This article starts from the observation that in classical Athens the discovery of democracy as a normative model of politics has been from the beginning not only a political and a legal but at the same time a philosophical enterprise. Reflections on the concept of criminal law and on the meaning of punishment can greatly benefit from reflections on Athenian democracy as a germ for our contemporary debate on criminal justice in a democracy. Three main characteristics of the (...) Athenian model will be analysed: the self-instituting capacity of a democracy based on participatory and reflective citizenship, political power as the capacity of citizens for co-operating and co-acting with others, and the crime of hubris as one of the key issues in Athenian criminal law. These analyses will lead to the conclusion that one of the key issues of a democratic legal order lies in its capacity of recognizing the fragility of the human condition and of developing workable and effective standards of justice in that context. A relational conception of criminal law and punishment, based on proportionality, reflexivity, mutual respect and responsibility fits best with a democracy under the rule of law. (shrink)

EDITOR’S ABSTRACTThis article argues that Shang Yang’s philosophy of law was not only a means to enrich the state and strengthen its army, but also envisioned the orderly rule of all All-under-Heaven. Through a fair, universal, and reliable use of rewards, punishments, and also teaching, this vision of laws could ultimately lead to the promotion of moral values, popular consensus, and people’s self-governance. While the authors admit that in Shang Yang’s own historical context, law was no more than a tool (...) used by the ruler to suppress his people, potentially his ideas could contribute to a future Chinese society fully ruled by law and morality, and inspired by the rule of law. (shrink)

This essay discusses criminal law theories in late Imperial Russia. It argues that, although the political climate of Reform and Counter Reform effectively undermined attempts to implement new legislation premised on the idea of the 'rights-enabled person', paradoxically, it fostered the growth of juridical scholarship. Russian criminal law theorists engaged critically with Western juridical science, which, beginning in the 1870s, witnessed a shift away from absolutist theories inspired by the classics of philosophical idealism towards various strains of positivism arguing (...) for the restoration of the person as a concrete, physiological being. However, while Russian scholars were drawn to these new trends of criminal anthropology and the sociology of crime, they were also obliged to take stock of an indigenous legal culture that scarcely differentiated between pravo and zakon, together with a long tradition of customary practices that equated crime and punishment with sin and redemption. (shrink)

The aim of this article is to explore some aspects of the significance of Simone Weil's work for the question of reconciliation. Focusing on Weil's notion of power, and investigating its plausibility, the article argues that her thinking is less useful than is sometimes supposed for grounding a cosmopolitan ethic. It further argues that Weil's philosophical outlook, with its emphasis on loving everything that happens as an expression of God's will, is in danger of being incapable of taking seriously others' (...) suffering. By picking up on the themes of punishment and forgiveness in her work, it is contended that she does not have readily available a proper conception in this context of our status as political agents. However, it is suggested that there is to be found a more promising line on reconciliation in her work in the notion of luck, and that this concept is one that, more generally, may have a more important role to play in understanding reconciliation than is often supposed. (shrink)

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. (shrink)

Professor Nathan’s goals in this short work are to describe the various senses of "just," to classify the ways in which the moral assessments of actions depend on conception of justice, to explain the logical and psychological factors which affect the popularity of various views of justice, and to explore the political implications of egalitarianism. He contends that there can be as many senses of "just" as there are standards which can be intelligibly used for deciding what makes (...) one state of affairs more valuable than another. For example, in deciding which punishment is appropriate for a crime, an indefinite number of criteria can be used, and, so, a punishment may be just in some senses and unjust in others. The moralist’s task is to establish the sense of justice that is proper to use in a given circumstance. Although Nathan does not defend any view of justice, he does criticize several historically important views. He contends that retributive or desert-dependent views of justice lead to inconsistent results or attach importance to emotionally irrelevant considerations. The final chapter distinguishes various egalitarian views and traces some of the implications of these views for a moral assessment of capitalism. An appendix, which was written prior to the publication of John Rawls’ recent influential book, provides a short analysis of Rawls’ theory of justice. Although Professor Nathan makes a number of valuable distinctions, his book is far too concise and would have benefited from the use of more examples and the elimination of some of his specially devised jargon.—M.G. (shrink)

