Retributivism

It is a common idea, and an element in many legal systems, that
people can deserve punishment when they commit criminal (or
immoral) actions. A standard philosophical objection to this
retributivist idea about punishment is that if human choices and
actions are determined by previous events and the laws of nature,
then we are not free in the sense required to be morally responsible
for our actions, and therefore cannot deserve blame or punishment.
It has recently been suggested that this argument can be backed up
by neuroscience, since neuroscientific explanations of human
behavior leave no room for non-determined free actions. In this
thesis, an argument of this sort is discussed. According to this
argument, that I call “the Revision Argument”, we should revise the
legal system so that any retributivist justification of punishment is
removed. I examine some objections to the Revision Argument
according to which compatibilism about free will and responsibility is
a morally acceptable basis of retributive punishment. I argue that
these objections have difficulties in providing a plausible account of
the relevant difference between people who deserve punishment for
their actions and people who do not. Therefore, I argue that they fail
to refute the conclusion of the Revision Argument.

Une etude de droit compare montre qu�aucune des deux tendances dominantes dans la philosophie penale americaine n�a reussi a penetrer dans la culture juridique continentale, essentiellement pour des raisons philosophiques et constitutionnelles. L�utilitarisme penal et son avatar le mouvement « Droit et economie », qui utilisent le raisonnement economique en droit, impregnent la philosophie penale anglo-americaine mais sont rejetes par la philosophie continentale, comme cela apparait de deux exemples juridiques : le cas du « mauvais samaritain » � autrement dit de la non-assistance a personne en peril � et celui des diffamations et injures racistes. Le retributivisme, une approche de la peine fondee exclusivement sur la morale deontologique, est de plus en plus pregnant aux Etats-Unis mais ne reussit pas a faire une percee dans le paysage juridique europeen. En realite, aucune philosophie penale ne peut justifier toute seule un systeme de regles privatives de liberte : l�utilitarisme...

espanolDesde la Antiguedad la pena de muerte es aplicada como castigo analogo a la accion cometida contra la vida y los credos religiosos. La religion habia asimilado esta sancion como una forma de salvaguardar a los no pecadores, de aquellas personas consideradas como peligrosas para la fe. Su discusion es de larga data y las posiciones a favor y en contra, siempre se'han hecho presentes, En America Latina, las altos indices de criminalidad llevan a que sectores sociales exijan se discuta sobre la necesidad de la aplicacion de la pena capital, como forma de combatir. la inseguridad, lo que desde lo teorico contrapone las teorias retributivas y utilitarias, asi como la normativa internacional en materia de proteccion de derechos humanos. EnglishSince ancient times, death penalty has been applied as a punishmentthat deserves those who attempt against lile and against religious beliefs, Religion had assimilated sanction as a way to preserve it from sinners, people considered as da...

The guilty get a good run in our judicial system while victims can be a dirty word. It's the world turned upside down.. .. Prominent defence lawyer Rob Stary, a member of the Law Institute's Criminal Law Section, believes victim impact statements provide the opportunity to find out how the victim feels.. .. "They are cathartic in their nature, they're helpful for the victim to articulate their positionand that's important-and allow the judge when they're determining penalty to understand the immediate long-term consequences,'' he explained. "Most judges, despite a view that they are removed from the community, in fact are highly sensitive to the impact upon victims. That's reflected in sentencing comments all over the place.'' Stary and I agree to disagree on this point. 1 I Introduction: a political context In this paper I discuss three aspects of the continuing debate over the use of Victim Impact Statements (VIS) in criminal proceedings. I aim to show, in each case, the dependence of key arguments in favor of VIS on presuppositions that can be characterized as political, in the sense that they enter the debate not so much through argumentation internal to the ethics of 2 criminal justice, as through the influence of a wider popular and media consensus about the entitlements of a citizen and the failings of the criminal justice system. I will focus primarily upon those arguments for VIS that frame them within a discourse of "justice" rather than "welfare," but I will acknowledge and distinguish the latter when necessary. I hope that one contribution of the paper will be to assist clarification of the distinction, and to promote reconsideration of the weight each type of justification can carry. An intimate relationship between the discourses of criminal justice and of the wider political realm is inevitable and indeed desirable. Both are informed by the attempts of people of goodwill to think rationally about deep and contested moral values, while keeping in clear view the general and specific facts of human life. We should set aside, plausible though it may sometimes seem, the notion of a wholly irrational popular sentiment beating down upon, and potentially corroding, the sober deliberations of the legislators and the courts. Instead I want to show, by evaluating certain arguments for VIS, that they are open to objections that can be successfully refuted if, and only if, influential, and rather specific, political presuppositions are brought to their aid. I do not aim to disprove or discredit these presuppositions, only to demonstrate their role in the case for VIS, though I believe we may think differently about the moral and political context of VIS if the analysis is accepted. What are these presuppositions, and how have they arisen? In contemporary western culture, most people believe that our social and political apparatus, including law, has value to the extent that it serves or facilitates individual well-being. The individual life is the locus of value; social goods are ultimately reducible to an aggregate of individual goods. This is not a universal or necessary view, and various conservative, religious, and communitarian traditions offer alternatives, mainly by affirming the existence of intrinsic or irreducibly social goods, 2 or by assailing the concept of individual autonomy. But it is the dominant belief, natural to a liberal democracy. And within it, often only loosely corresponding to

