The article discusses retributive justice and punitive restraint in response to the worst types of crime. I take the Breivik Case as a starting point. Anders Behring Breivik was sentenced to 21 years of preventive detention for killing 69 people, mainly youths, at Utøya and 8 people in Oslo on July 22nd, 2011. Retributivist theories as well as commonly held retributive intuitions suggest that much harsher punishment is required for such crimes. According to some retributivist theories, most (...) notably on the influential theories of Kant and Hegel, the death penalty is warranted for murderers like Breivik. This suggests that the rationale for punitive restraint in a case like the Breivik Case can only be found in forward- looking, consequentialist theories of punishment, or by adding to retributivist theories a side-constraint in the form of a principle of parsimony. However, I argue that if we look closer at the function of punishment in the retributivist theories of Kant and Hegel, they too imply a rationale for punitive restraint, even for such horrific crimes as here discussed. Against Kant and Hegel’s own views on the death penalty, I argue that their broader “freedom theories” of retributive justice do not imply the justice of the death penalty or life imprisonment. In the last part of the article, I explore differences in the concepts of freedom entailed by Kant and Hegel’s theories, and I relate these to some of the background factors relevant to the Breivik Case. (shrink)

Within the United States, the most prominent justification for criminal punishment is retributivism. This retributivist justification for punishment maintains that punishment of a wrongdoer is justified for the reason that she deserves something bad to happen to her just because she has knowingly done wrong—this could include pain, deprivation, or death. For the retributivist, it is the basic desert attached to the criminal’s immoral action alone that provides the justification for punishment. This means that the retributivist position is (...) not reducible to consequentialist considerations nor in justifying punishment does it appeal to wider goods such as the safety of society or the moral improvement of those being punished. A number of sentencing guidelines in the U.S. have adopted desert as their distributive principle, and it is increasingly given deference in the “purposes” section of state criminal codes, where it can be the guiding principle in the interpretation and application of the code’s provisions. Indeed, the American Law Institute recently revised the Model Penal Code so as to set desert as the official dominate principle for sentencing. And courts have identified desert as the guiding principle in a variety of contexts, as with the Supreme Court’s enthroning retributivism as the “primary justification for the death penalty.” 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 the first section, I explore the retributivist justification of punishment and explain why it is inconsistent with free will skepticism. In the second section, 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 criminal punishment. I conclude in the third section 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. 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. (shrink)

Thom Brooks criticizes utilitarian and retributive theories of punishment but argues that utilitarian and retributive goals can be incorporated into a coherent and unified theory of punitive restoration, according to which punishment is a means of reintegrating criminals into society and restoring rights. I point to some difficulties with Brooks’ criticisms of retributive and utilitarian theories, and argue that his theory of punitive restoration is not unified or coherent. I argue further that a theory attempting (...) to capture the complex set of rules and behaviors that constitute the practice of legal punishment cannot persuasively be unified and coherent: legitimate features of the practice advance goals and promote values that in some cases conflict. (shrink)

In fairy tales, villains usually come to a bad end, snared in a trap of their own making, or visited with a disaster nicely suited to their particular villainy. Read a story of this kind to children and you will be struck by the profound satisfaction with which this predictable of events is greeted. Yet, if children cheer when the villain is done in, they are just as satisfied when the hero manages to get the villain by the throat but (...) takes pity and spares him. These tales of retribution and mercy, even reduced to their barest bones, seem to have an intrinsic significance; they strike some inner chord, resonate with something fundamental in our inarticulate understanding of the world, reveal something about the basic make-up of the world. This is not to suggest that they are 'realistic' in the ordinary sense. They do not tell us what 'really happens' in the world of experience, where the villain all too often flourishes and the innocent are trampled underfoot. Rather, fairy tales reveal to us the injustice of the human world by testifying to the true nature of justice. If we did not know that villains ought to get their comeuppance, we would have no reason to think it wrong that they often escape to enjoy their spoils. Tales of retribution and mercy speak of the reality of a world beyond the world of everyday experience; so doing, they show the world of experience in its true light. In the best sense of the word, they are 'myths': stories that, even when told in their simplest form, carry a profound inner significance. (shrink)

How can we know whether we are punishing the same corporation that committed some past crime? Though central to corporate criminal justice, legal theorists and philosophers have yet to address the basic question of how corporate identity persists through time. Simple cases, where crime and punishment are close in time and the corporation has changed little, can mislead us into thinking an answer is always easy to come by. The issue becomes more complicated when corporate criminals undergo any (...) number of transformations—rebranding, spinning-off a division, merging, changing ownership, changing management, swapping lines of business, etc. These changes are common among all corporations, including those trying to conceal or limit liability for past crimes. This article takes a first step toward developing a workable and philosophically satisfying theory of corporate personal identity and discusses its prospects for fulfilling the retributive, rehabilitative, and deterrent purposes of criminal law. (shrink)

English title: 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. (shrink)

We are living through an era of increased robotisation. Some authors have already begun to explore the impact of this robotisation on legal rules and practice. In doing so, many highlight potential liability gaps that might arise through robot misbehaviour. Although these gaps are interesting and socially significant, they do not exhaust the possible gaps that might be created by increased robotisation. In this article, I make the case for one of those alternative gaps: the retribution gap. This gap (...) arises from a mismatch between the human desire for retribution and the absence of appropriate subjects of retributive blame. I argue for the potential existence of this gap in an era of increased robotisation; suggest that it is much harder to plug this gap than it is to plug those thus far explored in the literature; and then highlight three important social implications of this gap. (shrink)

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. (shrink)

This book is the first comprehensive study of the meaning and measure of enforceability. While we have long debated what restraints should govern the conduct of our social life, we have paid relatively little attention to the question of what it means to make a restraint enforceable. Focusing on the enforceability of legal rights but also addressing the enforceability of moral rights and social conventions, Mark Reiff explains how we use punishment and compensation to make restraints operative in the (...) world. After describing the various means by which restraints may be enforced, Reiff explains how the sufficiency of enforcement can be measured, and he presents a unified theory of deterrence, retribution, and compensation that shows how these aspects of enforceability are interconnected. Reiff then applies his theory of enforceability to illuminate a variety of real-world problem situations. (shrink)

There are a number of important links and similarities between public health and safety. In this extended essay, Gregg D. Caruso defends and expands his public health-quarantine model, which is a non-retributive alternative for addressing criminal behavior that draws on the public health framework and prioritizes prevention and social justice. In developing his account, he explores the relationship between public health and safety, focusing on how social inequalities and systemic injustices affect health outcomes and crime rates, how poverty (...) affects brain development, how offenders often have pre-existing medical conditions (especially mental health issues), how involvement in the criminal justice system itself can lead to or worsen health and cognitive problems, how treatment and rehabilitation methods can best be employed to reduce recidivism and reintegrate offenders back into society, and how a public health approach could be successfully applied within the criminal justice system. Caruso's approach draws on research from the health sciences, social sciences, public policy, law, psychiatry, medical ethics, neuroscience, and philosophy, and he delivers a set of ethically defensible and practically workable proposals for implementing the public health-quarantine model. The essay begins by discussing recent empirical findings in psychology, neuroscience, and the social sciences that provide us with an increased understanding of the social and neurological determinants of health and criminal behavior. It then turns to Caruso's public health-quarantine model and argues that the model provides the most justified, humane, and effective approach for addressing criminal behavior. Caruso concludes by proposing a capability approach to social justice grounded in six key features of human well-being. He argues that we cannot successfully address concerns over public health and safety without simultaneously addressing issues of social justice—including the social determinants of health (SDH) and the social determinants of criminal behavior (SDCB)—and he recommends eight general policy proposals consistent with his model. (shrink)