This paper argues that Han Fei provides us with a theory of punishment that needs not rely upon any sort of moral justification. Furthermore, feelings, including those of disgust, resentment, and anger, are completely irrelevant to the question of punishment. Rather, punishment is simply seen as a mechanistic tool that is employed when some aspect of the political system breaks down, such as when a minister’s proposals do not match their deeds or their deeds do not (...) match their job description. These ideas are quite closely tied to his views on desert, a concept of desert quite different from what we see in the West. Not only does his view lack certain elements that Western desert theorists such as Joel Feinberg consider essential to the very concept of desert, he is quite conscious of this lack and provides a defense of his view. In particular, he offers a conception of desert that does not require that it be conceptually and morally prior to social institutions. As such, Han Fei provides us with a unique lens through which to analyze punishment and its justification that is importantly different from either retributivist or consequentialist justifications. (shrink)

The commission of criminal wrongs is occasionally revealed after the wrongdoer’s death. In such cases, there seems to be a widely-shared intuition, which also frequently motivates many people’s actions, that the dead should still be blamed and that some response, not only stemming from civil society but also the state, to the criminal wrong is necessary. This article explores the possibility of posthumous blame and punishment by the state. After highlighting the deficiencies of the pure versions of retributivism and (...) general deterrence theory, but also the potential in the latter, it argues for a political theory of the criminal law, which views institutions of punishment as the business not only of defendants and victims but also the political community as a whole. Within this normative scheme posthumous responses to wrongs are possible and in some cases necessary for the maintenance of the stability of the political community. Accountability-holding processes may also be possible and necessary for the protection of the reputation of the deceased suspected wrongdoer. (shrink)

Retributivism is often portrayed as a rights-respecting alternative to consequentialist justifications of punishment. However, I argue that the political legitimacy of retribution is doubtful precisely because retribution privileges a controversial conception of the good over citizens’ rights and more widely shared, publicly accessible interests. First, even if retribution is valuable, the best accounts of its value fail to show that it can override or partially nullify offenders’ rights to the fundamental forms of liberty of which criminal (...) class='Hi'>punishment paradigmatically deprives them. Second, the importance of publicly justifying basic forms of coercion on the basis of broadly shared values is a good reason to think that the state should not punish for retribution even those citizens whose actions have created a state interest in punishing them that overrides or partially nullifies their presumptive rights. (shrink)

In his paper, "The Right of the Guilty," Corey Brettschneider aims to develop and defend a theory of punishment within the framework of a liberal-contractarian conception of political legitimacy. My response argues that this attempt to extend the liberal-contractarian theory reveals, in a particularly clear and striking manner, deep and ultimately insurmountable conceptual difficulties for that theory.

In contrast to the traditional view of Kant as apure retributivist, the recent interpretations ofKant's theory of punishment (for instance Byrd's)propose a mixed theory of retributivism and generalprevention. Although both elements are literallyright, I try to show the shortcomings of each. I thenargue that Kant's theory of punishment is notconsistent with his own concept of law. Thus I proposeanother justification for punishment: specialdeterrence and rehabilitation. Kant's critique ofutilitarianism does not affect this alternative, whichmoreover has textual support in (...) Kant and is fullyconsistent with his concept of law. (shrink)

The paper examines three aspects of the debate over the introduction of victim impact statements (VIS) in criminal cases. The first is the challenge VIS presents to the wholly public conception of criminal justice, in which the offender is prosecuted, tried and punished in the name of the state and not the individual victim. The second is the claim by supporters of VIS that the enhancement of victim input contributes to repairing an imbalance between offender and victim, created by (...) the crime itself and exacerbated by existing criminal justice processes. The third is the claim that victim impact evidence is necessary to ensure that punishment is properly calibrated to the blameworthiness of the offender. In respect of each question, a key role is played in supporting VIS by two presuppositions: that criminal justice should be thought of as a field of conflict among individuals seeking their due, and that the courts suffer an institutional deficiency of human understanding that requires a special remedy. The paper argues that the case for VIS is seriously weakened if these presuppositions are not accepted, and draws attention to their derivation from a wider political culture characterised by the dominance of neo-liberalism or market individualism. (shrink)