Cet ouvrage se donne pour tâche d’examiner les discours les plus emblématiques produits par la philosophie moderne au sujet de la peine de mort. Assumant d’emblée le point de vue abolitionniste, notre intention n’est nullement de « peser le pour et le contre », mais de poser la question suivante : dans quelle mesure est-il possible de fonder rationnellement le refus catégorique de la peine capitale ? À cet égard, le détour par l’histoire de la philosophie nous montre à quel point la raison est avant tout divisée contre elle-même. En effet, au terme d'un travail visant à mettre à l’épreuve la cohérence interne des partisans de la peine de mort (Locke, Kant, Stuart Mill), ainsi que de ses adversaires (Beccaria, Bentham), il nous est apparu impossible de conclure à un simple défaut de rationalité de la part des uns ou des autres. Ce que l'on constate au contraire, c'est que chaque démonstration se déploie à partir d'un certain nombre de principes éthiques indémontrables. Bien plus, chaque grand courant de la philosophie pénale est susceptible de donner lieu à des prises de position radicalement opposées. Mais pour peu que l'on se refuse à concevoir un abîme insurmontable entre la raison d'une part, et la sensibilité d'autre part, la philosophie morale peut bénéficier d'une approche dans laquelle le raisonnement et « le cœur » se complètent, au lieu de constituer une alternative. À cet égard, c'est dans l'œuvre de Jean-Jacques Rousseau qu’il nous a semblé possible de repérer les éléments permettant de fonder au mieux l’abolition.

Policies regarding masturbation among incarcerated men vary throughout the United States. To describe the state of these policies, a systematic review of prison masturbation policies was conducted. The review revealed that masturbation among incarcerated men is banned in most U.S. prisons (sometimes in all cases, and other times only when it is intended to disturb others, and/or is public). Furthermore, many states' Departments of Corrections have made these policies difficult for the public to identify. Prison masturbation bans have been defended on the grounds that they reduce STI transmission, help maintain order, prevent hostile work environments for female prison staff, assist in prison rape prosecutions, and assist in rehabilitating incarcerated people. By reviewing the available social science and endocrinological research on masturbation, those justifications are found to have minimal basis in scientific evidence. Conversely, the evidence does suggest the masturbation bans could potentially be linked with higher rates of violence, rape, exploitation, sex offender recidivism, insomnia, stress, depression, and suicide. Instead of being rooted in evidence, bans on prison masturbation seem to be primarily motivated by sex-negativity and the desire to retributively punish incarcerated people. To alleviate these harms, this article suggests allowing incarcerated men to masturbate within specifically identified circumstances, and/or to lessen existing punishments for masturbation. Potential problems with the implementation of the suggested policy are discussed, and a call is made to make inmate handbooks, which contain most of these policies, available to the public. Unique opportunities for penological and sexological research are identified.

Imprisonment is often said to be the ultimate back-up sanction for offenders who do not abide by their non-custodial sentence. From a standard consequentialist perspective this is morally justified, if it is a cost-effective means to crime prevention. In contrast, the use of imprisonment as a back-up is much harder to justify from retributivist perspectives, with their emphasis on just desert or deserved censure. The crux is this: if the reason for a non-custodial sentence is that a prison sentence risks being a disproportionate or inappropriate sanction, retributivists need to explain how a prison term can be warranted as the backup sanction for those who breach the requirements of their non-custodial sentence, even though their original crime wasn´t serious enough to warrant imprisonment in the first place. The aim in this paper is to critically assess the extent to which retributivists can justify the use of imprisonment as the ultimate back-up sanction. In doing so, I first examine two broad strategies that are discussed in the literature, and which retributivists could employ in order to respond to this problem. The first strategy stresses how desert has only a limited role in sentencing such that it demarcates a range of deserved punishment. On this view, associated with limiting retributivism, one could initially opt for a less harsh yet deserved punishment, leaving room for the imposition of back-up sanctions when needed. The second strategy focuses on how the act of breach is a reprehensible act that can allow for a penalty increase, and thereby lead to imprisonment. Although it is argued that both strategies fail, the paper proposes an alternative solution to this problem.

Die Philosophie viel über Rache geschrieben und dabei wenig über den Begriff der Rache gesagt. In diesem Aufsatz versuche ich, einen Begriff der Rache zu entwickeln, der weniger täterzentriert und mehr rächerzentriert ist, um das Phänomen der Rache zu mehr zu machen als dem Musterbeispiel einer falschen Handlung.