Within the United States, the most prominent justification for criminal punishment is retributivism. This retributivist justification for punishment maintains that punishment of a wrongdoer is justified for the reason that she deserves something bad to happen to her just because she has knowingly done wrong—this could include pain, deprivation, or death. For the retributivist, it is the basic desert attached to the criminal’s immoral action alone that provides the justification for punishment. This means that the retributivist position is (...) not reducible to consequentialist considerations nor in justifying punishment does it appeal to wider goods such as the safety of society or the moral improvement of those being punished. A number of sentencing guidelines in the U.S. have adopted desert as their distributive principle, and it is increasingly given deference in the “purposes” section of state criminal codes, where it can be the guiding principle in the interpretation and application of the code’s provisions. Indeed, the American Law Institute recently revised the Model Penal Code so as to set desert as the official dominate principle for sentencing. And courts have identified desert as the guiding principle in a variety of contexts, as with the Supreme Court’s enthroning retributivism as the “primary justification for the death penalty.” 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 the first section, I explore the retributivist justification of punishment and explain why it is inconsistent with free will skepticism. In the second section, 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 criminal punishment. I conclude in the third section 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. 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. (shrink)

A man, carrying a gun in his waistband, robs a food vendor. In making his escape, the gun discharges, critically injuring the robber. About such instances, it is common to think, “he got what he deserved.” This Article seeks to explore cases like that—cases of “natural punishment.” Natural punishment occurs when a wrongdoer faces serious harm that results from her wrongdoing and not from anyone seeking retribution against her. The Article proposes that U.S. courts follow their peers and recognize natural (...) punishment as genuine punishment for legal, specifically constitutional, purposes. Were U.S. courts to do so, they would need to reduce the amount of punishment they would otherwise bestow on wrongdoers upon conviction if a natural punishment has occurred or foreseeably will occur. A handful of foreign jurisdictions already accept something like this Article’s proposal, but natural punishment has no formal legal recognition in the United States. The goal of this Article is twofold: first, it offers a rigorous and defensible definition of natural punishment by distinguishing it from nearby notions and dispelling any association with supernatural ideas; second, it demonstrates that recognizing natural punishment as genuine punishment will not much disturb existing American legal institutions and understandings. -/- As an added bonus, the concept of natural punishment can be employed to solve a longstanding problem in criminal law theory, the Mystery of Credit for Time Served. The Mystery surrounds the common practice of giving prisoners credit toward their prison sentences for their time served in jail awaiting trial. The Mystery poses a dilemma about whether the detention time was punishment: If it was punishment, then the detainee was punished before trial in violation of Due Process; however, if the time was not punishment, there is no reason to discount the prison sentence. Seeing the time in detention as an instance of natural punishment resolves the Mystery. (shrink)

The first part of this paper surveys five perspectives in Kant’s philosophy on the quantity of retribution to be inflicted on wrongdoers, ordered by two dimensions of difference – whether they are theoretical or practical perspectives, and the quantity of retribution they prescribe: (1) theoretical zero, the perspective of theoretical philosophy; (2) practical infinity, the perspective of God and conscience; (3) practical equality, the perspective of punishment in public law; (4) practical degrees, the perspective we adopt in private relations to (...) others and (5) practical zero, a perspective I argue is entailed by Kant’s doctrine of strict right, which is his justification of coercing compliance with public law. Kant acknowledges 1–4 but not 5. The second part draws on Kant’s account of the burden of proof in criminal law to argue that Kant is wrong to adopt 3 in responding to criminals, and that we ought to adopt 5 instead. (shrink)

This paper examines the role of the consensual model in law and argues that if substantive justice is to be the goal of law, the use of individual choice as a legal criterion for distributive and retributive purposes must be curtailed and made subject to substantive considerations. Substantive justice arguably requires that human rights to life, well-being, and the commodities essential to life and well-being, be given priority whenever a societal decision is made. If substantive justice is a (...) collective societal responsibility, the individual cannot be justly rewarded or punished for his or her choices with respect to life, well-being and essential commodities insofar as these choices are justified or excused by standards of substantive justice. Societal conditions and institutional arrangements should be recognized as grounds for justification and excuse because they may impose limits and constraints on the choices available to an individual that are as unavoidable and compelling as those imposed by chance or by another human being. (shrink)

Retributivists are often thought to give 'deontological' theories of punishment, arguing that we should punish not for the beneficial consequences of doing so such as deterrence or incapacitation, but purely because justice demands it. Kant is often regarded as the paradigmatic retributivist. In some passages Kant does appear to give a deontological theory of punishment. For example, Kant insists that on an island where all the people were to leave the next day, forever dissolving and dispersing the community, the last (...) murderer in jail would have to have his execution carried out before the diaspora--justice demands it. In other passages, however, Kant defends punishment by appealing to its beneficial consequences. For example, after supposing that one man on a life raft pushes the other off to save his own life, Kant says that the former man should not be legally punished "because that punishment would have to be death, and it would be an absurd law that threatened death to one who refuses to die voluntarily in a dangerous situation." In this passage Kant's reasoning is that state laws, by threatening us with sanctions, are intended to prevent us from violating rights--the point of these laws is to deter. A law that imposes a punishment that could not deter is an absurd law. I argue that while Kant rejects consequentialism in thinking about moral actions, he distinguishes law and morality, and in the sphere of law, an action we take is to be justified by appealing to the good it yields. The point of legal punishment is to deter violations of rights and protect us from a state of nature in which no one's freedom is assured. Kant's theory of legal (as opposed to moral) punishment is not deontological. Nevertheless we can characterize his consequentialist theory of legal punishment as retributive in some sense. The paper then considers how the passages about punishment in which Kant invokes consequentialist thinking can be reconciled with other passages where he insists on punishment regardless of the consequences. (shrink)

Incarceration remains the foremost form of sentence for serious crimes in Western democracies. At the same time, the management of prisons and of the prison population has become a major real-world challenge, with growing concerns about overcrowding, the offenders’ well-being, and the failure of achieving the distal desideratum of reduced criminality, all of which have a moral dimension. In no small part motivated by these practical problems, the focus of the present article is on the ethical framework that we use (...) in thinking about and administering criminal justice. I start with an analysis of imprisonment and its permissibility as a punitive tool of justice. In particular, I present a novel argument against punitive imprisonment, showing it to fall short in meeting two key criteria of just punishment, namely (i) that the appropriate individual is being punished, and (ii) that the punishment can be adequately moderated to reflect the seriousness of the crime. The principles I argue for and that the aforementioned analysis brings to the fore, rooted in the sentient experience, firstly of victims, and not only of victims but also of the offenders as well as the society at large, then lead me to elucidate the broader framework of jurisprudence that I then apply more widely. Hence, while rejecting punitive imprisonment, I use its identified shortcomings to argue for the reinstitution of forms of punishment that are, incongruently, presently not seen as permissible, such as corporal punishment and punishments dismissed on the basis of being seen as humiliating. I also present a novel view of capital punishment, which, in contradiction to its name, I reject for punitive aims, but which I argue is permissible on compassionate grounds. (shrink)

From a juridical standpoint, Kant ardently upholds the state's right to impose the death penalty in accordance with the law of retribution. At the same time, from an ethical standpoint, Kant maintains a strict proscription against suicide. The author proposes that this latter position is inconsistent with and undercuts the former. However, Kant's division between external (juridical) and internal (moral) lawgiving is an obstacle to any argument against Kant's endorsement of capital punishment based on his own disapprobation of suicide. Nevertheless, (...) Kant's basic conception of autonomy underlies both of these otherwise distinct forms of lawgiving, such that acts of suicide and capital punishment are rendered equally irrational within his overall framework. (shrink)

Précis of Rejecting Retributivism: Free Will, Punishment, and Criminal Justice (2022).