Should we conceive of corporations as entities to which moral responsibility can be attributed? This contribution presents what we will call a political account of corporate moral responsibility. We argue that in modern, liberal democratic societies, there is an underlying political need to attribute greater levels of moral responsibility to corporations. Corporate moral responsibility is essential to the maintenance of social coordination that both advances social welfare and protects citizens' moral entitlements. This political account posits a special (...) capacity of self-governance that corporations can intelligibly be said to possess. Corporations can be said to be "administrators of duty" in that they can voluntarily incorporate moral principles into their decision-making processes about how to conduct business. This account supplements and partly transforms earlier pragmatic accounts of corporate moral responsibility by disentangling responsibility from its conventional linkages with accountability, blame and punishment. It thereby represents a distinctive way to defend corporate moral responsibility and shows how Kantian thinking can be helpful in disentangling the problems surrounding the concept. (shrink)

(Abstract: To say that there is a moral right to act in a certain way is to say that there is a presumption that such acts are morally right, which implies that others should not blame, punish or deliberately obstruct. A community’s recognition of such rights is a way of reducing conflict among its members. Natural or human rights are rights that ought to be recognised in every community. Statements of natural rights are not analytic; they may be self evident, (...) at least in the sense that everyone can easily see the usefulness of recognising such rights. The concept of a right has not changed since the middle ages and neither have the kinds of justifications given for recognising rights. Medieval moralists clearly recognised the human freedom presupposed by all ethical and legal systems and valued the liberty that consists in not being excessively constrained by legally and socially enforced duties. In modern times more recognition has been given to the rights of conscience, and this has led to some attempt to formulate duties we have toward conscientious agents whose actions we cannot accept as morally permissible.). (shrink)

Mainstream economics was founded on many strong assumptions. Institutions and politics were treated as irrelevant, government as exogenous, social norms as epiphenomena. As an initial gambit this was fine. But as the horizons of economic inquiry have broadened, these assumptions have become hindrances rather than aids. If we want to understand why some economies succeed and some fail, why some governments are effective and others not, why some communities prosper while others stagnate, it is essential to view economics as embedded (...) in politics and society. Prelude to Political Economy is a study of this embeddedness; it argues for an 'inclusive' approach to institutions and the state.Modern economics recognizes that individuals' pursuit of their own selfish ends can result in socially suboptimal outcomes -- the Prisoner's Dilemma being the stark example. It has been suggested that what we need in such an eventuality is 'third-party' intervention, which can take the form of imposing punishment on players. Kaushik Basu objects to this method of wishing third parties out of thin air. He argues that if a third party that could impose its will on others were available, then it should have been modeled as a player to start with.The adoption of such an inclusive approach has implications for our conception of the state and the law. It means that the law cannot be construed as a factor that changes the game that citizens play. It is instead simply a set of beliefs of citizens; and, as such, it is similar to social norms. What the law does for an economy, so can social norms. The book discusses how the nature of policy advice and our conception of state power are affected by this altered view of the state and the law.As corollaries, the book addresses a variety of important social and philosophical questions, such as whether the state should guarantee freedom of speech, whether determinism is compatible with free will, and whether the free market can lead to coercion. (shrink)

In this essay I develop and defend a theory of state punishment within a wider conception of political legitimacy. While many moral theories of punishment focus on what is deserved by criminals, I theorize punishment within the specific context of the state's relationship to its citizens. Central to my account is Rawls's “liberal principle of legitimacy,” which requires that all state coercion be justifiable to all citizens. I extend this idea to the justification of (...) class='Hi'>political coercion to criminals qua citizens. I argue that the liberal principle of legitimacy implicitly requires states to respect the basic political rights of those who are guilty of committing crimes, thus prohibiting capital punishment. (shrink)

ABSTRACTHan Fei’s political theory is widely characterized as eschewing any connection with morality; so, can he have any conception of justice? In this paper, I accept the interpretation of Han Fei jettisoning any moral commitment, but I argue that he gives heed to an understanding of justice. This conception of justice arises naturally from the ordinary human sentiment of resentment for wrongs done and becomes a moral staple in the consciousness of ordinary people. Such a conception (...) of justice has these features: all and only the guilty receive punishment, and the punishments are in some sense proportionate to the crime. Since disregarding this popular conception of justice results in resentment and political instability, Han Fei, without any moral commitment to it, accepts the popular conception of justice on prudential and consequentialist grounds. (shrink)