While retributivism provides one of the main sources of justification for punishment within the criminal justice system, there are good philosophical and practical reasons for rejecting it. One such reason is that it is unclear that agents truly deserve to suffer for the wrongs they have done in the sense required by retributivism. In Section 1 of this paper, I explore the retributivist justification of punishment and explain why it is inconsistent with free will skepticism. In Section 2, I then argue that even if one is not convinced by the arguments for free will skepticism, there remains a strong epistemic argument against causing harm on retributivist grounds that undermines both libertarian and compatibilist attempts to justify it. I maintain that this argument provides sufficient reason for rejecting the retributive justification of legal punishment. I conclude in Section 3 by briefly sketching my public health-quarantine model, a non-retributive alternative for addressing criminal behavior that draws on the public health framework and prioritizes prevention and social justice [12-15]. I argue that the model is not only consistent with free will skepticism and the epistemic argument against retributivism, it also provides the most justified, humane, and effective way of dealing with criminal behavior.

This paper seeks to critically evaluate the retributivist theory of punishment, making use of Jean Hampton’s writing "Forgiveness and Mercy" to make sense of the idea of retribution and to explain it in a way that distinguishes it from revenge.

This book offers a novel approach for the study of law in the Judean Desert Scrolls, using the prism of legal theory. Following a couple of decades of scholarly consensus withdrawing from the "Essene hypothesis," it proposes to revive the term, and suggests employing it for the sectarian movement as a whole, while considering the group that lived in Qumran as the Yahad. It further proposes a new suggestion for the emergence of the Yahad, based on the roles of the Examiner and the Instructor in the two major legal codes, the Damascus Document and the Community Rule.

The understanding of Essene law is divided into concepts and practices, in order to emphasize the discrepancy between creed, rhetoric, and practices. The abstract exploration of notions such as time, space, obligation, intention, and retribution, is then compared against the realities of social practices, including admission, initiation, covenant, leadership, reproof, and punishment.

The legal analysis yields several new suggestions for the study of the scrolls: first, Amihay proposes to rename the two strands of thought of Jewish law, formerly referred to as "nominalism" and "realism," with the terms "legal essentialism" and "legal formalism." The two laws of admission in the Community Rule are distinguished as two different laws, one of an association for a group as a whole, the other as an admission of an individual. The law of reproof is proven to be an independent legal procedure, rather than a preliminary stage of prosecution. The methodological division in this study of thought and practice provides a nuanced approach for the study of law in general, and religious law in particular.

O artigo diferencia os elementos da teoria da pena, com especial destaque ao fundamento e às finalidades da pena criminal. Analisa as doutrinas absolutas e relativas e as suas respectivas capacidades de oferecer tratamento específico aos problemas do fundamento e das finalidades da pena criminal. Pretende demonstrar a imprecisão da classificação dicotômica que confunde o fundamento da pena com as suas diversas finalidades. A conclusão é que o fundamento da pena é a retribuição da culpa do autor da ofensa, independentemente de quais sejam as finalidades primordiais de cada espécie de pena.

In an important 1984 paper, “The Moral Education Theory of Punishment,” Jean Hampton justifies the practice of inflicting painful criminal punishments if and only if punishment is morally educative. Hampton’s suggestion forms the point of departure for this paper on Dostoevsky’s Crime and Punishment. Below, I show that Dostoevsky agrees with Hampton that punishment should aim at moral reform; however, Dostoevsky presents no evidence that self-punishment or legal punishment reliably cultivates respect for law, legal authority, oneself, or for others as moral agents. Instead, Dostoevsky’s post-Siberian writings are highly critical of Russian criminal justice, and emphasize that moral education comes through dialogue, reflection, and criticism. This highly individualized treatment may be experienced as painful, but it does not have to result from, and it may even be impeded by, legal “hard treatment.”
Keywords: moral education; punishment; Dostoevsky; rehabilitation; crime

Con objeto de establecer las bases de un castigo penal justo, H.L.A. Hart propone una visión alternativa a las versiones tradicionales. El planteamiento de Hart muestra que los enfoques principales no han superado problemas de incuestionable importancia: la justificación moral del castigo penal y su aplicación justa. En este sentido, el trabajo de Hart se sitúa entre el consecuencialismo y el retribucionismo. De esta manera, si un castigo está justificado debe tener buenas consecuencias para la sociedad castigando sólo a quien lo merece. Finalmente, la propuesta de Hart conectará con su concepción del Derecho dando a los individuos las capacidades de guiar su propia vida con previsión, confianza, seguridad y libertad.

Policies regarding masturbation among incarcerated men vary throughout the United States. To describe the state of these policies, a systematic review of prison masturbation policies was conducted. The review revealed that masturbation among incarcerated men is banned in most U.S. prisons (sometimes in all cases, and other times only when it is intended to disturb others, and/or is public). Furthermore, many states’ Departments of Corrections have made these policies difficult for the public to identify. Prison masturbation bans have been defended on the grounds that they reduce STI transmission, help maintain order, prevent hostile work environments for female prison staff, assist in prison rape prosecutions, and assist in rehabilitating incarcerated people. By reviewing the available social science and endocrinological research on masturbation, those justifications are found to have minimal basis in scientific evidence. Conversely, the evidence does suggest the masturbation bans c...