Hegel experienced several personal, political, and professional crises during his life. These crises impacted his dense theory about the importance of rational self-reflection in the organic character and evolution of law. The article argues that Hegel’s Preface to the Philosophy of Right manifests how one philosopher came to terms with the personal, social and political crises in which he found himself. In particular, the article outlines the central themes of the Preface and then explicates the important notion of (...) Bildung in Hegel’s theory – an Enlightenment notion that Hegel absorbed from his own formal education. After retrieving Hegel’s reading of the virtues and flaws in Kant’s theory of law, the article then explicates Hegel’s understanding of freedom. The article then reviews the local politics in which Hegel found himself before, during and after Napoleon’s defeat. The article then turns to his professional rivalries with Jacob Fries and Friedrich Savigny. The article argues that the personal animosities shaped parts of his Preface. These complex influences and concerns explain why Hegel waited 20 years to publish his theory of law. Hegel’s Preface comes to terms with the crises of his own times. (shrink)

Punishment involves the intentional infliction of harm and suffering. Both of the most prominent families of justifications of punishment – retributivism and consequentialism – face several moral concerns that are hard to overcome. Moreover, the effectiveness of current criminal punishment methods in ensuring society’s safety is seriously undermined by empirical research. Thus, it appears to be a moral imperative for a modern and humane society to seek alternative means of administering justice. The special issue of Diametros “The Abolition of (...) Punishment: Is a Non-Punitive Criminal Justice System Ethically Justified?” was brought into life precisely to give the authors a platform for such progressive inquiries. And it is now safe to say that this platform has been put to excellent use, since Valerij Zisman, Alexander Stachurski, Giorgia Brucato, Perica Jovchevski, Sofia M. I. Jeppsson, Stephen G. Morris, Benjamin Vilhauer, John Lemos, Saul Smilansky, Elizabeth Shaw, Mirko Farina, Andrea Lavazza and Sergei Levin have presented such thought-provoking texts that they are bound to set the stage for debate in the years to come. This article is an introduction to this special issue and to the authors’ papers. (shrink)

Should we use the same standard of proof to adjudicate guilt for murder and petty theft? Why not tailor the standard of proof to the crime? These relatively neglected questions cut to the heart of central issues in the philosophy of law. This paper scrutinises whether we ought to use the same standard for all criminal cases, in contrast with a flexible approach that uses different standards for different crimes. I reject consequentialist arguments for a radically flexible standard of (...) proof, instead defending a modestly flexible approach on non-consequentialist grounds. The system I defend is one on which we should impose a higher standard of proof for crimes that attract more severe punishments. This proposal, although apparently revisionary, accords with a plausible theory concerning the epistemology of legal judgments and the role they play in society. (shrink)

In this article, I consider the possibilities and limitations for testimonial justice in an international criminal courtroom. I begin by exploring the relationship between epistemology and criminal law, and consider how testimony contributes to the goals of truth and justice. I then assess the susceptibility of international criminal courts to the two harms of testimonial injustice: epistemic harm to the speaker, and harm to the truth-seeking process. I conclude that international criminal courtrooms are particularly susceptible to (...) perpetrating testimonial injustice. Hearers in the international criminal courtroom should practice testimonial justice, but the institution is not structured in a way that can prevent every instance of testimonial injustice. (shrink)