This paper reconstructs Foucault's concept of illegalism and explores its significance for his genealogies of modern punishment and racial formation. The concept of illegalism, as distinct from illegality, plays a double role. It allows Foucault to describe a ruling class tactic for managing inequalities and also to characterize an important vein of resistant subjugated knowledges. The political project of the prison is linked to a new crime policy that does not so much aim to repress illegalisms as to (...) manage them differentially. This practice of differential management, which arises in the 18th century, produces a primary split along class lines between two types of illegalism—an insight that has a certain resonance with Edwin's Sutherland's concept of “white collar crime.” Foucault's investigation of a third category of “infralegal illegalism” sheds light not only on the genealogy of the category of delinquency but also on his genealogy of racial categorization. Finally, Foucault argues that a genuinely radical critique of modern society must address the “need” organized political power has for the illegalisms from which it purportedly seeks to protect society. Against this practice of differentially managing illegalisms, Foucault seeks to reactivate a subjugated problematic that might open up questions about the transformative possibilities of illegalism today. (shrink)

The term dikē has a wide range of meanings in tragic poetry. However, we could identify two distinctively or predominantly Euripidean trends that are closely associated with the use of dikē and are actually interdependent. Heracleidae, Suppliants, and Phoenissae are good test-cases in that regard. Whilst the plays bear strong resemblances to Aeschylean and secondarily Sophoclean dramas, the treatment of dikē is differentiated. 1) By contrast with Aeschylus and secondarily Sophocles, dikē in these Euripidean plays is viewed in connection to (...) socio-political values and institutions that are essentially humanly constructed. The focus is shifted to the nature and role of these human conventions and the way in which they interact with deeply-rooted, traditional patterns of conduct. The plays explore the difficulties, complications or failures that can arise in practice, in the frame of the quest for dikē. 2) Despite the occasionally strong individualization and interest in characterization, Euripides focuses on the consequences of the disturbance of dikē for the community as well as on the difficulties involved in the execution of dikē, rather than the rigid, and somewhat abstract, demand for the execution of dikē itself. Individual actions of doubtful justification are largely viewed and assessed in the light of their consequences for the polis. A major, pertinent issue is both the necessity and the limitations of vengeance or punishment, both on an individual and on a collective scale. (shrink)

This essay concerns Simone de Beauvoir's analysis of blame and punishment in “Œil pour œil” and the irreconcilable tensions that haunt it. I study these tensions—between the desire to blame and punish and the inability to provide moral justification for these practices—and locate their source in Beauvoir's conception of ethics in Pour une morale de l'ambiguïté. According to my reading, her ethics implies that violence violates freedom, the grounding principle of ethical life. Retaliatory and retributive judgments and the (...) punishment they uphold, regardless of whether they are exerted by individuals or by official state powers, are forms of violence and are therefore unjustifiable. The aporias of blame and punishment in “Œil pour œil” suggest that Beauvoir's ideal of ethics necessitates an abolitionist position regarding punishment. The essay ends with a reflection on the affinity between the position constructed from Beauvoir's work and feminist abolitionist theories that seek to undermine the legal, social, and political institutions that perpetuate, rather than resolve, economic, racial, gender, sex, and class inequality. (shrink)

It is sometimes thought that the normative justification for responding to large-scale violations of human rights via the judicial appararatus of trial and punishment is undermined by the desirability of reconciliation between conflicting parties as part of the process of conflict resolution. I take there to be philosophical, as well as practical and psychological issues involved here: on some conceptions of punishment and reconciliation, the attitudes that they involve conflict with one another on rational grounds. But I shall (...) argue that there is a conception of political reconciliation available which does not involve forgiveness and this forms of reconciliation may be the best we can hope for in many conflicts. Reconciliation is nevertheless likely to require the expression of what Darrell Moellendorf has called 'political regret' and the denunciatory role aspect of punishment makes it particularly well-suited to this role. (shrink)

