other chapters, which are divided according to whether they address ideal or non-ideal theory. (shrink)

Chapter 5 completes the discussion of economic justice, with a focus on possessions as opposed to positions. Largely by drawing an analogy with the right way to allocate property in a communal family, this chapter provides a novel account of what to distribute in terms of what would realize relationships of identity and solidarity between the state and citizens and between citizens themselves. The slogan here is ‘egalitarianism without neutrality or autonomy’, with rejection of the redistributivism of Rawls, Dworkin, and (...) similar liberal thinkers. The best explanation of why the state must redistribute wealth to fight poverty and provide healthcare is that an impoverished or unhealthy life is bad and that a life free from poverty and illness/injury would be better, judgements that are not neutral in respect to conceptions of how to live and are not well captured by the value of autonomy. The state should allocate what would enable people to avoid a bad life, which entails distributing not merely means that would facilitate a wide array of life plans (including bad ones), variously labelled ‘primary goods’ (Rawls), ‘resources’ (Dworkin), or ‘manna’ (Ackerman), but also, and centrally, means that would foster relationality, excellence, and vitality. The chapter also appeals to a family analogy to articulate and defend a new ‘balancing’ principle to govern how much property each person should have, which differs from familiar consequentialist, prioritarian, egalitarian, and sufficientarian approaches that dominate the global literature on distributive justice. (shrink)

The core idea of A Relational Theory of Justice is that normative economic, political, and legal philosophy should be grounded on people’s relational features, in particular their ability to commune with others and be communed with by them. Usually, philosophers of justice in the West have based their views on people’s intrinsic features, ones that make no essential reference to others, such as their autonomy, self-ownership, or well-being. In addition, often critics of basing institutional choice on justice, whether in the (...) African, feminist/care, Marxian, or Confucian traditions, have appealed to non-intrinsic values as leverage, roughly contending that relationships are more important than justice. In contrast to both camps, this book articulates and defends accounts of justice based on the dignity of people’s relational nature. A proper valuation of people’s capacity to be party to communal relationships does not transcend categories of justice but instead calls for sorts that differ in plausible ways from those grounded on intrinsic properties. Applications are discussed in the contexts of distributive, compensatory, criminal, transitional, and global justice. Together they are intended to constitute an appealing big picture of communal governance that rivals the grand comprehensive philosophies of, e.g., utilitarianism, Rawlsianism, and Lockean natural rights theory. Table of contents downloadable. (shrink)

Chapter 10 mostly discusses the classic issue of what constitutes a just cause for going to war. In the West these days, rebutting aggression, centrally understood as state violation of territorial integrity, is widely taken to be the sole just cause to initiate military conflict. However, appealing to the communal ethic, this chapter argues that military conflict, as an instance of defensive force, is justified to rebut severe discord, which entails that it can be rightly deployed in response to non-statal (...) actors, to protect access to vital natural resources, or to prevent a people’s culture from being eradicated. In addition, it argues that conceiving of the just cause for war in terms of preventing or stopping substantial discord would plausibly forbid going to war for the purposes of either punitive general deterrence or merely to protect territory from incursion, contra salient views amongst contemporary Western philosophers. This chapter also contends that communal ties between states can inform who has a duty to fight for a just cause, an under-explored topic, and, still more, that reflection on communal ties between soldiers suggests the need for a new category of just war theory, the justice of temporarily pausing military conflict, which it dubs ‘jus interruptus bellum’. This chapter argues that partial obligations to one’s fellow soldiers can justify a truce in order to retrieve the dead and wounded or to exchange prisoners of war, an intuitive approach that classic just war theory has not acknowledged. (shrink)

Chapter 12 concludes the book by highlighting recurrent, overarching principles from the previous chapters, partly to summarize, but more to bring out the coherence between the various accounts of justice. In addition, this final chapter acknowledges some debates about justice that the author will not have addressed in this book but that merit being taken up in future work, supposing that communal governance as advanced here is indeed promising and worth extending. For instance, there is conceptual space for third-order principles (...) of injustice, concerning the violation of second-order principles. This chapter makes some suggestions about how to proceed in respect of that matter as well as several others not discussed thoroughly in A Relational Theory of Justice. (shrink)