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

Arthur Kaufmann is one of the most prominent figures among the contemporary philosophers of law in German speaking countries. For many years he was a director of the Institute of Philosophy of Law and Computer Sciences for Law at the University in Munich. Presently, he is a retired professor of this university. Rare in the contemporary legal thought, Arthur Kaufmann's philosophy of law is one with the highest ambitions — it aspires to pinpoint the ultimate foundations of law by (...) explicitly proposing an ontology, a general theory of knowledge and concept of a person. Kaufmann's work derives, first of all, from the thinking of Gustav Radburch, his teacher, and then from ideas of Karl Engish and Hans-Georg Gadamer. The philosophy undertakes to pursue the ultimate foundation of law, law which is understood by Kaufmann, first of all, as a "concrete judgement" that is, what is right in a concrete situation. Justice belongs to the essence of law and "unjust law" is contradictio in adiectio. Kaufmann opposes all those theories, which as the only foundation for establishing just law (Recht) adopt legal norms (Gesetz). In Kaufmann's opinion , such theories are powerless in the face of all types of distortions of law rendered by political forces. He suggests that the basic phenomenon which needs to be explained and which cannot be disregarded by a philosopher of law is so-called "legal lawlessness" ("Gestzliches Unrecht"). "Legal lawlessness" which forms a part of life experience for the people of twentieth century totalitarian states. It proved "with the accuracy of scientific experiment" that the reality of law consists of something more than bare conformity with legal norms. The existence of lex corrupta indicates that law contains something "non-dispositive" which requires acknowledgment of both law-maker and judge. Kaufmann, accepting the convergent concept of truth and cognition, assumes that "non-dispositive" content, emerging as the conformity of a number of cognitive acts of different subjects (inter-subjective communicativeness and verifiability), indicates the presence of being in this cognition. The questions "What is law?" and "What are the principles of a just solution?" lead straight to the ontology of law, to the question about the ontological foundations of law. Kaufmann discerns the ontological foundations of law in the specifically understood "nature of things" and, ultimately, in a "person". He proposes a procedural theory of justice, founded on a "person". In my work, I undertake to reconstruct the train of thought which led Kaufmann to the recognition of a "person" as the ontological foundation of law. In the first part, the conception of philosophy adopted by Kaufmann, initial characteristics of law — of reality which is the subject of analysis, as well as, the requirements for proper philosophical explanation of law posed by Kaufmann are introduced. In the second, Kaufmann's reconstruction of the process of the realisation of law is presented. Next, the conception of analogy which Kaufmann uses when explaining law is analyzed. In the fourth part, Kaufmann's conception of ontological foundations of law is discussed. A critical analysis is carried out in which I demonstrate that the theory of the ontological foundation of law proposed by Kaufmann and the concept of a person included in it do not allow a satisfac¬tory explanation of the phenomenon of "legal lawlessness" and lead to a number of difficulties in the philosophical explanation of law. Finally, the perspectives of a proper formulation of the issue of the ontological foundations of law are drafted in the context of the analyzed theory. My interest is centered on the conception of philosophy adopted by Kaufmann, according to which the existence of the reality is inferred on the basis of a certain configuration of the content of consciousness, whereas at the point of departure of philosophy of law, the data to be explained is a certain process, which is, basically, a process of cognition, while the reality appears only as a condition for the possibility of the occurrence of the process. I wish to argue that the difficulties which appear in the explanation of law are a consequence of the assumed fundamental philosophical solu¬tions, which seem to be characteristic, though usually not assumed explicitly, in philoso¬phy and theory of law dominant at present in continental Europe. Thereby, I wish to show the significance of ontological and epistemological solutions to the possibility of a proper formulation of the problems posed by philosophy and theory of law. Kaufmann proclaims himself in favour of a philosophy which poses questions about the ultimate foundations of understanding of the reality. In epistemology, he assumes that answers to the questions "What is reality like?" and ultimately "What is real?" are inferred on the basis of uniformity of a cognitive acts of different subjects. Cognition of the reality is accomplished exclusively through the content of conceptual material. The two fundamental questions posed by philosophy of law are "What is just law?" and "How is the just law enacted?" The latter is a question about the process of achieving a solution to a concrete case. Since, in Kaufmann's opinion, law does not exist apart from the process of its realisation, an answer to the question about the manner of realisation of law is of fundamental significance to answering the question: "What is law?" and to the explanation of the question about the ontological grounding of law, which is, as well, the foundation of justice. The proper solution has to take into account the moment of "non-dispositive" content of law; its positiveness understood as the reality and, at the same time, it has to point to the principles of the historical transformation of the content. Law, in the primary meaning of the word, always pertains, in Kaufmann's opinion, to a concrete case. A legal norm is solely the "possibility" of law and the entirely real law is ipsa res iusta, that which is just in a given situation. Determination of what is just takes place in a certain type of process performed by a judge (or by man confronted with a choice). Kaufmann aims to reconstruct this process. A question about the ontological foundation of law is a question about the ontological foundations of this process. In the analyzed theory it is formulated as a question about the transcendental conditions, necessary for the possibility of the occurrence of the process: how the reality should be thought to make possible the reconstructed process of the realisation of law. Kaufmann rejects the model for finding a concrete solution based on simple subsump¬tion and proposes a model in which concrete law ensues, based on inference by analogy, through the process of "bringing to conformity" that which is normative with that which is factual. Kaufmann distinguishes three levels in the process of the realisation of law. On the highest level, there are the fundamental legal principles, on the second legal norms, on the third — concrete solutions. The fundamental principles of law are general inasmuch as they cannot be "applied" directly to concrete conditions of life, however, they play an important part in establishing norms. A judge encounters a concrete situation and a system of legal norms. A life situation and norms are situated on inherently different levels of factuality and normativeness. In order to acquire a definite law both a norm (system of norms) and a life situation (Lebenssachverhalt) should undergo a kind of "treatment" which would allow a mutual conformity to be brought to them. Legal norms and definite conditions of life come together in the process of analogical inference in which the "factual state" ("Tatbestand") — which represents a norm, and in the "state of things" ("Sachverhalt") — which represents a specific situation are constructed. A "factual state" is a sense interpreted from a norm with respect to specific conditions of life. The "state of things" is a sense constructed on the basis of concrete conditions of life with respect to norms (system of norms). Legal norms and concrete conditions of life meet in one common sense established during the process of realisation of law. Mutatis mutandis the same refers to the process of composition of legal norms: as the acquisition of concrete law consists in a mutual "synchronization" of norms and concrete conditions of life, so acquisition of legal norms consists of bringing to conformity fundamental principles and possible conditions of life. According to Kaufmann, both of these processes are based on inference through analogy. As this inference is the heart of these processes it is simultaneously a foundation finding just law and justice. How does Kaufmann understand such an inference? As the basis for all justice he assumes a specifically interpreted distributive justice grounded on proportionality. Equality of relations is required between life conditions and their normative qualification. Concrete conditions of life are ascribed normative qualification not through simple application of a general norm. More likely, when we look for a solution we go from one concrete normative qualified case to another, through already known "applications" of norms to a new "application". The relation between life conditions and their normative qualifica¬tion has to be proportional to other, earlier or possible (thought of) assignments of that which is factual to that which is normative. Law as a whole does not consist of a set of norms, but only of a unity of relations. Since law is a, based on proportion, relative unity of a norm and conditions of life, in order to explain law in philosophical manner, the question about ontological base of this unity has to be asked. What is it that makes the relation between a norm and conditions of life "non-dispositive"? What is the basis for such an interpretation of a norm and case which makes it possible to bring a norm and conditions of life into mutual "conformity"? This is a question about a third thing (next to norms and conditions of life), with respect to which the relative identity between a norm and conditions of life occurs, about the intermediary between that which is normative and that which is factual and which provides for the process of establishing of norms, as well as, finding solutions. It is the "sense" in which the idea of law or legal norm and conditions of life have to be identical to be brought to mutual "conformity". In Kaufmann's opinion such a sense is nothing else but the "nature of things" which determines the normative qualification of the reality. Since establishment of this "sense" appears to be "non-dispositive" and controlled inter-subjectively (namely, other subjects will reach a similar result) so, in conformity with the convergent concept of truth, the "nature of things" must be assigned a certain ontological status. According to Kaufmann this is a real relation which occurs between being and obligation, between the conditions of life and normative quality. However, it should be underlined that from the point of view of the analyzed system the "nature of things" is a correlate of constructed sense, a result of a construction which is based on the principle of consistent understanding of senses ("non-normative" and "normative") and is not a reality which is transcendent against the arrangement of senses. In Kaufmann's theory, inference from analogy appears to be a process of reshaping the concepts (senses) governed by tendency to understand the contents appearing in relations between that which is factual and that which is normative in a consistent way. The analogical structure of language (concepts) and recognition of being as composed of an essence and existence is an indispensable requirement for the possibility of the realisation of law, based on specifically understood inference from analogy. It is necessary to assume a moment of existence without content which ensures unity of cognition. Existence emerges thus as a condition of the possibility of cognition. According to Kaufmann, the "nature of things" is the heart of inference through analogy and the basis for establishment of finding of law. Inference from the "state of things" to a norm or from a norm to the "state of things" always means inference through the "nature of things". The "nature of things" is the proper medium of objective legal sense sought in every cognition of law. In Kaufmann's view, the question whether the "nature of things" is ultima ratio of interpretation of law or is only a means of supplement gaps in law or whether it is one of the sources of law, is posed wrongly. The "nature of things" serves neither to supplement the gaps nor is it a source of law as, for example, a legal norm may be. It is a certain kind of "catalyst" necessary in every act of making law and solving a concrete case. Owing to "nature of things" it is possible to bring to a mutual conformity the idea of law and possible conditions of life or legal norms and concrete conditions of life. In Kaufmann's conception the "nature of things" is not yet the ultimate basis for understanding the "non-dispositiveness" of law. The relation between obligation and being is determined in the process of the realisation of law. Both the process itself and that which is transformed in this process are given. A question about the ontological bases of "material" contents undergoing "treatment" in the process of the realisation of law and about being which is the basis of regularity of the occurrence of the process arises. Only this will allow an explanation that the result of the process is not optional. Thus, a question about reality to which law refers and about the subject realising the law has to be formed. To this, Kaufmann gives the following answer: that which is missing is man but not "empirical man" but man as a "person". A "person" understood as a set of relations between man and other people and things. A "person" is the intermediary