The Buddha taught that there is no self. He also accepted a version of the doctrine of karmic rebirth, according to which good and bad actions accrue merit and demerit respectively and where this determines the nature of the agent’s next life and explains some of the beneficial or harmful occurrences in that life. But how is karmic rebirth possible if there are no selves? If there are no selves, it would seem there are no agents that could be held morally responsible for ‘their’ actions. If actions are those happenings in the world performed by agents, it would seem there are no actions. And if there are no agents and no actions, then morality and the notion of karmic retribution would seem to lose application. Historical opponents argued that the Buddha's teaching of no self was tantamount to moral nihilism. The Buddha, and later Buddhist philosophers, firmly reject this charge. The relevant philosophical issues span a vast intellectual terrain and inspired centuries of philosophical reflection and debate. This article will contextualise and survey some of the historical and contemporary debates relevant to moral psychology and Buddhist ethics. They include whether the Buddha's teaching of no-self is consistent with the possibility of moral responsibility; the role of retributivism in Buddhist thought; the possibility of a Buddhist account of free will; the scope and viability of recent attempts to naturalise karma to character virtues and vices, and whether and how right action is to be understood within a Buddhist framework.

I It is now commonplace to argue that punishment must 'fit'a particular crime, if this crime's punishment is to be justifiable. All general theories of punishment provide different methods of determining any punishment's fit with a crime. Deterrent theorists might argue that this value is determined by the difficulty of deterring instances of a given crime in the future. Thus, deterrent punishments are justifiable only when they are sufficiently severe to deter particular acts of crime.

Published in the Springer Journal Neuroethics
Available here: http://link.springer.com/article/10.1007/s12152-015-9243-6?wt_mc=internal.event.1.SEM.ArticleAuthorOnlineFirst

Neil Levy argues that the degree to which psychopaths ought to be held blameworthy for their actions depends on the extent to which they are capable of mental time travel--episodic memory and episodic foresight.  Levy claims that deficits in mental time travel prevent psychopaths from fully appreciating what it is to be a person, and, without this understanding, we can at best hold psychopaths blameworthy for harming non-persons.  In this paper, I build upon and clarify various aspects of Levy’s view.  Specifically, I begin by outlining the neurobiological data on mental time travel, and I argue that psychopaths, or at least some psychopaths, indeed appear to have the deficits Levy ascribes to them.  I then expand upon the legal implications of his argument.  I use an analogy between juveniles and psychopaths to argue that the penological justification for retributive punishment against psychopaths ought to be substantially diminished.

Executioners and others who come into close proximity with the condemned often come to reject the death penalty. They reject it not only in individual cases, and not only on the ground that the death penalty is poorly implemented. They conclude that capital punishment is wrong. I argue that the perspective of the executioner helps illuminate the debate about whether to abolish capital punishment, and raises the troubling possibility that support for the death penalty can survive only at a great remove. The essay responds to a recent article by Jeffrie Murphy focusing on the question of whether executioners can take pride in their work. I contend that Murphy asks the wrong question, and that the better question is whether anyone ought to be asked to do such work. On this latter question, the perspective of the executioner sheds important light. Like Murphy, I draw on works by and about Albert Pierrepoint, the " last hangman " of Britain. I also draw on the perspectives of numerous executioners, wardens, chaplains and other death row personnel. I argue that their perspectives offer a powerful argument against the main rationale for the death penalty: retribution. If retribution is keyed to the offender's character as well as his wrongful act, then post-conviction character ought to matter. The executioners' accounts share a common theme: that death row inmates change over time and hold the potential for redemption. If a trial for murder lasts too long, more than the murder will out. The man in the murderer will out; it becomes horrible to think of destroying him. Rebecca West, in A Train of Powder 1 (reporting on the Nuremberg Trials) Deciding that a man must have the definitive punishment imposed on him is tantamount to deciding that the man has no chance of making amends. This is the point…where the arguments clash blindly and crystallize in a sterile opposition. But it so happens that none among us can settle the question, for we are all both judges and interested parties. Albert Camus, in Reflections on the Guillotine 2 I have come to the conclusion that executions solve nothing, and are only an antiquated relic of a primitive desire for revenge which takes the easy way and hands over the responsibility for revenge to other people. Albert Pierrepoint, in Executioner:

In this interview, bioethicist Farah Focquaert explains the basic principles of a non-retributive conception of criminal justice. First, the central notions underlying retributivism — that of free will and desert-based responsibility — are addressed in a critical way. Focquaert then goes on to canvass a new way of conceiving the purposes of the system of criminal justice, with reconceptualized notions of personal responsibility and of sanctions forming its backbone. Focquaert argues that a society can remain safe and healthy without retributive measures, provided that an emphasis is placed on the prevention of crime, on the rehabilitation of the offenders and on the all-important perspective of the victim. The interview also considers the value of retributive emotions and the proper role of the new biomedical and neuroscientific technologies in the framework of the criminal justice system.