Abstract‘Counterspeech’ is often presented as a way in which individual citizens can respond to harmful speech while avoiding the potentially coercive and freedom-damaging effects of formal speech restrictions. But counterspeech itself can also undermine freedom by contributing to forms of social punishment that manipulate a speaker’s choice set in uncontrolled ways. Specifically, and by adopting a republican perspective, this paper argues that certain kinds of counterspeech candominatewhen they contribute to unchecked social norms that enable others to interfere arbitrarily with (...) speakers. The presence of such domination can pose just as much a threat to freedom of speech as unchecked formal restrictions by threatening an individual’s discursive status, revealing a problem for those who defend counterspeech as a freedom-protecting alternative. Rather than rejecting both counterspeech and legislation outright, however, this paper argues that the republican principle ofparsimonyought to be exercised when deciding on appropriate harmful speech response. While the principle of parsimony allows for suitably-checked formal punishment for some of the most egregious forms of harmful speech, citizen-led counterspeech must be guided by a reliable set of norms against the use of social punishment where those who do engage in social punishment face certain costs. The presence of robust, widely-known, and reliable norms thus supports both formal and informal responses to harmful speech while maintaining a secure discursive status for all. (shrink)

The present essay focuses on political torture during the twentieth century. It takes a multidisciplinary approach, because it entails insights from history, politics, ideology, anthropology, psychology and literature. The aim of the present essay is to discuss the relation between "Classical" torture (in the past centuries) and "Modern" torture (in the twentieth century), analyzing the phenomena in a comparative perspective and paying attention to the hidden and unconscious motives behind historical facts. What I am interested in is the mechanism (...) by which, in the twentieth century, torture has been reintroduced particularly for political prisoners - that means torture for ideas and conscience, torture as a technique of power and not merely as a technique of punishment. What torture destroys first is the dignity and privacy of the victim; only then does it destroy the victim's freedom and integrity. For this reason, every torture is an act of rape, even a symbolic one. I mean this in psychological terms, not as a demonstration of feminist vocabulary. Every touching of the victim's body is rape, emphasizing the "virility" of the torturer. First of all, the torturer wants to become a master of his victim's body, and only later, a master of the tortured person's mind. I include imagination in the concept of torture, imagination being one of the tools of the act of torturing. In torture, imagination becomes, in my demonstration, a never-ending weapon. (shrink)

This book explores the concept of punishment: its meaning and significance, not least to those subject to it; its social, political and emotional contexts; its role in the criminal justice system; and the difficulties of bringing punishment to an end. It explores how levels of criminal punishment could and should be reduced, without compromising moral standards, public safety or the rights of victims of crime. Core contents include: Why punishment matters, the salience of emotions in (...) its various discourses and the role of culture. The politicisation of punishment and legitimacy. The penal system, the prominence of the prison in research on punishment and the role of community sanctions. The aims of punishment, its limits and the role of power. The ethics of punishment and human rights. Punishment and social order. This book is essential reading for all criminologists, as well as students taking courses on punishment, penology, prisons and the criminal justice system. (shrink)

The most widely repeated retributivist argument against the utilitarian theory of punishment is that utilitarianism permits punishment of the innocent. While defenders of utilitarianism have shown that a publicly announced policy of punishing the innocent is unlikely to serve utility, critics have insisted that utilitarianism morally obliges officials to deceive the public by framing the innocent. Yet philosophers and legal scholars have heretofore failed to test this claim against the writings of the theory's originators. We directly examine the (...) writings of Jeremy Bentham and other eighteenth and nineteenth century utilitarians and demonstrate that the originators of utilitarian penology clearly opposed both punishment of the innocent and deception of the public. We argue that utilitarianism originated as a legal theory that emphasized several institutional conditions for the public pursuit of utility, including security of person and property, legality, legislative supremacy, democratic accountability, publicity and transparency. These institutional conditions would preclude both systematic and ad hoc framing of the innocent. We show that the original utilitarians considered individuals incompetent to determine and pursue the public welfare, and that the contemporary conception of utilitarianism as an ethical standard governing individuals is a modern innovation. Bentham's theory of punishment did not derive from any general ethical theory. Bentham, like his chief forebears Hume, Helvetius and Beccaria, thought of public utility as a standard of value for public action, such as legislation. He assumed that private action was ruled by self-interest (i.e. private utility) so that there was little point in directing arguments about the general welfare to individual ethical actors. In assessing public action, Bentham was far less concerned about consequences than has generally been supposed and far more concerned about process. He identified utility with security of expectations and the rule of law. As a consequence, he endorsed public actions that could be seen to have emerged from a rational and well-informed debate about their consequences for the public welfare. Utility was not a definition of the good or a guide to conscience, but a standard designed for use in public, deliberative debate. Utilitarianism was not so much a philosophical theory as a rhetorical practice, understood as a transparent language of analysis and argument for use in political deliberation.We elaborate the procedural conditions presupposed by utilitarian discourse, beginning with Bentham's commitment to a conception of legality involving legislative promulgation of formal rules faithfully applied by rigidly constrained bureaucrats and judges. Next, we demonstrate Bentham's commitment to democratic representation of the public in devising legislation. Finally, we emphasize Bentham's commitment to publicity in government decisionmaking. Utilitarian policy required public scrutiny of all decisions and the information and reasons considered in making them. In sum, Bentham's utilitarianism was primarily concerned with the problem of how to design government so that it could accurately identify and faithfully pursue the public good while being openly seen to do so. It follows that Bentham's utility principle does not require him to endorse deceiving the public and framing an innocent person. (shrink)