between those things which are different — norm and case are brought to conformity. A "person" is that which is given and permanent in the process of the realisation of law. It determines the content of law, is "subject" of law; this aspect is described by Kaufmann as the "what" of the process of realisation of law. A "person" consists of precisely just these relations which undergo "treatment" in the process. On the other hand, a "person" is "a place" in which the processes of realisation of law occur, it is the "how" of normative discourse, a "person" is that which determines the procedure of the process, being "outside" of it. This aspect of a "person" is connected with the formal moment of law. A "person" being, at the same time, the "how" and the "what" of the process of the realisation of law, is also, to put it differently, a structural unity of relation and that which constitutes this relation (unity of relatio and relata). According to this approach a "person" is neither an object nor a subject. It exists only "in between". It is not substance. Law is the relation between being and obligation. That which is obligatory is connected with that which is general. That which is general does not exist on its own, it is not completely real. Accordingly, a "person" as such is also not real. It is relational, dynamic and historical. A "person" is not a state but an event. In Kaufmann's opinion, such a concept of a "person" helps to avoid the difficulties connected with the fungibility of law in classical legal positivism. A "person" is that which is given, which is not at free disposal and secures the moment of "non-dispositiveness" of law. Kaufmann concludes: "The idea (»nature«) of law is either the idea of a personal man or is nothing". Theory points at the structure of realising law and explains the process of adoption of general legal norms for a concrete situation. The analysis has shown however, that in this theory a satisfactory answer to the question about the ultimate foundations of law is not given. It seems that in the analyzed theory the understanding of human being takes place through understanding of law. What is good for man as a "person", what is just, what a "person" deserves may be determined only against the existing system of law. A "per¬son" adopted as a basis of law is the reality postulated in the analysis of the process of the realisation of law. It is a condition of possibility of this process ( explaining, on one hand, its unity and, on the other hand, the non-dispositive moments stated in this process). A "person" in the discussed theory is entirely defined by the structure of law, it can be nothing more than that which is given in law, what law refers to, what law is about. Being, which is a "person", is constituted by relations between people and objects, the relations which are based on fundamental links between norms and conditions of life established in a process of bringing them to conformity. It has to be assumed that man as a "person" is a subject of law only as far as realising law "treats" given senses according to their current configuration. The system of law is a starting point and it describes in content what man is as a "person". Moreover, being a "person" is the condition for entering legal relations. Consistently, Kaufmann writes that "empirical man" is not the subject of law, man is not "out of nature" a "person". People become "persons" due to the fact that they acknowledge each other as "persons" — acknowledging, at the same time, law. This acknowledgement is a con¬dition of existence, of the possibility of the occurrence of process of realisation of law and of constituting legal relations which ultimately constitute a "person". Kaufmann assumes, that law tends towards a moral aim: it may and must create an external freedom, without which the internal freedom to fulfil moral obligations cannot develop. However, this postulate is not based on the necessary structure of human being. From the point of view of his system, it is nothing more than only a condition for the possibility of the occurrence of the process of the realisation of law — lack of freedom would destroy the "how" of this process. Thus, the postulate to protect the freedom of personal acts has to be interpreted, in accordance with the analyzed theory, as a postulate, the fulfilment of which aims ultimately at the accomplishment of the very same process of realisation of law itself and not the realisation of a given man. Kaufmann considers a "person" to be an element which unites the system of law as a whole. Law is a structure of relations, which are interdependent and inter-contingent. Consequently, a "person" which is to form the ontological basis of law has to be entity consisting of all relations. Being also the "how" of the process of realisation of law, if a "person" is to warrant its unity, it has to be a common source for all procedures. Hence, a single "person" would constitute a subject of law. Man appears to be only a moment of a certain entirety, realisation of which should be an aim of his actions. Law, creating a "person" as an object and subject of law becomes a primary entity. In the analyzed theory, the basis for determination of aims which law sets to man is not the allocation of man-subject to something which improves him but rather, such relation is only just constituted by law. A question appears, why should aims set in law also be the aims of "empirical man"? Why is this "empirical man" to be punished in the name of a "person" understood in such a way? If, however, it is assumed that what is man is determined by a system which is superior to him, then man has to be understood only as a part of a whole and there are no grounds to prohibit istrumental treatment of man and so the road to all aspects of totalitarianism might be opened. A problem of the application of created theory to the reality arises, the reality which the theory pretends to explain. Ultimately in his theory Kaufmann does not give any systemic grounds for a radical questioning of the validity of any legal norms. Every new norm becomes an equal part of system of norms. It is only its interpretation and application to given conditions of life that may be disputable, however, this refers to all norms without exception. Cohesive inter-pretation of norms and applications is necessary and sufficient for the acquisition of just law. New norms have to be interpreted in the light of others, correspondingly, the other norms require reinterpretation in the light of the new ones. Contradiction in interpretation of a norm does not form a basis for questioning norms but may serve only to question the manner of their interpretation (understanding). Therefore, no grounds exist to assume any legal norm as criminal or unjust, and in consequence, to question any consistently realised system based on formally, properly established norms, as "legal lawlessness". As law and a "person" do not exist without the process of realisation of law, the role of legal safety becomes crucial as the condition for the possibility of the occurrence of the process of realisation of law. Denying legal safety would be tantamount to negation of law in general (also of moral law) as negation of safety takes away, at the same time, the basis for occurrence of the process of realisation of law. Moreover, any lack of legal safety would also mean lack of a basis for the existence of man as a "person". Kaufmann's thesis, that civil disobedience is legalized only when it has a chance to lead to success, consistent with his concept of the foundations of law, seems to point directly to conclusions which deny the facts taken under consideration and doubtlessly Kaufmann's own intentions, since it would have to be assumed that accordingly there are no grounds to question a legal system in force based on violence which secures its operation. Force finally seems to determine which one of the mutually irreconcilable normative systems constitute law and which does not. A legitimate position is one which leads to success, it is the weaker system which is negated. If so, then basically violent imposition of law is not an act directed against the law in force but, to the contrary, realisation of law. In the context of the new system the former system of law may be talked about as unjust solely in the sense of being incapable of being consistently united with the new. However, at the base, ultimately, lies force which reaffirms differences and excludes from the process of realisation of law certain norms and their interpretations. Kaufmann was aiming at grounding of that which is "non-dispositive" in a certain given framework of interpretation. Nevertheless, he does not provide foundations for the understanding of phenomena, which he undertakes to explain at a point of departure. Instead of explaining them the theory negates the possibility of their existence. The reality postulated in regard to "non-dispositive" moments of the reconstructed process of acquiring law consist of a specifically understood "person", which appears in Kaufmann's conceptions as a condition of the possibility of the realisation of law. According to this approach understanding of a "person" may be only a function of law. To understand "legal lawlessness" and foundations of justice it is necessary to look for such theory of law in which understanding of man as a "person" and being is not a function of understanding of law (in which a "person" is not only a condition for possibility of reconstructed process of realisation of law; for possibility of cognition processes). It seems necessary to start from theory of being and a "person" based on broader experience than the one assumed by Kaufmann and reconstruct the ontological foundations of the process of realisation of law only in such perspective. Kaufmann points out that that to which law refers is ipsa res iusta a concrete relation of man to other people and things. This relation, in his theory, appears to be basically only just constituted by law (normative senses "applied" to conditions of life). Therefore, understanding the relation between a given man and other people and things which constitute the aim of his actions, that is understanding of good, is enacted against the background of constitution of senses; constitution which is a result of a process aiming towards consistent understanding of particular contents (of nor¬mative and non-normative senses). "Being" is secondary towards constructed senses it is only their correlate. The primary relation consists of relation of a man to law (system of norms), while the secondary relation is one of man to something which is the aim of his action (relation between man and good). Considering such approach it is difficult to envision a satisfying answer to the fundamental question: why does law put concrete man under any obligation to obey it? The source of this problem can be seen in reduction of the base for understanding good to content of obligation formulated in auto-reflection. Such reduction seems to be a consequence of Kaufmann's adoption of "convergent concept of truth" and in con¬sequence his recognition of indirect, essentialistic grasp of reality formulated in concepts as the basic and only foundation of theory of being and of law. In view of such an approach, analogy of law, concepts and being is the condition for the possibility of the process of transformation of senses which aims at consistent interpretation of all law. Existence is postulated with respect to the possibility of unity of experience and cognition. However, also a different approach to understanding of the problem of being and good is possible. In spontaneous cognition being is affirmed, first of all, not as a certain, non-contradictory, determined content, but as something existing. Together with a cer¬tain content (passed indirectly through notions) existence of being is co-given. The basis for unity of being is not formed by the consistence of content, as it is in the case of the theories departing from the analysis of cognition processes, but by an act of existence realising content (essence). Such an approach makes it also possible to go beyond the convergent concept of truth. It is worth mentioning that allocation of an agent to good is realised not only by the content of duty. A statement that something is good is primary with respect to determination of this good in content. The recognised good always bears some content, however, there are no reasons to base the concept of good exclusively on indirect, formulated in concepts cognition. As primary, can be adopted the relation of man to good and not of man to law. Determination in content appears to be only an articulation of aspectual cognition of being, as an object of action. In such a case the basis for relative unity of norm and conditions of life is not the "nature of things" understood as correlate of sense but it is relation to good based on internal constitution of man as potential, not self-sufficient being. It does not mean, that the moments of the process of realisation of law singled out by Kaufmann are not important to determination of what is just. He, quite rightly, points to significant role played by norms in the evaluation of concrete situations, in man's search for closer specification in content of good innate to him. The structure of process of determining law for a concrete situation, to a great degree corresponds to the processes of determining law which take place not only in the legal sciences. Kaufmann's analyses of the process of realisation of law show the complexity of the structure of these processes and point towards important moments allowing a better understanding of law and man. Nevertheless, these analyses cannot be a basis for construction of philosophical theory of law, theory which hopes to point out the ultimate, ontological foundations for understanding law. Kaufmann's results may become fully valid only in a more general perspective including broader experience at the point of departure. (shrink)