We begin in section I by considering two different routes to free will skepticism. The first denies the causal efficacy of the types of willing required for free will and receives its contemporary impetus from pioneering work in neuroscience by Benjamin Libet, Daniel Wegner, and John-Dylan Haynes. The second, which is more common in the philosophical literature, does not deny the causal efficacy of the will but instead claims that whether this causal efficacy is deterministic or indeterministic, it does not achieve the level of control to count as free will by the standards of the historical debate. We argue that while there are compelling objections to the first route—e.g., Al Mele (2009), Eddy Nahmias (2002, 2011), and Neil Levy (2005)—the second route to free will skepticism remains intact. In section II we argue that free will skepticism allows for a workable morality, and, rather than negatively impacting our personal relationships and meaning in life, may well improve our well-being and our relationships to others since it would tend to eradicate an often destructive form of moral anger. In section III we argue that free will skepticism allows for adequate ways of responding to criminal behavior—in particular, incapacitation, rehabilitation, and alternation of relevant social conditions—and that these methods are both morally justified and sufficient for good social policy. We present and defend our own preferred model for dealing with dangerous criminals, an incapacitation account built on the right to self-protection analogous to the justification for quarantine (see Pereboom 2001, 2013, 2014a; Caruso 2016), and we respond to recent objections to it by Michael Corrado and John Lemos.

The most widespread interpretation of Hegel’s theory of punishment is that it is retributivist, as the criminal punished is demonstrated to be deserving of a punishment commensurable in value to the severity of his crime. Thus, Hegel’s theory is individualistic because the only factor involved in determining a punishment’s magnitude is the criminal’s action itself. The problem with this interpretation is that it is limited to Hegel’s preliminary discussion of punishment within his theory of abstract right. In this paper, I take seriously the structure of the Philosophy of Right to underscore the relationship between Hegel’s treatment of punishment in abstract right and his later treatment within his theory of civil society. This reading produces substantive new insights, presenting us with a theory which determines the severity of punishments commensurable with the threat a criminal act poses for civil society, committing itself to a minimal retributivism at most.

Winner of a prize from the Hegel Society of Great Britain.

T. M. Scanlon’s contractualism is a meta-ethical theory that explains moral motivation and also provides a conception of how to carry out moral deliberation. It supports non-consequentialism – the theory that both consequences and deontological considerations are morally significant in moral deliberation. Regarding the issue of punishment, non-consequentialism allows us to take account of the need for deterrence as well as principles of fairness, justice, and even desert. Moreover, Scanlonian contractualism accounts for permissibility in terms of justifiability: An act is permissible if and only if it can be justified to everyone affected by it. This contractualist thesis explains why it is always impermissible to frame an innocent person, why vicarious punishment is impermissible, and why there has to be a cap on sentences. Contractualism therefore allows us to take deterrence as a goal of punishment without the excess of utilitarianism. This paper further argues that the resulting view is superior to pure retributivism. Finally, it shows why legal excuses and mitigation can be justified in terms of the notion of negative desert.

This article describes how criminal liability is contingent on two sets of factors: (1) criminal law's alternatives?civil, administrative and even non-legal strategies for addressing wrongdoing, and (2) choices in how we acknowledge social influences, instrumental goals, and the social costs of punishment. Moral culpability is weighed against utilitarian concerns in decisions to impose criminal sanctions. Further, even the assessment of culpability itself is mediated by utilitarian concerns driven by criminal law's alternatives. Conduct that can be effectively addressed non-criminally seems less culpable (despite explicit coverage by criminal law), and that makes utilitarian concerns?and civil sanctions and remedies?more likely to prevail when balanced against the need for retributive judgment of wrongdoing. This dynamic arises because criminal law's long-standing twin rationales, retributivism and deterrence, sometimes conflict in the response they counsel for culpable wrongdoing. In practice, criminal liability is not explained by culpability, nor by the familiar grounds for prosecutorial discretion?state resources limits, first-offense status, or marginal resulting harm. Neither do these considerations explain the wide variance in its use across the landscape of crime, from white-collar to "street" settings. The way we actually employ criminal liability demonstrates the contingency of criminal law, and culpability itself, on civil alternatives and social costs, and this has distributive implications. We use criminal liability for "street" wrongdoing much more than we do for white-collar wrongdoing; that variation cannot be explained by distinctions in those two settings, sets of offenders, or feasible alternative remedies. Yet reasons for it explain why we have yet to move street crime policy in the productive direction that increasingly characterizes white collar policy.

Half of the drug offenders incarcerated in the United States are black, even though whites and blacks use and sell drugs at the same rate, and blacks make up only 13 percent of the population. Noncomparativists about retributive justice see nothing wrong with this picture; for them, an offender’s desert is insensitive to facts about other offenders. By contrast, comparativists about retributive justice assert that facts about others can partially determine an offender’s desert. Not surprisingly, comparativists, especially comparative egalitarians, contend that differential punishment is retributively unjust. I agree with this assessment, but take issue with the reasons egalitarians cite in its favor. In this paper, I argue that differential punishment violates retributive justice because it contributes to structural racial oppression. Over the course of developing and defending this claim, I identify the shortcomings of both comparative egalitarianism and respectarianism, which is the most popular and plausible brand of noncomparativism.