Chapter 3 addresses one dimension of ideal, and specifically distributive, justice, concerning which rights to liberty the state must protect in its territory. A slogan for this chapter could be ‘liberalism without neutrality or autonomy’. The chapter provides a foundation for human rights that is not based on the view, shared by liberals such as Bruce Ackerman, John Rawls, Robert Nozick, Ronald Dworkin, and several others, that the state must avoid taking sides in respect to competing views of the good (...) (or bad) life. Although some others in the liberal tradition, such as Martha Nussbaum, have rejected neutrality before, the conceptualization of, and argument for, human rights advanced here are both new. The chapter maintains that negative human rights violations consist of extremely discordant ways of relating or are instances of enmity, which the state must forbid since they severely degrade the capacity of individuals to commune as subjects and objects. It shows that a wide array of familiar rights to civil liberties falls out of this approach, while noting that it entails some positions that neutralist liberals would reject. These positions include mild forms of state paternalism such as nudges, collective rights of a kind that could include the ability to engage in certain religious lifestyles, and a requirement for the state to protect some animal rights. This chapter maintains that these deviations from philosophical-liberal orthodoxy are plausible, and, indeed, that the author’s favoured approach makes good sense of several actual policies that have been widely adopted in contemporary states typically labelled ‘liberal’. (shrink)

Chapter 8 addresses civil or compensatory justice, the requirement that the state facilitate redress for victims of wrongdoing. One influential approach to thinking about compensatory justice for wrongful harm, not only in the West but also in much African philosophy, is the idea that an offender ought to strive to restore a victim he has injured to the state she would have been in absent the wrong done to her. This chapter shows that this principle has counterintuitive implications, and, furthermore, (...) that improving the victim’s quality of life (solidarity) in ways she accepts (identity) is a plausible, if not preferable, alternative. It illustrates and motivates this ‘compensation without restoration’ approach in the contexts of affirmative action, land reform, and cultural decolonization. (shrink)

Chapter 7 continues to address issues of political and distributive justice, but at the international, as opposed to national, level, with key topics including how foreign aid and globalization should be undertaken. In contrast to a large majority of the African and Western fields, this chapter rejects development theory and practice as both inappropriate for any conception of international economic justice, such that ‘foreign aid without development’ is the maxim. However, the chapter also, unlike much of the post-development literature, intends (...) to be constructive about what the alternative should be. In addition, it argues that respect for our communal nature provides a useful vantage point by which to appraise globalization. On the one hand, it entails that some kind of globalization is appropriate since it would be a welcome interdependence, contra many African political thinkers who prize self-reliance and authenticity, which are in fact characteristically Western values. On the other hand, it explains why so much of the present form of globalization is unjust for involving insufficient identity and solidarity between the West and the rest of the world, making prescriptions about various kinds of economic exchanges (e.g. investing, lending, trading) as they bear on poverty, employment, and culture. (shrink)

Chapter 11 takes up the topic of transitional justice, that is, the justice of moving from an extremely unjust social order towards one that is qualitatively better. Just as a certain kind of reconciliation should be the aim of a criminal trial, as per a previous chapter, so it at the national level should be the aim of public bodies in the wake of large-scale atrocity or other conflict. The chapter argues for the novel view that both the revelation of (...) truth about wrongdoing and the imposition of a certain kind of punishment for it (based on productive burdens) are constitutive of a desirable form of national reconciliation, instead of being ‘extra’ conditions or mere means towards that end. Hence, ‘reconciliation without amnesty’ is this chapter’s motto in respect of transitional justice. Although amnesty can be all things considered justified if necessary to foster enough political change, it would necessarily bring with it a cost to reconciliation itself, or so the chapter argues. It contends that a fully just national reconciliation would have those guilty of human rights violations undertake labour of kinds that would be negotiated with victims and serve to make them better off. (shrink)