Capital punishment—the legally authorized killing of a criminal offender by an agent of the state for the commission of a crime—stands in special need of moral justification. This is because execution is a particularly severe punishment. Execution is different in kind from monetary and custodial penalties in an obvious way: execution causes the death of an offender. While fines and incarceration set back some of one’s interests, death eliminates the possibility of setting and pursuing ends. While fines and incarceration (...) narrow one’s routes to happiness, death eliminates its possibility. Not surprisingly, there is much debate about the moral permissibility of capital punishment. This entry maps the terrain of this debate. The first section discusses justifications of the death penalty as they appear in major theories of punishment. The second section surveys moral objections to execution that apply to most justifications. The third addresses procedural criticisms, which do not target the morality of execution so much as the justice of its implementation. (shrink)

Should we use the same standard of proof to adjudicate guilt for murder and petty theft? Why not tailor the standard of proof to the crime? These relatively neglected questions cut to the heart of central issues in the philosophy of law. This paper scrutinises whether we ought to use the same standard for all criminal cases, in contrast with a flexible approach that uses different standards for different crimes. I reject consequentialist arguments for a radically flexible standard of (...) proof, instead defending a modestly flexible approach on non-consequentialist grounds. The system I defend is one on which we should impose a higher standard of proof for crimes that attract more severe punishments. This proposal, although apparently revisionary, accords with a plausible theory concerning the epistemology of legal judgments and the role they play in society. (shrink)

Strawson's view on punishment has been either neglected or recoiled from in contemporary scholarship on ‘Freedom and Resentment’ (FR). Strawson's alleged retributivism has made his view suspect and troublesome. In this article, we first argue, against the mainstream, that the punishment passage is an indispensable part of the main argument in FR (section 1) and elucidate in what sense Strawson can be called ‘a retributivist’ (section 2). We then elaborate our own hypothesis of symbolic retribution to explain the continuum between (...) moral reactive attitudes and punishment that Strawson only adumbrates (section 3). After this justification of the punitive response to wrongdoing, we compare and contrast our specific kind of retributivist hypothesis with other positions in the so-called ‘new retributivism’ (section 4). Our hypothesis differs from other subvarieties of expressive retributivism in putting centre stage the idea of punishment as taking up a reverential stance towards the victim. (shrink)

The purpose of this paper is to provide a justification of punishment which can be endorsed by free will skeptics, and which can also be defended against the "using persons as mere means" objection. Free will skeptics must reject retributivism, that is, the view that punishment is just because criminals deserve to suffer based on their actions. Retributivists often claim that theirs is the only justification on which punishment is constrained by desert, and suppose that non-retributive justifications must therefore (...) endorse treating the people punished as mere means to social ends. Retributivists typically presuppose a monolithic conception of desert: they assume that action-based desert is the only kind of desert. But there are also personhood-based desert claims, that is, desert claims which depend not on facts about our actions, but instead on the more abstract fact that we are persons. Since personhood-based desert claims do not depend on facts about our actions, they do not depend on moral responsibility, so free will skeptics can appeal to them just as well as retributivists. What people deserve based on the mere fact of their personhood is to be treated as they would rationally consent to be treated if all they had in view was the mere fact of their personhood. We can work out the implications of this view for punishment by developing a hypothetical consent justification in which we select principles of punishment in the Rawlsian original position, so long as we are careful not to smuggle in the retributivist assumption that it is under our control whether we end up as criminals or as law-abiding citizens once we raise the veil of ignorance. (shrink)

Adherents to reconciliation, restorative justice, and related approaches to dealing with social conflict are well known for seeking to minimize punishment, in favor of offenders hearing out victims, making an apology, and effecting compensation for wrongful harm as well as victims forgiving offenders and accepting their reintegration into society. In contrast, I maintain that social reconciliation and similar concepts in fact characteristically require punishment but do not require forgiveness. I argue that a reconciliatory response to crime that includes punitive (...) disavowal but not necessarily forgiveness is supported by an analogy with resolving two-person conflict and by relational facets of human dignity. I also specify a novel account of the type of penalty that is justified by reconciliation, namely, burdensome labor that is likely to foster moral reform on the part of wrongdoers and to compensate their victims, which would serve neither retributive nor deterrent functions. I illustrate this conception of punishment in contexts that include having cheated on an exam at a university, engaged in criminal behavior such as robbery, and committed atrocities during large-scale social conflict. (shrink)

H. L. A. Hart’s (1907-1992) influence on contemporary philosophy is not restricted to the philosophy of law. As the book’s sub-title suggests and the table of contents confirm, he wrote widely on matters social, political and moral, not just legal. Probably best known for The Concept of Law (1961), Hart also authored a collection of essays on Jeremy Bentham (Essays on Bentham,1982), two books on the morality of criminal law based on his exchange with Lord Patrick Devlin (Law, (...) Liberty and Morality, 1963) and The Morality of the Criminal Law, 1965), one on punishment (Punishment and Responsibility, 1968), a treatise as well as a collection of essays on jurisprudential theory (Definition and Theory in Jurisprudence, 1953, and Essays in Jurisprudence and Philosophy, 1983), and finally a volume on legal causation, co-authored with Tony Honoré (Causation in the Law, 1959). The book under review here, on Hart’s legacy, is divided into six sections: the first is devoted to Hart’s general jurisprudential theory; the second to his writings on criminal law; the third to legal causation; the fourth to concerns of justice; the fifth to legal, political and moral rights; and the sixth and final section to matters of toleration and liberalism. (shrink)

Published on Daily Philosophy 2021-10-18 Why do we have a criminal justice system? What could possibly justify the state punishing its citizens? Philosophers, scholars of law, politicians and others have proposed different justifications, one of them being retributivism: the view that we ought to give offenders the suffering that they deserve for harming others. However, intentionally harming other people and making them suffer is serious business. If we are to do this in the name of what’s right and good, (...) we better be very certain that what we do really is right and good. The so-called Epistemic Argument Against Retributivism calls this certainty into question. (shrink)