Capital punishment is practiced in many nation-states, secular
and religious alike. It is also historically a feature of some
Buddhist polities, even though it defies the first Buddhist
precept (pāṇatipātā) prohibiting lethal harm. This essay considers
a neo-Kantian theorization of capital punishment (Sorell)
and examines the reasons underwriting its claims (with
their roots in Bentham and Mill) with respect to the prevention
of and retribution for crime. The contextualization of
this argument with Buddhist-metaphysical and epistemological
concerns around the normativization of value, demonstrates
that such a retributivist conception of capital punishment
constitutively undermines its own rational and
normative discourse. With this conclusion, the paper upholds
and justifies the first Buddhist precept prohibiting lethal
action in the case of capital punishment.

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Asymmetry theories about free will and moral responsibility are a recent development in the long history of the free will debate. Kant commentators have not yet explored the possibility of an asymmetrical reconstruction of Kant's theory of freedom, and that is my goal in this paper.  Asymmetry theorists hold that the standards that must be met to count agents as free and morally responsible are different in the context of the positive reactive attitudes and their attendant practices, such as praise and reward, than they are in the context of the negative reactive attitudes and practices including blame and punishment.  The most-discussed asymmetry theory, developed by Susan Wolf and Dana Nelkin, posits an ontological asymmetry: people can be blameworthy only if they had alternative possibilities, but can be praiseworthy even if they did not have alternative possibilities.  I have argued that even if we do not posit such an ontological asymmetry, we should acknowledge an epistemic and justificatory asymmetry—even if the ontological requirement agents must satisfy to be blameworthy is the same as the one they must satisfy to be praiseworthy, we must have better reasons for believing that the ontological requirement is satisfied to legitimately treat agents as morally responsible in the context of the negative reactive attitudes than we must have in the context of the positive reactive attitudes. This is because it is intuitive to think that people deserve the benefit of the doubt, and that there is a hazard of injustice in getting things wrong in connection with blame which does not exist in connection with praise, or at least does not exist in the same way or to the same degree. I will not propose a reconstruction of Kant's theory of freedom that posits an ontological asymmetry, since Kant is consistent about the ontology of transcendental freedom throughout his texts. But given the dramatic shifts in Kant's epistemology of transcendental freedom and the inconsistencies they inflict upon commentators, I think a reconstruction which posits a justificatory asymmetry should be of interest. The reconstruction I want to propose is meant to be revisionary: I think that while Kant got a great deal right about the building blocks of his theory of freedom, he never fits them together in a stable way in his own texts. So this reconstruction does not describe the theory of freedom I think he actually held himself, but rather the one I think he ought to have held, and one which can be defended in contemporary discussions about free will.

Traditional criminal law theories provide little account of third-party interests injured from punishment of offenders. We define offenses, and the necessity for prosecution, by the culpability and harm caused by criminal conduct, and set the overarching goals of criminal law - deterrence, retribution, or some mixture of the two - as guides for when and how much to punish. Despite that commitment, the practice of criminal law sometimes explicitly accommodates concerns for punishment’s collateral consequences to third parties. Third-party interests now appear in both prosecutorial charging guidelines and judicial sentencing decisions as rationales for leniency.
This intermittent concern for collateral harms poses practical problems of defining which third-party interests. It also leads to treating like cases differently. We accommodate third-party interests by moderating prosecution and punishment, but we do so haphazardly and unevenly across the spectrum of criminal practice.
Conceptually, mitigation of collateral consequences calls into question both the descriptive accuracy and the prescriptive utility of dominant theories of criminal law, deontological retributivism and deterrence-oriented utilitarianism. Our practical concern for third-party interests signals the necessity of criminal law paying attention to its broader social consequences. Mitigating third-party interests is likely necessary at times to maintain the legitimacy of criminal law, even as conflicting commitments to distributive fairness, retributive justice and crime prevention sometimes necessitate punishment. This essay explores the problems of third-party interests and describes some implications for criminal justice of downgrading the primacy of retributivism and deterrence in order to view criminal law more as a pragmatic, administrative process that accommodates multiple, conflicting policy interests.

Philosophers of punishment spent much of the 20 th century refining and adapting wellestablished theories of punishment in hopes of finding a way to combine the utilitarian goals of punishment with the ethical demands of justice. Victor Tadros' latest book The Ends of Harm addresses that same challenge, but answers it with an entirely new rationale for punishment based on the duties criminals acquire by committing their crimes. Eric Blumenson's critique presents four arguments against Tadros' "Duty View" of punishment, targeting (1) its methodology, (2) certain steps in Tadros' argument, (3) the disproportionate punishments it demands, and (4) Tadros' dismissal of the retributivist alternative. Victor Tadros then responds to these arguments in an essay following Blumenson's critique.