This article defends the fair-play theory of legal punishment against three objections. The first, the irrelevance objection, is the long-standing complaint that fair play fails to capture what it is about crimes that makes criminals deserving of punishment ; the others are the recently raised false-equivalence and lacks-integration objections. In response, I sketch an account of fair-play theory that is grounded in a conception of the political order as a meta- cooperative practice—a conception that falls (...) somewhere between contractual and communitarian conceptions—and draw on this account to show how the theory can overcome the objections. (shrink)

This research investigates the influence of religious priming and group membership on prosocial behavior, measured by the willingness to donate to fictitious charities in a hypothetical scenario. A sample of 258 Hindu participants, averaging 21.3 years of age, were engaged in an online study designed on PsyToolkit. The study employed a 3*2 factorial design, wherein participants were subliminally primed with concepts of “reward” and “punishment” within religious contexts through a lexical decision task. Post-priming, individuals were presented with a decision (...) to allocate a portion of a potential lucky draw prize to selected charities, which represented either their religious ingroup or an outgroup. The findings demonstrated that religious priming did not significantly enhance prosocial behavior toward either group. Bayesian analysis supported the absence of an effect for priming and group conditions. Moreover, other variables such as religiosity, sex, and political orientation showed no substantial effect on the likelihood of charitable giving. However, consistent with previous research, past charity behavior emerged as the most salient predictor of prosocial behavior, underscoring the importance of experiential factors in shaping altruistic tendencies. The study reflects on the influence of India’s secular and culturally rich backdrop, which may modulate the propensity to engage in charitable acts, especially when the donations come from unexpected gains rather than one’s own money. It reveals that prosocial behavior is shaped by a mix of situational and personal factors, not just religious beliefs. The research contributes to the understanding of prosocial behavior in diverse religious contexts and the role of personal experience in predicting charitable actions, advocating for further investigation into these dynamics. (shrink)

The question "What can justify criminal punishment ?" becomes especially insistent at times, like our own, of penal crisis, when serious doubts are raised not only about the justice or efficacy of particular modes of punishment, but about the very legitimacy of the whole penal system. Recent theorizing about punishment offers a variety of answers to that question-answers that try to make plausible sense of the idea that punishment is justified as being deserved for past crimes; (...) answers that try to identify some beneficial consequences in terms of which punishment might be justified; as well as abolitionist answers telling us that we should seek to abolish, rather than to justify, criminal punishment. This book begins with a critical survey of recent trends in penal theory, but goes on to develop an original account (based on Duff's earlier Trials and Punishments) of criminal punishment as a mode of moral communication, aimed at inducing repentance, reform, and reconciliation through reparation-an account that undercuts the traditional controversies between consequentialist and retributivist penal theories, and that shows how abolitionist concerns can properly be met by a system of communicative punishments. In developing this account, Duff articulates the "liberal communitarian" conception of political society (and of the role of the criminal law) on which it depends; he discusses the meaning and role of different modes of punishment, showing how they can constitute appropriate modes of moral communication between political community and its citizens; and he identifies the essential preconditions for the justice of punishment as thus conceived-preconditions whose non-satisfaction makes our own system of criminal punishment morally problematic. Punishment, Communication, and Community offers no easy answers, but provides a rich and ambitious ideal of what criminal punishment could be-an ideal of what criminal punishment cold be-and ideal that challenges existing penal theories as well as our existing penal theories as well as our existing penal practices. (shrink)