"An eye for an eye will make the whole world blind." This quote, often attributed to Gandhi, suggests the illegitimacy of the retributive urge. On the other hand, many feel a strong intuitive sense that "justice must be served" and that violators of justice must be fittingly punished. In this paper I examine the urge for retributive justice and argue that, at its base, it is rooted in a profound desire to have a wrongdoer see the nature of (...) his or her wrongdoing, with the ultimate aim of inducing the repentance and reformation needed for a genuine healing of relationship. In this way, the urge for retributive justice may be seen as having, as its true end, the restoration of wholesome relations between wrongdoer and wronged. (shrink)

I propose a theory of punishment that is unfamiliar in the West, according to which the state normally ought to have offenders reform their characters and compensate their victims in ways the offenders find burdensome, thereby disavowing the crime and tending to foster improved relationships between offenders, their victims, and the broader society. I begin by indicating how this theory draws on under-appreciated ideas about reconciliation from the Global South, and especially sub-Saharan Africa, and is distinct from the protection and (...) retribution theories that have dominated the Western philosophy of punishment for about 250 years. Then I argue that it neatly avoids objections to them and is prima facie plausible in its own right. I conclude that this reconciliation theory of state punishment should be taken seriously by philosophers of law and policy makers. (shrink)

What is cruelty? How and why does it matter? What do the legal rejection of cruelty and the requirements of mercy entail? This essay asks these questions of Lucius Seneca, who first articulated an agent-based conception of cruelty in the context of punishment. The hypothesis is submitted that the answers to these questions offered in Seneca's De clementia constitute one of the turning points in the evolution of practical reason in law. I conclude, however, by arguing that even the (...) mainstream punitive practices of contemporary western societies fail to meet the modest imperatives of the rejection of cruelty and the unconditionality of mercy propounded by Seneca. (shrink)

This chapter offers non-retributive, broadly Kantian justifications of punishment and remorse which can be endorsed by free will skeptics. We lose our grip on some Kantian ideas if we become skeptical about free will, but we can preserve some important ones which can do valuable work for free will skeptics. The justification of punishment presented here has consequentialist features but is deontologically constrained by our duty to avoid using others as mere means. It draws on a modified Rawlsian original (...) position in which we assume we are just as likely to be among the punished when the veil of ignorance is raised as we are to be among those protected by the institution of punishment. The justification of remorse presented here is care-based, and draws on the value of sympathizing with people we have wronged, which has a Kantian ground in the duty to take others’ ends as our own. (shrink)

Critical analysis of wide variety of conceptions and justifications of retribution and punishment. Emphasis is on pivotal role of condemnation.

Most readers believe that it is difficult, verging on the impossible, to extract concrete prescriptions from the ethics of Emmanuel Levinas. Although this view is largely correct, Levinas’ philosophy can, with some assistance, generate specific duties on the part of legal actors. In this paper, I argue that the fundamental premises of Levinas’ theory of justice can be used to construct a prohibition against capital punishment. After analyzing Levinas’ concepts of justice, responsibility, and interruption, I turn toward his scattered (...) remarks on legal institutions, arguing that they enable a sense of interruption specific to the legal domain. It is here that we find the conceptual resources most important to my Levinasian abolition. I argue that the interruption of legal justice by responsibility implies what I call the principle of revisability. The principle of revisability states a necessary condition of just legal institutions: To be just, legal institutions must ensure the possibility of revising any and all of their rules, principles, and judgments. From this, the argument against capital punishment easily follows. Execution is a legal act, perhaps the only legal act, that cannot be undone. An application of the principle of revisability to this fact leads to the conclusion that legal institutions cannot justly impose capital punishment. After defending these points at length, I conclude with some observations on the consequences of the principle of revisability for law more generally. (shrink)

Peter Fitzpatrick’s writings prove once and for all that it is possible for a law professor to write in beautiful English. His work also proves once and for all that the dominating tradition of Anglo-American legal philosophy and of law teaching has been barking up the wrong tree: namely, that the philosopher and professional law teachers can understand justice as nested in empty forms, better known as rules, doctrines, principles, policies, and other standards. The more rigorous our analysis or (...) decomposition of the forms, we have believed, the more closely do we access the identity of laws. Justice has been assumed to be a matter of intellectually accessing such analysed forms. Fitzpatrick’s articles and books embody an implicit critique of the analytic view of law and of justice. My entry point into this critique is his preoccupation with Jacques Derrida’s theory of laws as universals and with Derrida’s theory of justice as an inaccessible immediacy or presence in context-specific or concrete experienced events. Each event is experienced in an official’s decision. Such a decision represents what Derrida, Fitzpatrick, and Hegel call ‘individuality’. -/- Derrida’s theory of law presents a conundrum. Derrida misses the possibility that law may exist by virtue of its content rather than its form. Derrida misses this possibility because, heavily influenced by Kant (in Derrida’s theory of law), Derrida associates law with universals. This is so because Kant (and Derrida) are preoccupied with the identity of what counts as a law (lois) rather than with a law’s legitimacy. A universal cannot exist unless it is legitimate, and it is legitimate, I claim, by virtue of its content. In his association of law with universals, Derrida presupposes that legal knowledge exists with reference to a territorial-like boundary. The forms are represented or signified by signs (signifiers) within a boundary of the ultimate form (the state, the nation, or humanity). This ultimate form as a universal, like the discrete rules or forms, lacks socially contingent content. A boundary separates knowable universals from the unknowable world on the exteriority of the boundary. The unknowable world is constituted by concrete events experienced in context-specific circumstances. In his legal theory Derrida hones in upon the decision as the experienced event. In a decision, one is present or immediate with the event. Derrida considers such immediacy as justice. The immediacy, however, can only be represented as a sign (sometimes called a signifier). The sign, in turn, represents an empty signified or form, according to Derrida. Because the immediacy remains a representation rather than a presentation of the experienced event, laws as universals cannot be just. The rupture between the inaccessible immediacy of a decision on the one hand and the represented empty forms on the other is critical to Derrida’s theory of law. -/- I claim that this rupture permeates Derrida’s writings about law because Derrida possesses a territorial-like sense of legal knowledge. I shall argue to this effect as follows. In the first section I shall explain the importance of Fitzpatrick’s exposure of the vacuity of the foundation of the system or structure of universals. In the second section I shall flesh out two elements of Derrida’s legal theory: law as form and the ipseity or concrete event that the form excludes from law. This takes me to the third section, where I shall elaborate how Derrida’s legal theory presupposes knowledge as territorial. I shall argue in the final section that this very sense of territorial knowledge prevents justice from accessing law and law from accessing justice. I conclude with the hint of a very different sense of law, one that draws from experiential knowledge in contradistinction to territorial knowledge. (shrink)

I argue that contemporary liberal theory cannot give a general justification for the institution or practice of punishment, i.e., a justification that would hold across a broad range of reasonably realistic conditions. I examine the general justifications offered by three prominent contemporary liberal theorists and show how their justifications fail in light of the possibility of an alternative to punishment. I argue that, because of their common commitments regarding the nature of justification, these theorists have decisive reasons to reject punishment (...) in favor of a non-punitive alternative. I demonstrate the possibility of this alternative by means of a careful examination of the nature of punishment, isolating one essential characteristic—the aim to impose suffering—and showing how this characteristic need not guide enforcement. There is logical space for a forceful and coercive, yet non-punitive method of enforcement. This fact poses difficulties for many classical and contemporary justifications of punishment, but it poses particularly crippling problems for general liberal justifications. (shrink)