In analyzing Cesare Beccaria's theory of punishment, this article emphasizes that, while he clearly endorsed a proto-utilitarian theory of punishment strongly at odds with positive retributivism, he also accepted some elements of negative retributivism. This fact, however, should not be seen as weakness of Beccaria's view, but as another proof of his genius. As a matter of fact, he acutely understood that a purely utilitarian conception of punishment, not mitigated by negative retributivism, may indeed generate deep injustices – a lesson that we should remember today, when many scholars interpret the huge amount of data coming from the neurosciences as a proof that a utilitarian theory of punishment recommends itself.

To defend the idea of everlasting punishment in hell, some philosophers of religion have suggested that hell's punishment lasts forever because the damned continue to sin forever. This suggestion raises a further question: Why would a being keep sinning forever? In this paper, I examine Thomas Aquinas's attempt to explain why demons keep sinning forever. According to Aquinas, demons cannot stop sinning because they cannot revise the judgment that caused them to sin. At the end of the paper, I argue that if we accept retributivism, then we have good reasons to think creatures such as Aquinas's demons would deserve everlasting punishment.

A continuación propongo poner en debate, a partir del uso de fuentes judiciales en sentido amplio (expedientes, textos doctrinarios y jurisprudenciales) y discusiones contemporáneas de filosofía del derecho, algunas cuestiones en torno a la función y las razones del castigo en los delitos sexuales (delitos contra la honestidad, en la época).

According to empirical desert theory, good utilitarian grounds exist for distributing criminal punishment pursuant to the (retributive) intuitions of the lay community on criminal liability. This theory’s insights, based on original empirical research and informed by social science, have significantly influenced contemporary criminal law theory. Yet, ostensibly, the theory is hampered by serious limitations, which may have obstructed its progress and its potential to guide criminal justice reform. Chief among them: it draws from community intuitions, and community intuitions—as the theory acknowledges—are sometimes immoral. In addition to these “immorality objections,” (commonly illustrated by alluding to the antebellum South and Nazi Germany), critics have alleged, inter alia, that the theory is self-defeating, uses incongruous justifications, and engages in deceptive and exploitative practices.

This Article argues that these critiques are misplaced and overstated and that empirical desert theory can be safely relied on in criminal justice—and beyond. Despite the captivating historical illustrations and the intuitive appeal of immorality objections, this Article demonstrates that empirical desert theory is nearly immune to them, by virtue of previously underappreciated features of its scientific methodology. Moreover, empirical desert theory can do even better.

This Article presents an innovative proposal to reconceptualize empirical desert theory by incorporating into its scientific methodology a minimalistic normative commitment to equality and non-discrimination. It provides theoretical support and specific parameters for this reconceptualization, which imbues the theory with qualities capable of further safeguarding it from immorality objections. Furthermore, the Article explores ten additional criticisms of the theory, seriatim, and demonstrates that the proposed reconceptualization substantially strengthens the theory’s ability to overcome them. In its conclusion, the Article outlines two future paths for the theory’s application beyond criminal law, discussing the possibility to “export” its insights to international humanitarian law and its potential to reframe the interaction between criminal law theory and philosophy.

This chapter has two goals. First, I will present an interpretation of Kant’s mature account of punishment, which includes a strong commitment to retributivism. Second, I will sketch a non-retributive, “ideal abolitionist” alternative, which appeals to a version of original position deliberation in which we choose the principles of punishment on the assumption that we are as likely to end up among the punished as we are to end up among those protected by the institution of punishment. This is radical relative to Kant’s mature theory of punishment, but arguably it conforms better to the spirit of Kant’s first Critique remarks on imputation and punishment than his mature theory does.

Philosophers of punishment spent much of the 20 th century refining and adapting wellestablished theories of punishment in hopes of finding a way to combine the utilitarian goals of punishment with the ethical demands of justice. Victor Tadros' latest book The Ends of Harm addresses that same challenge, but answers it with an entirely new rationale for punishment based on the duties criminals acquire by committing their crimes. Eric Blumenson's critique presents four arguments against Tadros' "Duty View" of punishment, targeting (1) its methodology, (2) certain steps in Tadros' argument, (3) the disproportionate punishments it demands, and (4) Tadros' dismissal of the retributivist alternative. Victor Tadros then responds to these arguments in an essay following Blumenson's critique.

The argument between retributivists and consequentialists about what morally justifies the punishment of offenders is incoherent. If we were to discover that all of the contending justifications were mistaken, there is no realistic prospect that this would lead us to abandon legal punishment. Justification of words, beliefs and deeds can only be intelligible on the assumption that if a justification were found to be invalid and there were no alternative justification, one would be prepared to stop saying, believing or doing what one has attempted to justify. Therefore, the moral standing or basis of our practices of punishing offenders cannot rest on a justification of it.

The “classic debate”1 between retributive and utilitarian theories of punishment has dominated discussions of punishment since Jeremy Bentham's time (if not Plato's). “Intractable” may best characterize that debate. In this paper I will argue that hope of resolving the impasse ...

