Retributivism

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.

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.

Harming other people is prima facie wrong. Unless we can be very certain that doing so is justified under the circumstances, we ought not to do it. In this paper, I argue that we ought to dismantle harsh retributivist criminal justice systems for this reason; we cannot be sufficiently certain that the harm is justified. Gregg Caruso, Ben Vilhauer and others have previously argued for the same conclusion; however, my own version sidesteps certain controversial premises of theirs.
Harsh retributivist criminal justice can only be morally right if the following three propositions are true: Moral responsibility exists, retributivism is right, and we can find out how much punishment offenders deserve for their crimes. Suppose that we initially assign a high credence to each of the three propositions; I assume for the sake of argument that there are good arguments in support of each. Nevertheless, these arguments ultimately depend on intuitions. Since we have philosophical peers whose intuitions differ from ours, we ought to downgrade our credence in each. However, even slightly less credence in each proposition means far less credence in a conjunction of all three. Since the stakes are high and there are morally safer options for a criminal justice system, we ought to dismantle harsh retributivist ones.

Much of the recent philosophical discussion about free will has been focused on whether compatibilists can adequately defend how a determined agent could exercise the type of free will that would enable the agent to be morally responsible in what has been called the basic desert sense (see, e.g., Pereboom in Living without free will, Cambridge University Press, New York, 2001; Pereboom in Free will, agency, and meaning in life, Oxford University Press, Oxford, 2014; Strawson in Freedom and belief, Oxford University Press, Oxford, 1986; Strawson in Philos Stud 75(1):5–24, 1994; Fischer in Four views on free will, Wiley, Hoboken, 2007; Vargas in Four views on free will, Wiley, Hoboken, 2007; Vargas in Philos Stud, 144(1):45–62, 2009). While we agree with Derk Pereboom and others that the compatibilist’s burden should be properly understood as providing a compelling account of how a determined agent could be morally responsible in the basic desert sense, the exact nature of this burden has been rendered somewhat unclear by the fact that there has been no definitive account given as to what the basic desert sense of moral responsibility amounts to. In Sect. 1 we set out to clarify the compatibilist’s burden by presenting our account of basic desert moral responsibility—which we call retributivist desert moral responsibility for purposes of clarity—and explain why it is of central philosophical and practical importance to the free will debate. In Sect. 2 we employ a thought experiment to illustrate the kind of difficulty that compatibilists of any stripe are likely to encounter in attempting to explain how determined agents can exercise the kind of free will needed for retributivist desert moral responsibility.

When does a defendant not deserve punishment because he is unaware that his conduct breaches a penal statute? Retributivists must radically rethink their answer to this question to do justice to our moral intuitions. I suggest that modest progress on this topic can be made by modeling our approach to ignorance of law on our familiar approach to ignorance of fact. We need to distinguish different levels of culpability in given mistakes and to differentiate what such mistakes may be about. I discuss the advantages and disadvantages of this approach with special attention to how to contrast offenses from defenses. The alternative I tend to favor probably should not be implemented in existing penal codes. As a result, we are likely to remain dissatisfied with the decisions made by our criminal justice system about the exculpatory effect of ignorance of law.

One of the most frequently voiced criticisms of free will skepticism is that it is unable to adequately deal with criminal behavior and that the responses it would permit as justified are insufficient for acceptable social policy. This concern is fueled by two factors. The first is that one of the most prominent justifications for punishing criminals, retributivism, is incompatible with free will skepticism. The second concern is that alternative justifications that are not ruled out by the skeptical view per se face significant independent moral objections (Pereboom 2014, 153). Yet despite these concerns, I maintain that free will skepticism leaves intact other ways to respond to criminal behavior—in particular preventive detention, rehabilitation, and alteration of relevant social conditions—and that these methods are both morally justifiable and sufficient for good social policy. The position I defend is similar to Derk Pereboom’s (2001, 2013, 2014), taking as its starting point his quarantine analogy, but it sets out to develop the quarantine model within a broader justificatory framework drawn from public health ethics. The resulting model—which I call the public health-quarantine model—provides a framework for justifying quarantine and criminal sanctions that is more humane than retributivism and preferable to other non-retributive alternatives. It also provides a broader approach to criminal behavior than Pereboom’s quarantine analogy does on its own.