Does the moral status of an action provide in itself a non-instrumental, pro-tanto reason for a corresponding legal status – a reason that applies regardless of whether the law promotes a value that is independent of the law, such as preventing wrongdoing or promoting distributive or retributive justice? While the relation between morality and law is a familiar topic, this specific question is typically not considered explicitly. Yet it seems to be controversial and each of the contrasting answers (...) to this question has some appeal. The article highlights and considers this question. it concludes that the answer is negative: there is no necessary relation between morality and law in this respect. Rather, there is a reason in favor of incorporating morality into the law only when this incorporation promotes a moral value that is independent of the law. (shrink)

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). Despite these concerns, I maintain that free will skepticism leaves intact other ways to respond to criminal behavior—in particular incapacitation, 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 (Caruso 2016, 2017a)—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 since it prioritizes prevention and social justice. -/- In Section 1, I begin by (very) briefly summarizing my arguments against free will and basic desert moral responsibility. In Section 2, I then introduce and defend my public health-quarantine model, which is a non-retributive alternative to criminal punishment that prioritizes prevention and social justice. In Sections 3 and 4, I take up and respond to two general objections to the public health-quarantine model. Since objections by Michael Corrado (2016), John Lemos (2016), Saul Smilanksy (2011, 2017), and Victor Tadros (2017) have been addressed in detail elsewhere (see Pereboom 2017a; Pereboom and Caruso 2018), I will here focus on objections that have not yet been addressed. In particular, I will respond to concerns about proportionality, human dignity, and victims’ rights. I will argue that each of these concerns can be met and that in the end the public health-quarantine model offers a superior alternative to retributive punishment and other non-retributive accounts. (shrink)

I address the question, ‘Should a retributivist support an entrapment defense and if so, under what circumstances?’, by considering the culpability of entrapped defendants. An entrapment defense is invoked by defendants who claim they violated the law because they were enticed to crime by the police and would not otherwise have committed the crime. There are different rationales for the defense: people who are normally law abiding, and who are not predisposed to commit crimes, do not commit crimes merely when (...) the opportunity is presented, without further coaxing—only criminals do—and so spending resources to entice and then punish such “false criminals” is wasteful from a utilitarian perspective. Several theorists assume retributivists must oppose the defense: entrapped defendants have broken the law and, according to one version of retributivism (Mabbott), this itself might warrant punishment; they are still culpable although they were enticed, because succumbing to temptation is no defense—there is no ‘private entrapment defense’; and to not punish the non-predisposed who are enticed to crime by government, while punishing those who are predisposed, is wrongly to assert that a person’s culpability hinges on their predisposition and wrongly to punish someone not for their present conduct but for their character or past actions. I explore some reasons why a retributivist can support an entrapment defense. First, entrapped defendants may be less culpable than the privately enticed insofar as they do not cause harm. As police control the situation, no actual harm is caused, and whether one actually causes harm may bear on one’s culpability; and if one’s predisposition was weak and required substantial police coaxing to be triggered, we might say that the police action and not the defendant caused the crime in the relevant sense. Second, applying Robert Nozick’s account of coercion in a novel way, I consider the argument that entrapped defendants may be less culpable insofar as their action was not fully voluntary, in that unlike in private enticement cases, they necessarily underestimate the probability of being caught before making their choice. (shrink)

Should the state punish its disadvantaged citizens who have committed crimes? Duff has recently argued that where disadvantage persists the state loses its authority to hold individuals to account and to punish for criminal wrongdoings. I here scrutinize Duff’s argument for the claim that social justice is a precondition for the legitimacy of state punishment. I sharpen an objection to Duff’s argument: with his framework, we seem unable to block the implausible conclusion that where disadvantage persists the state lacks (...) the authority to punish any citizen for any crime. I then set out an alternative line of argument in support of the claim that social deprivation can threaten the states legitimate punitive authority. I argue that a penal system must incorporate certain proportionality principles, and that these principles cannot both be met where citizens suffer from deprivation. (shrink)

Restorative justice (RJ) in the secure estate is widespread internationally, although piecemeal and inconsistent in its application. It exists in the form of many practices such as mediation, conferencing, circles, and panels. As the interest in RJ continues to grow, this research takes a step back to ask how reconcilable RJ is with incapacitation. Through a combination of normative thinking, literature review, and primary research that applied qualitative methodologies over a 3-year period, the article examines where the two notions meet (...) in their intentions and expected outcomes. A new classification of restorative practices in prisons is proposed, placed in the context of case studies of existing programs from around the world. (shrink)

Libertarians typically object to having the state deal with law and order for several general reasons: it is inefficient; it is carried out at the expense of taxpayers; and it punishes so-called victimless crimes. Exactly what the observance of liberty implies with respect to the treatment of tortfeasors and criminals is more controversial among libertarians. A pure theory of libertarian restitution and retribution is mainly what is attempted here, without becoming involved in general moral anti-state arguments. However, the pure theory (...) alone will raise practical problems that require immediate response if the theory is to appear at all plausible. (shrink)

Does communicative retributivism necessarily negate capital punishment? My answer is no. I argue that there is a place, though a very limited and unsettled one, for capital punishment within the theoretical vision of communicative retributivism. The death penalty, when reserved for extravagantly evil murderers for the most heinous crimes, is justifiable by communicative retributive ideals. I argue that punishment as censure is a response to the preceding message sent by the offender through his criminal act. The gravity of (...) punishment should be commensurate to the preceding criminal message, so that the offender can face up to the nature and significance of his crime. All murders are not the same. To measure up to the most evil and humanity-degrading murderous message, capital punishment should be the counter-message. Next, I argue that capital punishment does not necessarily violate human dignity. The death penalty and torture may both disrupt human dignity, yet in distinct ways. The death penalty terminates life, the vessel that holds together autonomy, while torture directly assaults autonomy. Torture is never permissible as a form of punishment. But death penalty, when used only on the extravagant evildoers, is justifiable, as life is thoroughly degraded by his own evil act. Further, I argue that mercy is integral to communicative retributivists’ theory of capital punishment. (shrink)

This article challenges the use of social deprivation as a punishment, and offers a preliminary examination of the human rights implications of exile and solitary confinement. The article considers whether a human right against coercive social deprivation is conceptually redundant, as there are recognised rights against torture, extremely cruel, inhumane, or degrading treatment as well as rights to basic health care, education, and security, which might encompass what this right protects. The article argues that the right is not conceptually redundant, (...) but that, even if it were, there would be significant reasons to articulate it. (shrink)

In this paper I examine John Rawls’s understanding of desert. Against Samuel Scheffler, I maintain that the reasons underlying Rawls’s rejection of the traditional view of distributive desert in A Theory of Justice also commit him to rejecting the traditional view of retributive desert. Unlike Rawls’s critics, however, I view this commitment in a positive light. I also argue that Rawls’s later work commits him to rejecting retributivism as a public justification for punishment.

This chapter examines how advances in nanotechnology might impact criminal sentencing. While many scholars have considered the ethical implications of emerging technologies, such as nanotechnology, few have considered their potential impact on crucial institutions such as our criminal justice system. Specifically, I will discuss the implications of two types of technological advances for criminal sentencing: advanced tracking devices enabled by nanotechnology, and nano-neuroscience, including neural implants. The key justifications for criminal punishment- including incapacitation, deterrence, rehabilitation, and (...) retribution – apply very differently to criminal sentences using these emerging technologies than they do to imprisonment. Further, use of these technologies would represent a shift away from retribution as the primary justification for criminal punishment. In addition, the possibility of nano-neural implants entails a new model of rehabilitation: namely, involuntary rehabilitation aimed at changing an offender’s character, rather than his environment. (shrink)