This book offers a philosophical analysis of the moral and legal justifications for the use of force. While the book focuses on the ethics self-defense, it also explores its relation to lesser evil justifications, public authority, the justification of punishment, and the ethics of war. Steinhoff’s account of the moral use of force covers a wide range of topics, including the nature of justification in general, the precise elements of different justifications, the logic of claim- and liberty-rights and of (...) rights forfeiture, the value of human life and its limits, and the principles of reciprocity and precaution. While the author’s analysis is primarily philosophical, it is informed by a metaethical stance that also places heavy emphasis on existing law and legal scholarship. In doing so, the book appeals to widely shared moral intuitions, precepts, and concepts grounded in criminal law. Self-Defense, Necessity, and Punishment offers the most comprehensive and systematic account of the ethics of self-defense. It will be of interest to scholars and graduate students working in applied ethics and moral philosophy, philosophy of law, and political philosophy. (shrink)

The article argues for a conception of the justification of punishment that is compatible with a modern, politically liberal regime. Section I deals with what some have thought are the obvious soci...

Many contemporary philosophers writing on punishment seek to show that much of the dispute between retributionists and utilitarians springs from a failure on the part of both parties to elucidate the concept of punishment. The writers are usually utilitarians who seek to show that what is true in the retributive theory is simply a point about the concept of punishment, and that for the rest, the morality of punishment is to be explained in terms of the (...) utilitarian theory. Those who attempt to destroy the retributive theory by reducing its element of truth to a mere conceptual point about the concept of punishment, seek to argue that the notion of being guilty of an offence is part of the concept of punishment. Against this kind of approach, I wish to consider whether a general theory of punishment is possible, and if so, what are its basic concepts—punishment, deserving of punishment, deserved, or justifiable punishment—and how they are to be elucidated. I shall be concerned to argue that much contemporary writing on punishment commits the Platonic fallacy of assuming that there is a single, core, paradigm use of ‘punishment’ which is to be found by elucidating the concept of legal punishment. (shrink)

This book is the product of a major British Academy Symposium held in 2007 to mark the centenary of the birth of H.L.A. Hart, the most important legal philosopher and one of the most important political philosophers of the twentieth century. -/- The book brings together contributions from seventeen of the world's foremost legal and political philosophers who explore the many subjects in which Hart produced influential work. Each essay engages in an original analysis of philosophical problems that (...) were tackled by Hart, some essays including extended critical discussions of his major works: The Concept of Law, Punishment and Responsibility, Causation in the Law and Law, Liberty and Morality. All the main topics of Hart's philosophical writings are featured: general jurisprudence and legal positivism; criminal responsibility and punishment; theories of rights; toleration and liberty; theories of justice; and causation in the law. (shrink)

Many believe that a citizen who engages in civil disobedience is not exempt from the sanctions that apply to standard law-breaking conduct. Since he is responsible for a deliberate breach of the law, he is also liable to punishment. Focusing on a conception of responsibility as answerability, I argue that a civil disobedient is responsible (i.e. answerable) to his fellows for the charges of wrongdoing, yet he is not liable to punishment merely for breaching the law. To (...) support this claim, I defend an account of political obligation framed in terms of respect for (rather than mere obedience to) the law, and argue that the mere illegality of civil disobedience does not suffice to establish wrongdoing. I then discuss and reject three objections to my argument. (shrink)

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 n...