What is the clean hands defense (CHD) normatively about? Courts designate court integrity as the CHD’s primary norm. Yet, while the CHD may at times further court integrity it is not fully aligned with court integrity. In addition to occasionally instrumentally furthering certain goods (e.g., court legitimacy, judge integrity, deterrence), the CHD embodies two judicially undetected norms: retribution and tu quoque (“you too!”). Tu quoque captures the moral intuition that wrongdoers are in no position to blame, condemn, or make claims on others who are guilty of similar or related wrongdoing. The CHD shares the structure of the tu quoque: both are doctrines of standing that deflate the illocutionary force (and not the truth-value) of normative speech acts directed against wrongdoers by those guilty of similar/connected wrongdoing. The CHD also exhibits retributive logic: it sanctions plaintiffs by reason of their wrongdoing and manifests the retributive principle that “punishment must fit the crime.”


A LINK TO THE PAPER APPEARS BELOW UNDER "Scholarship at Cornell"


Copyright © Cambridge University Press 2011, at http://journals.cambridge.org/action/displayJournal?jid=LEG

Este trabajo examina varias teorías de la justicia intergeneracional y sus implicaciones en el ámbito práctico de los sistemas de pensiones. En este contexto, la sostenibilidad del sistema parece estar comprometida a causa de las proyecciones demográficas. Este hecho tiene una incuestionable relevancia para el futuro de este importante servicio público y el compromiso intergeneracional que implica. En este sentido, si un sistema de pensiones quiere ser justo tiene que mirar en tres direcciones: pensionistas, trabajadores y futuras generaciones. Así, una teoría liberal-igualitaria se vuelve necesaria para compartir los riesgos de shocks demográficos y financieros entre las distintas generaciones y para reducir la desigualdad tanto como sea posible.

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:

This paper deals with the question of prison inmates’ right to privacy from an ethical perspective. It is argued that the right to privacy is important because of its connection to moral agency, and that the importance of privacy is justified from different established philosophical theories about the justification of legal punishment. The practical implications of this argument are discussed by ad-dressing two potential problems. First, how much privacy should be allowed during imprisonment in order to meet the criteria of respecting inmates as moral agents? Second, how should the conflict be-tween privacy and other rights, including the rights of the public and the prison staff as well as those of the prison inmates, be handled? Consequently, it is argued that from an ethical perspective, the invasion of privacy should be minimized to the greatest extent possible without compromising other important values and rights to safety and security. In defending this position, it is argued that respect for inmates’ privacy should be part of the objective of creating and upholding a secure environment with better effect in the long run.

This article identifies two mistakes commonly made about the concept of punishment. First, confusion exists about when an analysis of punishment counts as retributive, and when as justificatorily neutral. In particular, a fair number of legal scholars claim to analyze punishment in a neutral way, but closer inspection shows that many of these definitions are not justificatorily neutral. Second, legal scholars tend to analyze the concept of punishment very restrictively, with a focus on the intention of the legislator. While there may be good reasons to restrict the scope of the concept of punishment in the legal arena, from a philosophical point of view, restrictive analysis is not fruitful. It is a bad starting point for critical evaluation, because it is perfectly possible for impositions generally experienced as punitive not to be classified as such. This is all the more troublesome given that these impositions often contain fewer safeguards than are offered in criminal law and that there is sometimes a taboo on the language game related to punishment. I argue that these problems can be overcome by embracing an inclusive, justificatorily neutral concept of punishment that takes the outward appearance of the harm inflicted as its starting point.

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

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 purely retributive moral justification of punishment has a gap at its centre. It fails to explain why the offender should not be protected from punishment by the intuitively powerful moral idea that afflicting another person (other than to avoid a greater harm) is always wrong. Attempts to close the gap have taken several different forms, and only one is discussed in this paper. This is the attempt to push aside the 'protecting' intuition, using some more powerful intuition specially invoked by the situations to which criminal justice is addressed. In one aspect of his complex defence of pure retributivism, Michael S. Moore attempts to show that the emotions of well-adjusted persons provide evidence of moral facts which justify the affliction of culpable wrongdoers in retribution for their wrongdoing. In particular, he appeals to the evidential significance of emotions aroused by especially heinous crimes, including the punishment-seeking guilt of the offender who truly confronts the reality of his immoral act. The paper argues that Moore fails to vindicate this appeal to moral realism, and thus to show that intrinsic personal moral desert (as distinct from 'desert' in a more restricted sense, relative to morally justified institutions) is a necessary and sufficient basis for punishment. Other theories of the role of emotions in morality are as defensible as Moore's, while the compelling emotions to which he appeals to clinch his argument can be convincingly situated within a non-retributivist framework, especially when the distinction between the intuitions of the lawless world, and those of the world of law, is recognised. Keywords Justification of punishment Á Retributive theory Á Moral significance of emotions Á Desert Á Resentment Á Guilt I The purely retributive moral justification of punishment—the view that offenders should be punished because they deserve it, and that this moral desert is both a necessary and a

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.