Why is it ethically permissible for the state to harm citizens who have committed criminal offenses? The traditional answers fall short. According to newer expressivist justifications of punishment, offenses must be condemned in the appropriate way, and the appropriate way is punishment. However, the best-known versions of this type of justification cannot give satisfactory replies to two objections: offenses need not be condemned, and they need not be condemned via punishment. This Article proposes a new form of the expressivist justification (...) which can answer these objections. A community holds certain values if the best account of why a group of people acts in a certain way is that they hold certain beliefs. Serious criminal offenses must be disavowed since otherwise it would be reasonable to judge that they are consistent with the community’s values. Disavowal must be sufficiently emphatic in order to answer the threat that the offense in question poses to the community’s values. Sufficiently emphatic disavowal of serious criminal offenses is only possible via punishment of the offender. (shrink)

This paper examines whether the expansion of post-colonial states into Indigenous territories – specifically the Conquest of the Desert in Argentina (1878–1885) – constitutes genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG). A central challenge in this analysis is the principle of non-retroactivity, which prohibits punishing conduct that was not legally defined as a crime at the time it was committed. I argue that while retroactive punishment is forbidden, retroactive recognition of genocide is (...) not. Drawing on legal and philosophical arguments, the paper contends that the Conquest of the Desert satisfies the criteria for genocide established by the CPPCG. At the same time, recognising these events as genocide does not violate the principle of legality, because the underlying acts were already punishable under the criminal law in force at the time. Courts may therefore characterise such conduct as genocide while applying the penalties prescribed by the law applicable when the crimes were committed. This approach allows the legal system to acknowledge the specific gravity of genocidal violence while respecting the prohibition of retroactive punishment, contributing to ongoing debates on historical justice and accountability for past human rights violations. (shrink)

The institution of legal punishment, according to penal abolitionists, should be abandoned. But can we do without it? In this paper, I tackle this question and provide a tentative positive answer. Drawing on evidence from the social sciences, I argue that legal punishment has been crucial to enable cooperation in large-scale societies, but this does not mean that it is indispensable for this end today, as alternatives are available. I support this claim by defending one of such alternatives, namely pure (...) restitution, from several crippling objections. My defense of restitution modifies the underlying theory, making it considerably less pure in a sense I shall specify, but also more promising as a potential alternative to legal punishment. (shrink)

Successful criminal attempts at an intended offense and failed attempts at the same are differentially punished, which means that a successful attempt carries more punishment than the failed attempt. However, because the difference between success and failure can be decided by luck or allegedly irrelevant factors, moral and legal philosophers have opposed differential punishment on the argument that offenders are equally morally blameworthy whether or not their criminal attempts succeed. Using premises accepted by those who oppose differential punishment, I offer (...) a justification of differential punishment grounded in a relevant moral difference between realized and unrealized criminal attempts that involves rejecting the merger doctrine in criminal law. Under this doctrine, the criminal attempt and the intended offense should merge at conviction, which means the offender is only punished for the attempt or the intended offense but not both. I argue that the merger doctrine should not always apply, especially to attempted murder. If so, murder should carry more punishment than attempted murder by the same logic that committing two crimes should carry more punishment than committing either crime alone. (shrink)

This article engages with the mental and emotional transition of victims in the post-violation process in light of recent retributive theories. It argues that two separate yet related needs of victims must be addressed by legal intervention: normative vindication and therapeutic recovery. Retributive punishment can be said to right the wrong done to victims, expressing the message that they are violated and should be vindicated. It achieves this by reaffirming their normative status while also addressing and redressing their sense of (...) injustice and moral vulnerability: normative restoration. However, the senses of injustice and moral vulnerability are different from those of injury, loss, and grief. Even if retributive punishment provides a means of communicating solidarity with victims in a normative sense, it is doubtful how it provides healing for the losses and injuries left unrepaired. Victims also require a therapeutic intervention, allowing them to come to terms with the sufferings of violation: ethical restoration. This article claims that recent victim-oriented retributivism highlights a dimension of punishment that has not been sufficiently explored in penal theory by providing normative restoration, but it is not clear whether it is structurally well positioned to address and heal the deeper wounds caused by criminal violation. (shrink)