Human rights have become a wider and more visible feature of our political discourse, yet many have also noted the great discrepancy between the human rights invoked in this discourse and traditional philosophical accounts that conceive of human rights as natural rights. This article explores an alternative approach in which human rights are conceived primarily as international norms aimed at securing the basic conditions of membership or inclusion in a political society. Central to this `political conception' (...) of human rights is the idea of human rights as special (in contrast to general) rights that individuals possess in virtue of specific associative relations they stand in to one another. This view is explored and defended through a critical review of four recent political conceptions — Michael Ignatieff, John Rawls, Thomas Pogge and Joshua Cohen. (shrink)

The political conception makes sense of human rights strictly in light of their role in international human rights practice, more specifically by describing how they justify interventions against states that engage in or fail to prevent human rights violations. This conception is, therefore, normative and fact-dependent. Beyond this, it does not seem to have much to say about the actual nature of international human rights practice. The argument sustained here reinterprets the political conception by resorting (...) to a heuristic device that explains how normativity can be fact-dependent: the Hartian model. The characteristics of H.L.A. Hart’s rule of recognition are useful to determine the characteristics of human rights practice from the viewpoint of the political conception. Also, they help to overcome some of the problems typically faced by the political conception, such as whether there is only one practice or many, whether the notion of human rights becomes too contingent on the way the world is currently organised, how agents can violate content-changing practices, or how reliance on current states of affairs leaves room for criticism of those states of affairs. (shrink)

The fundamental concepts of Socratic political theory are statesmanship or the art of politics, and the good of the city. Important scholars have denied that, on Socrates’ view, statesmanship as such is possible. But Socratic intellectualism does not commit him to the view that the methods of politics, such as legislation and punishment, are useless. The Socratic tradition in political theory is rich and varied. Among the dimensions of variation are: the relationship between statesmanship and other arts (...) of rule; what are the limits of reasonable human ambition; and the relationship between the well-being of the city and the well-being of its parts. At the core of Socratic moral and political theory is a commitment to choose what is truly good. Varieties of Socratic value theory arise from the different ways in which this commitment is interpreted, and the range of realms to which it is applied. (shrink)

_Natural and Political Conceptions of Community_ demonstrates how the early modern Jesuits recruited the household community when reflecting on the political community, integrating an account of human nature with a notion of politics as the sphere of law, rights, and virtues.

In this article I will combine Erving Goffman’s sociology with some of the main aspects of Actor-Network Theory in order to outline a theatrical conception of social power. My first aim is to try to summarize the sociological perspective introduced by Kenneth Burke and then improved on by Erving Goffman to understand the face-to-face interactions of everyday life. Secondly, I will try to use the theatrical metaphor underlying this theoretical framework to describe power-over relations in everyday life. Thanks to (...) the combination of the dramaturgical theory proposed by Erving Goffman and the ‘object turn’ given to social theory by Actor-Network Theory, a theatrical conception of power allows the episodic, dispositional and systemic dimensions of power relations to be mapped respectively depending on the actors’ performances, their roles of power and the institutionalized scripts. Moreover, this theatrical representation of power-over relations is a defaced understanding of the phenomenon that enables us to investigate not only its different directional forms (power-to, -over and -with), but also their possible variants (empowerment, resistance, domination and solidarity). (shrink)

The concept of legitimacy is at the heart of the theory of power. It is essential to understand how a political power is built and how obedience is obtained among the population. We examine here the legitimacy of power for two of the most important political philosophies of classical China: Confucianism and Legalism. We show how a specific group of the population, the scholar-officials, play a specialised role in the two systems, acting as a legitimisation group. We further (...) compare rites and laws as a way to obtain social order, and morality vs punishments as a way to obtain obedience. We conclude that the Confucianist system is less fragile than the Legalist, but also more oppressive, since it allows fewer personal choices to individuals. (shrink)

This chapter argues that the same logic that imbues the state with the legitimate authority to punish also imposes restraints on that authority. It suggests that scholarship on punishment puts more emphasis on the political legitimacy of state punishment rather than on the moral question of what is deserved by criminals. It turns to Rousseau's social contract based justification for punishment as a crucial resource in that effort. It begins by closely examining Rousseau's claim that the (...) criminal consents to punishment, and by suggesting that his seemingly absurd and perverse claims are actually defensible. It goes on to clarify two senses in which Rousseau's understanding of consent serves to ground the rights of the guilty. First, it argues that the idea of consent itself legitimizes some punishment but also sets strict limits on when and how the state can punish. Second, it argues that Rousseau's account of welfare rights also sets a limit on when the state may rightfully punish. The final two sections of the chapter consider the role of punishment outside the social contract in Rousseau's theory and suggest an important contrast between Rousseau's and Hobbes's conceptions of punishment. (shrink)