This paper challenges recent influential arguments which would encourage legislators and courts to give weight to an assessment of the " evaluative judgements " expressed by the emotions which motivate crimes. While accepting the claim of Kahan and Nussbaum and others that emotions, other than moods, have intentional objects (" the cognitive conception "), and are not mere impulses which bypass cognition (" the mechanistic conception "), it suggests the following criticisms of their analysis. First, the concept of an emotional " evaluative judgement " tends to elide the distinction between (misleadingly named) " judgements " that are merely the sense of an emotion, and do not have the character of acts, and deliberative emotional judgements that do resemble acts and so properly fall within the corrective scope of the law. Second, intentional emotions are empowered by pre-intentional psychological resources which are less amenable than intentional states to the agent's conscious supervision: The traditional recognition of " infirmity " in mitigation of crimes uncharacteristic of the criminal's overall conduct towards others is justified by the unpredictable action of these pre-intentional elements and can survive the abandonment of the mechanistic conception of emotion.

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.

Adam Smith says relatively little about justice and punishment in the Theory of Moral Sentiments. What he does say reveals that Smith viewed morality as dynamic, almost economic exchange.  Exposing the transactional nature of his theory of morality not only the operation of sympathy and moral judgment, but allows us to see a much closer link between the Theory of Moral Sentiments and the Wealth of Nations. Much remains to be said about this, as about his theory of justice. However, I do believe that to view Smith's moral theory from an "economic" perspective as a system of "sympathetic exchange" enables a more fruitful and cohesive account to be given of all aspects of his work, moral, economic and jurisprudential.

In contrast to the vast literature on retributive theories of punishment, discussions of private revenge are rare in moral philosophy. This article reviews some examples, from both classical and recent writers, finding uncertainty and equivocation over the ethical significance of acts of revenge, and in particular over their possible resemblances, in motive, purpose or justification, to acts of lawful punishment. A key problem for the coherence of our ethical conception of revenge is the consideration that certain acts of revenge may be just (at least in the minimal sense that the victim of revenge has no grounds for complaint against the revenger) and yet be generally agreed to be morally wrong. The challenge of explaining adequately why private revenge is morally wrong poses particular difficulty for purely retributive theories of punishment, since without invoking consequentialist reasons it does not seem possible adequately to motivate an objection to just and proportionate acts of revenge.

Steven Tudor defends the mitigation of criminal sentences in cases in which offenders are genuinely remorseful for their crimes. More than this, he takes the principle that such remorse-based sentence reductions are appropriate to be a 'well-settled legal principle'-so well settled, in fact, that 'it is among those deep-seated commitments which can serve to test general theories as much as they are tested by them'. However, his account of why remorse should reduce punishment is strongly philosophical in character. He sets to one side the many practical difficulties in implementing such reductions in the real world of criminal justice institutions so that he can focus on the question of whether a plausible account of sentencing can show that remorse should mitigate punishment. I contend that Tudor's defense of such reductions is unpersuasive in certain respects. Yet even if it can be made more persuasive, I argue that the conditions that would have to be satisfied for remorse-based sentence reductions to be justifiably implemented are so many and various that they would likely exceed our abilities to responsibly grant them in real world legal contexts. I therefore claim that Tudor has failed to provide a defense of the 'remorse principle' that serves to explain or justify existing legal practices. Keywords Remorse Á Sentence reductions Á Sentencing Steven Tudor defends the mitigation of criminal sentences in cases in which offenders are genuinely remorseful for their crimes. More than this, he takes the principle that such remorse-based sentence reductions are appropriate to be a 'well-settled legal principle'(Tudor 2008, p. 1)-so well settled, in fact, that 'it is among those deep-seated commitments which can serve to test general theories as much as they are tested by them' (Tudor 2008, p. 2, his emphasis). As evidence for this second claim, Tudor cites the fact I am grateful to two anonymous reviewers for helpful comments on an earlier draft of this paper.