There is a deep tension between liberalism and retributivism. On the face of it, one cannot coherently believe liberalism about the fundamental purpose of the state and retributivism about the basic end of legal punishment, given widely held and well-motivated or what I call ‘standard’ conceptions of these views. My aims in this article are to differentiate the types of conflict between liberalism and retributivism, to identify the strongest and most problematic type of conflict between them, to demonstrate that existing strategies in the literature that might be invoked to resolve this conflict fail, and to present a new, conclusive way to resolve it. The solution lies in changing the standard conception of liberalism, which change, I argue, is warranted on independent grounds. Liberalism, up to now, has been conceived in a way that fails to best capture liberal intuitions. Upon improving our understanding of what liberal purposes essentially are, it becomes clear that retributive punishment is not merely logically consistent with them, but also partially constitutive of them.

Professor John Stinneford follows his initial article concerning the original meaning of the Eighth Amendment with an excellent article in the Virginia Law Review, Rethinking Proportionality Under the Cruel and Unusual Punishments Clause. In this latest piece, Stinneford argues that the original meaning of the Eighth Amendment’s Cruel and Unusual Punishments Clause includes not only a prohibition against barbaric punishments (defined as ones without “long usage”), but also against excessive or “disproportionate” punishments. Stinneford then advocates rethinking the Supreme Court’s Eighth Amendment evolving standards of decency jurisprudence to center the “cruel” inquiry on whether the punishment at issue is “proportionate,” in a retributive sense, in light of prior punishment practices.

In this brief Response, I raise two possible objections to Stinneford’s analysis. First, Stinneford insists that proportionality must be solely a retributive concept for Eighth Amendment purposes, both as a matter of original interpretation and sound application. While retribution is certainly part of the “proportionality” analysis, I believe that utilitarian justifications of punishment are also relevant to the concept of proportionality. As explained below, this is true both as a matter of original interpretation and perhaps more importantly as a reasonable basis for the Court’s current application of the Eighth Amendment.

Second, I question whether, if one adopts Stinneford’s model of Eighth Amendment retributive proportionality, application of the Eighth Amendment would achieve the purposes he advocates. Spe-cifically, I am not persuaded that limiting the application of the Eighth Amendment to the question of retributive proportionality would improve the much-criticized application of the Eighth Amendment in capital cases. Further, I am not convinced that the retributive model of proportionality Stinneford advocates would effectively bridge the gap between the two-tiered application of the Eighth Amendment in capital and non-capital cases.

This essay focuses on the reconciliatory facet of the Eucharist, highlighting its transformative and restorative character. In so doing, it seeks to show how the Eucharist can shape our perception and practices with regard to penitence and retributive justice, two controversial aspects of reconciliation. The essay proceeds in three sections. The first section focuses on how acknowledgment of our need for reconciliation shapes our identity, showing us not only who we are as sinners, but also who we are called to be as a reconciled people. The second section examines practices of penitence in the Church’s history to show how these practices of penitence contribute to the practice of what I shall call Eucharistic reconciliation. The third and final section will examine both ecclesial and secular practices of punishment in the light of the practice of Eucharistic reconciliation, and in doing so seek to show how punishment—properly understood and applied—can be understood to be a part of the practice of Eucharistic reconciliation.

My goal in this article is to put Kant’s retributivism in the context of his practical philosophy as a whole with specific reference to the concepts of honor, dignity, and the summum bonum (highest good). Although my ambition is great my expectations are more modest. I am hoping only that the reader, once progressing through this essay is able to appreciate the depth and breadth of Kant’s practical philosophy and how his retributive theory of punishment is but one inseparable strand of a tightly woven tapestry. There is much more to Kant’s account of punishment than a cursory glance, or even focused reading, of the often cited passages provides. If one remains only with these passages one may be proffered an account of what retribution is, namely, giving to a criminal punishment proportionate to the heinousness of his crime merely because he deserves it. One may even get a glimpse into how Kant calculates desert, namely, proportionality in relation to respect and dignity. But what would be lacking is an understanding of why it is necessary to punish criminals merely because they deserve it. This is a problem for Kant specifically, but also retributive theories of punishment generally. If an answer cannot be offered, then retribution will look no different than revenge. This article contextualizes Kant’ retributivism with specific reference to the ultimate good and the role honor and dignity play in securing this. Kant’s retributivism can thus be understood as a necessary response to his practical philosophy as a whole. A general lesson that might be learned from this account is also that retributive accounts of punishment are inseparable from specific kinds of natural law and natural right types of theories.

The problem addressed in this paper is of the crucial difference between justice and revenge. Following the vivid images of revenge and justice present in literature, I argue that revenge is rooted in a reactive, backward-looking spirit which is destructive for both individuals and the community. Justice, on the other hand, is rooted in an active, forward-looking spirit which is constructive and aimed at restoring order. I analyze the different functions of punishment which are based on payback and are thus focused on the balance of power and status which is more typical for revenge than justice. Punishment should be based on a normative balance rooted in norms and values, and which is aimed at promoting accountability. Anger transformed by justice should be focused on wrongdoing (the act), rather than the wrongdoer (person). Justice in its highest degree, when complemented by mercy, becomes ' justice as generosity' which is able to restore trust in social relations, fostering solidarity and reconciliation in society.