This book explores a foundational philosophical tension in contemporary retributivism, revealing ambiguities in its approach to punishment between two conflicting conceptions of restoration: legal justice and ethical love. Through an analysis of the three parties involved in a crime—the victim, the offender, and the state—it argues that neo-retributivism has not sufficiently incorporated the ethical face of punishment into its theoretical framework. The pull of legal justice is often so strong that the voice of ethical love is silenced; neo-retributivism is at (...) an impasse. To navigate this, the book engages with contemporary critical criminal justice scholarship, introducing the ideal of loving justice while highlighting an unresolved tension between penal reformism and abolitionism. -/- The book will be of interest to academics and researchers working in the areas of Philosophy of Punishment, Criminal Law Theory, Criminal Justice, Restorative Justice, Philosophy of Law, Political Philosophy and Hegel scholarship. (shrink)

In this brief paper I suggest that felony murder might be helpfully added to William Lane Craig’s ensemble of legal analogies for penal substitutionary atonement (PSA). The upshot of including it is that Craig becomes enabled to dodge a worry raised by Oliver Crisp about imputing serious crimes to personally innocent individuals. However, I also point out that there could be issues with this move which are more trouble than they are worth. So, I conclude by proposing that Craig might (...) be best served by either revising his view of retributivism or becoming a nonnecessitarian about the atonement. (shrink)

In this paper I contend that a rapprochement between Eleonore Stump and William Lane Craig’s views of the atonement is possible. In fact, such a union of the two can ameliorate difficulties each faces on its own. Particularly, Stump’s work faces difficulties regarding her “Anselmian” conceptual category, the role of divine justice in atonement, and the “stain on the soul” while Craig seems to overly bifurcate justification from sanctification and neglect divine love. These problems can be addressed using the resources (...) each can provide the other, resulting in a synthetic account that benefits from what Stump and Craig respectively offer. Moreover, this account can engage common concerns from both Catholic and Protestant views of the atonement in turn, thereby offering a distinctively ecumenical position as well. In light of both of these aspects of its construction, this model is here called “the moderated ecumenical interpretation of the atonement” or “MEI.”. (shrink)

Political power is always coercive, and is none more so in domestic politics than the criminal law and its associated power to punish. If this power is to be used in a just way, it must be done in a manner that all members of society can accept. This paper is an attempt to work out some normative parameters for an acceptable theory of punishment by examining its institutional role in a just, liberal state. In doing so, this paper treats (...) punishment theory as a topic in political philosophy, as opposed to moral philosophy. In this way, the account differs from most approaches to a theory of punishment, which are based on what we might call “personal morality.” In this paper, I focus on the role that punishment would play as an institutional part of a state governed by just rules and explore how the features of the institution could be justified to the citizens of the state in question. (shrink)

We argue that there is nothing that can do the work that normative reasons are expected to do. A currently popular view is that in any given situation, a set of normative reasons (understood as a set of facts, typically about the agent’s situation) always determines the ways we prospectively should or should not respond. We discuss an example that we think shows no such collection of facts could have this normative significance. A radical response might be to dispense with (...) reasons and explain the facts about the ways we should respond using something else entirely (e.g., expected value). We think a more fruitful approach is to explore the possibility of using decision-theoretic tools in a reasons-centred framework. (shrink)

This paper examines how global manipulation, defined as long-term exposure to indoctrination that profoundly shapes an individual’s valuational structure, impacts moral and, potentially, criminal responsibility. We explore this complex issue through the real-world case of Dominic Ongwen, a former child soldier whose identity, values, and agency were forged within the deeply manipulative and violent environment of the Lord’s Resistance Army (LRA). Ongwen was convicted by the International Criminal Court (ICC) in February 2021 for atrocities committed as an adult and sentenced (...) to 25 years in prison. By analyzing his trajectory, we critically assess how coercively reshaped moral understanding complicates the attribution of responsibility and challenges the moral legitimacy of punishment. We argue that Ongwen’s case exemplifies the conceptual and normative tensions between moral and criminal responsibility, raising questions about agency and blameworthiness in the aftermath of formative manipulation. (shrink)