Our characters are formed, at least in part, by forces beyond our control. Should this lead us to mitigate the responsibility of those who turn out badly? Martha Nussbaum argues that we ought to be merciful to wrongdoers on these grounds. Against Nussbaum, I argue that we have important moral reasons to treat people as responsible for character and hence to eschew mercy. Treating someone as responsible is required if we are to treat them as a moral agent, to treat them as having a moral point of view that is worth hearing. However my point is not that there are no reasons for mercy, but simply that there are other reasons, to do with respect, that pull in the opposite direction. The result is not a decision procedure for all cases but a better understanding of the complex moral geography.

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.

Conflicts between relative and absolute proportionality are an important puzzle facing retributivist thought. The question of how those conflicts should be handled has long been neglected. Relative proportionality refers to the ideal that punishments should be comparatively fair between offenders. Absolute proportionality refers to the ideal that punishments should be fitting, that is, be neither too harsh nor too lenient. The two senses of proportionality contribute independently to the ideal of proportionality. Thus, it is not plausible to resolve conflicts between them by dropping one of them. Instead, the two senses of proportionality must be weighed. Recent literature about comparative and non-comparative desert provides some guidance as to how the two types of proportionality should be weighed. If the two types of proportionality are of roughly equal moral weight, then our greater ability reliably to satisfy relative proportionality gives us some reason to give priority to relative proportionality. Talk of retributive justice in punishment draws on two quite different values: the idea that punishments should be arrayed so that offenders get the right relative amount of punishment and get what they deserve in an absolute sense. These values reflect two different senses of proportionality, which I refer to as relative and absolute proportionality. While the distinction between them is pretty well understood, we know much less about how to handle conflicts between them. My broad ambition in this essay is to discuss this issue. More specifically, I consider situations in which we face a choice between greater absolute proportionality and greater relative proportionality. Such situations present a problem for retributivism the difficulty of which is yet to be fully appreciated. I defend three claims. First, absolute and relative proportionality contribute independently to the ideal of proportionality in punishment. Some retributivists might be tempted to deny the value of one of the two types of proportionality, but doing so is ultimately implausible. Second, this means that, to resolve situations in which the two types of proportionality come into conflict, retributivists must figure out how to weigh absolute and relative proportionality. However, third, figuring this out is very difficult. Before I begin, I want to make a couple of preliminary points about the scope of the paper. First, I confine myself to a retributivist account of proportionality, that is, one that holds that proportionality is about making penal severity a function of criminal seriousness. I recognize that there might be other ways of thinking about proportionality, but I set them to one side here.1 I explore retributivist proportionality 'from within.' Second, I simply assume 1 In general, these approaches either mean something else than the retributivist by proportionality (Bentham 1988) or justify retributivist proportionality on non-retributivist grounds (Rachels 1997).

Few defences of retribution in criminal justice make a plausible case for the view that punishment plays a necessary role in restoring relations between offenders, victims and the community. Even fewer defences of retribution make a plausible appeal to the interpersonal practice of apologizing as a symbolically adequate model for criminal justice. This review article considers Christopher Bennett's engaging defence of an apology ritual in criminal justice, an account of justifiable punishment that draws from the best of retributive and restorative justice theory.

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.

Punishment is punishment even if it is not (perceived by the punisher to be) deserved. But punishment which is not (perceived by the punisher to be) fitting is not punishment. This paper explores the differences between desert and fittingness, and argues that incorporating fittingness into the definition of punishment is not problematic, whereas incorporating desert in such definition is, in contrast, infamously problematic. The main difference between these two notions turns on the interesting differences between two types of normativity. Fittingness is exclusively concerned with aesthetic normativity, whereas desert is more directly concerned with moral normativity. When something is fitting, then it is, to an extent, intrinsically good, and, to an extent, it is also beautiful. The notion of fittingness has largely been ignored in discussions of punishment, yet it helps us better to understand the phenomenon of punishment, and in particular the thorny relationship between this phenomenon and desert.

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.

Critics charge that retributivists fail to show why the state should concern itself with ensuring that criminal offenders are punished in accordance with their ill deserts. Drawing on the notion that the state should attempt to equalize the realization of the interests designated by rights, it is argued that legal punishment restores the equality of condition, disrupted by criminal conduct, that all citizens are entitled to. While this equality of condition might be restored in various ways, it is argued that the imposition of punitive losses is the most appropriate way to restore it in most cases. An account of the ill deserts of offenders, as a function of the harms their crimes produce and the extent of their culpability for those harms, is briefly elaborated.