Philosophers have long been debating the moral justifiability of punishment. However, they have seemingly ignored the adjacent question concerning the moral justifiability of incarceration, as demonstrated by the dearth of philosophical work on prison abolitionism. This silence is puzzling, given that, on closer examination, many philosophers implicitly (or even explicitly) endorse the core assumptions of prison abolitionism. By discussing some examples in the recent literature in philosophy of punishment, I argue that philosophers support prison abolitionism in practice, but not in (...) theory. They endorse the practical strategies in the abolitionist agenda, yet refuse to engage with the normative assumptions that ground them. This ambiguity stems from a deliberate methodological choice that relegates issues concerning the reality of prisons to the margins of the philosophical inquiry. In doing so, philosophers hinder a fair assessment of prison abolitionism as a legitimate moral theory in criminal justice. (shrink)

Pessimistic empirical evidence about the reformatory and deterrent effects of punitive treatment poses a challenge for all justificatory theories of punishment. Yet, the dominant progressive view remains that punishment is required for the most serious crimes. This paper outlines an empirically sensitive prospectus for justifying punitive treatment through understanding the importance of reintegration. On this view, punishment can be viewed as a preferred alternative to the rigours of social ostracism, a common way of dealing with offenders in lieu of formal (...) criminal justice. Adopting reintegration as a primary aim encourages taking a longer view which focuses on desistance from criminality rather than only on reform at the point of release from formal punishment. The view outlined in this paper enables a vindication of reintegrative punishment even when it is not the most immediately efficient means of reforming offenders. In making this argument, I develop the modern retributive platform in criminal justice theory, identify various overlooked yet key nuances in the relationship between reintegration and reform, and argue for greater theoretical and practical attention to how the state can make the communities they serve more receptive to reintegrating offenders. (shrink)

Criminal law practices in the US, including policing and incarceration, have drawn heavy criticism for their disproportionate impact on black people, particularly black men. At the same time, some feminist scholars and activists advocate for increases in criminal law responses to sexual assault, including expanding criminal statutes to cover more instances of sexual assault and increasing sentencing guidelines. These reforms are often justified by claims that criminal law should express more feminist values and reject sexist social schemas. This paper makes (...) the case that criminal legal interventions aimed at changing sexist social schemas, such as ‘rape culture,’ are unlikely to be successful because criminal law is effective at maintaining existing social norms, but bad at introducing novel ones. Similarly, in the US, criminality has been ideologically linked to blackness, so attempts to use the stigma of criminality to combat sexual violence are likely to reinforce anti-black racism. The very meaning of a criminal law depends on related social schemas, and the racist social schemas associated with criminality undermine the ability of criminal legal responses to present anti-sexist values. At best, criminal legal reforms aimed at expressing the equal dignity of women will be ambiguous because their meaning is negotiated by existing sexist and racist social schemas. Thus, penal expressivism cannot offer a justification for using criminal law to combat sexual assault. (shrink)

Retributive theories of punishment argue that punishing a criminal for a crime she committed is sufficient reason for a justified and morally permissible punishment. But what about when the state gets lucky in its decision to punish? I argue that retributive theories of punishment are subject to “Gettier” style cases from epistemology. Such cases demonstrate that the state needs more than to just get lucky, and as these retributive theories of punishment stand, there is no anti-luck condition. I’ll argue that (...) Gettier-style cases demonstrate an impermissible instance of punishment, even though they meet the conditions of retributive theories of punishment. Retributive theories are, therefore, too weak. The safety condition from epistemology provides the anti-luck condition needed for permissible punishment. I argue that two forms of retributivism, rights-forfeiture and what I call standard retributivism, are both subject to Gettier-style cases. Unlike the literature on standards of proof, this paper argues that safety is a condition on punishment itself, i.e., in all nearby possible worlds, the accuser must correctly accuse the convicted for the crime they actually committed. (shrink)