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.

This paper criticizes four major approaches to criminal law – consequentialism, retributivism, abolitionism, and “mixed” pluralism – each of which, in its own fashion, affirms the celebrated emblem of the “scales of justice.” The argument is that there is a better way of dealing with the tensions that often arise between the various legal purposes than by balancing them against each other. For we should aim to genuinely reconcile them instead.

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.

I aim to answer the questions of whether reactive practices such as gratitude and punishment are inherently expressive, and, if so, in what respect. I distinguish seven ways in which one might plausibly characterise reactive practices as essentially expressive in nature, and organise them so that they progress in a dialectical order, from weakest to strongest. I then critically discuss objections that apply to the strongest conception, questioning whether it co-heres with standard retributive understandings of why, when and where the reactive practice of punishment is justified.

English abstract (article in Norwegian, published in Norsk Filosofisk Tidsskrift, vol 50, no 3-4, 2016, DOI: 10.18261/issn.1504-2901-2016-03-04-03):

The Right to be Punished: On Kant and Hegel's theories of punishment as respect for the criminal

The article discusses Kant and Hegel's theories of punishment in light of their broader legal philosophies. The purpose of punishment, and law in general, is to secure mutual freedom and mutual recognition. Punishment is a way of expressing respect for the freedom of the criminal, as well as the freedom of victims and all members of society. Though it might seem odd that imprisoning somebody means respecting their freedom, Hegel famously insists that punishment is a right for the criminal. The article explains how punishment may respect mutual freedom, and defends the claim that this is a necessary condition for just punishment. However, the purpose of re-establishing mutual freedom may possibly be achieved by other methods than punishment. The article discusses the potential of restorative justice processes for expressing the kind of mutual recognition that Hegel ascribes to punishment. Punishment is therefore not necessary for achieving the just purpose that Kant and Hegel ascribe to it. We may thus accept the Kantian-Hegelian framework for the just sanctioning of crime while challenging their more controversial claim that punishment is a categorical imperative.

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...

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.

Mainstream law-and-economics has long struggled with the explicitly moral nature of crime, lacking the conceptual tools to deal with concepts such as wrong, blame, and guilt. In their utilitarian framework, economists portray individuals as rational utility-maximizers with no concern for ethics and no emotional qualms, and policymakers as concerned only with efficient deterrence rather than punishing wrongdoers and holding them accountable for their actions. In this chapter, I explain why retributivism, which demands punishment as a matter of justice, is more consistent with human dignity than is deterrence, and how it renders both positive and normative aspects of the economics of crime irrelevant. Instead, retributivism bases criminal enforcement and punishment on principles of justice, while restoring economics to a more traditional role of providing advice based on resource allocation, opportunity costs, and trade-offs, to help legislators and judges balance the principles and goals most important to legal decisions.

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.

Measures aimed at general deterrence are often thought to be problematic on the basis that they violate the Kantian prohibition against sacrificing the interests of some as a means of securing a greater good. But even if this looks like a weak objection because deterrence can be justified as a form of societal self-defence, such measures may be regarded as problematic for another reason: Harming in self-defence is only justified when it's necessary, i.e., when there are no relatively harmless alternatives. While there are few harmless ways to remove the threat posed by dangerous individuals, there are many relatively harmless methods for preventing crime. We can bracket off our preventative failings when we think of present threats, but we cannot do so when contemplating alternative preventative measures.

Why do we punish? And are we justified in punishing an offender?These questions, traditionally pertaining to philosophical thinking (moral philosophy and philosophy of law), are nowadays characterized by many scientific aspects and concern neuroscience as well. Recent neuroscien-tific findings related to brain mechanisms that are deemed responsible for various types of behaviour, including that of criminals, have intro-duced a deterministic perspective on human decision-making.

Gregg Caruso’s Rejecting Retributivism is a well-written compendium of arguments against retributivism and in favor of a public-health model for dealing with potential criminality. Nevertheless, I still think, even after reading Caruso, that there is an important place for punishment, based on the retributive notions of culpability and deserved blame, in our criminal justice system.
I proceed in three parts. First, I point out where his views about our potential to have the kind of free will necessary for basic desert of blame are weakest: his response to compatibilism. Second, I argue that his argument against retributivism proves too much: it radically and implausibly rules out holding people responsible in any meaningful way. Third, I argue that he operates with a misguided conception of the basis for blame. I offer a better one that works well with compatibilism.

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.