Books on the topic 'Justification of punishment'
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1
Mardini, Souran. Justification of reward and punishment. Istanbul, Turkey: Murat Center, 2014.
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2
Asbāb al-ibāḥah wa-asbāb takhfīf al-ʻiqāb fī al-qānūnayn al-Lībī wa-al-Maghribī. Miṣr: Dār al-Kutub al-Qānūnīyah, 2010.
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3
Eldridge, W. L. The justification of punishment: Resolving the antinomy. 1993.
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4
Duff, R. A. Punishment. Edited by Hugh LaFollette. Oxford University Press, 2009. http://dx.doi.org/10.1093/oxfordhb/9780199284238.003.0014.
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This article's central question is: ‘What can justify a system of criminal punishment?’ That question is familiar, but merits clarification. The article focuses on criminal punishment imposed by criminal courts for criminal offences. So narrow a focus, though typical of penal philosophy, requires justification. First, it ignores other kinds of punishment, formal and informal, imposed by other agencies: by institutions or professions, in the family. What justifies this focus is that criminal punishment is distinctive in involving the state's exercise of its dominant coercive power over its citizens, and thus raises the distinctive question of what penal powers (if any) the state should have, and how they should be exercised. Secondly, it ignores other aspects of criminal justice, and the complex processes from which punishment flows — the investigation of crime, the criminal procedure of trial and conviction.
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Bedau, Hugo Adam. Capital Punishment. Edited by Hugh LaFollette. Oxford University Press, 2009. http://dx.doi.org/10.1093/oxfordhb/9780199284238.003.0028.
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Understanding and justifying capital punishment need to proceed from within a larger framework that can be and often is left implicit. That framework consists of one's views about punishment generally; only within that context can one adequately face the narrower issues peculiar to understanding and justifying the death penalty. If punishment as such could not be justified, then a fortiori neither could the death penalty. If punishment generally serves certain purposes or functions, then presumably so does the death penalty. Not so conversely, however. The death penalty might not be justified, but that need not put in doubt the justification of punishment in general. The discussion in this article proceeds on two assumptions. First, the general features defining punishment within a legal system will be taken for granted. Secondly, the function and purposes of the death penalty will be assumed to be those shared by punishments generally.
6
Dagger, Richard. Justifying Punishment. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780199388837.003.0006.
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Chapter 5 is the first of the three chapters of Playing Fair that make the case for fair play as the basis for a compelling justification of legal punishment. As it was with the discussion of political obligation, so it is necessary to begin this part of the book by clarifying key terms and confronting fundamental challenges to the enterprise of justifying punishment itself. The chapter thus begins with the questions of what is punishment and what are its proper aims. The latter question is usually answered by reference to retributivism and/or deterrence, and I try to place fair-play theory in this context by linking it to communicative theories of punishment while distinguishing it from Jean Hampton’s expressive version of retributivism. The chapter concludes with responses to those who would, for various reasons, abolish punishment altogether.
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Wellman, Christopher. Rights Forfeiture and Punishment. Oxford University Press, 2017. http://dx.doi.org/10.1093/acprof:oso/9780190274764.001.0001.
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In Rights Forfeiture and Punishment, Christopher Heath Wellman argues that those of us who seek to defend the moral permissibility of punishment should shift our focus from general justifying aims to moral side constraints. Given that persons typically have a right not to be subjected to the hard treatment of punishment, it would seem natural to conclude that the permissibility of punishment is centrally a question of rights. Despite this, the vast majority of theorists working on punishment focus instead on important aims, such as achieving retributive justice, deterring crime, restoring victims, or expressing society’s core values. The book argues that these aims may well explain why we should want a properly constructed system of punishment, but none shows why it would be permissible to institute one. Only a rights-based analysis will suffice, because the type of justification we seek for punishment must demonstrate that punishment is permissible, and it would be permissible just in case it violated no one’s rights. On this book’s view, punishment is permissible only when the wrongdoer has forfeited her right against punishment by culpably violating (or at least attempting to violate) the rights of others. After defending rights forfeiture theory against the standard objections, the book explains this theory’s implications for a number of core issues in criminal law, including the authority of the state, international criminal law, the proper scope of the criminal law and the tort/crime distinction, procedural rights, and the justification of mala prohibita.
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Dagger, Richard. Playing Fair with Punishment. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780199388837.003.0007.
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Chapter 6 turns from the explication and defense of legal punishment as a general practice to the task of developing and defending the fair-play theory of punishment in particular. As developed by Herbert Morris and others, the theory holds that punishment is justified, ceteris paribus, because law breakers try to enjoy the benefits of a legal system without bearing its burdens, thereby taking unfair advantage of those who obey the laws. I elaborate this account by drawing out the connection between legal systems and cooperative practices, arguing that the analogy between fair play in a game and fair play in a polity, or legal system, is not simply misguided. I then respond to five serious objections that critics have leveled against fair play as an account of punishment. I conclude by considering the gentler complaint that fair play is too narrow to provide a satisfactory justification for legal punishment.
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Punishment: The Supposed Justifications. Blackwell Publishers, 1990.
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10
Stahn, Carsten. Justice as Message. Oxford University Press, 2020. http://dx.doi.org/10.1093/oso/9780198864189.001.0001.
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International criminal justice is a form of social performance. It relies on messages, speech acts, and performatives practices in order to convey social meaning. Major criminal proceedings, such as Nuremberg or Tokyo and other post-Second World War trials have been branded as ‘spectacles of didactic legality’. However, the expressive and the communicative functions of law have been sidelined in institutional discourse and legal practice. The concept of expressivism is referred to in justifications of punishment or sentencing rationales. It appears as reference in scholarly treatises, but it has remained crucially underdeveloped. This book is an attempt to remedy this gap. It shows that expression and communication are not only an inherent part of the punitive functions of international criminal justice but represented in a whole spectrum of practices: norm expression and diffusion, institutional actions, performative aspects of criminal procedures, and repair of harm. It argues that expressivism is not a classical justification of justice or punishment on its own but rather a means to understand its aspirations and limitations, to explain how justice is produced, and to ground punishment rationales.
11
Honderich, Ted. Punishment: The Supposed Justifications Revisited. Pluto Press, 2005.
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12
Honderich, Ted. Punishment: The Supposed Justifications Revisited. Pluto Press, 2005.
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13
Dagger, Richard. Introduction. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780199388837.003.0001.
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This book aims to develop a unified theory of political obligation and the justification of punishment that takes its bearings from the principle of fair play. Much has been written on each of these subjects, of course, including numerous essays in recent years that approach one or the other topic in fair-play terms. However, there has been no sustained effort to link the two in a fair-play theory of political obligation and punishment. This book undertakes such an effort. This introduction explains why such a theory is an attractive possibility and how the argument for it unfolds in the succeeding chapters.
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Fassin, Didier. The Will to Punish. Edited by Christopher Kutz. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780190888589.001.0001.
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Over the past few decades, most societies have become more repressive, their laws more relentless, their magistrates more inflexible, independently of the evolution of crime. In this book, using an approach both genealogical and ethnographic, distinguished anthropologist Didier Fassin addresses the major issues raised by this punitive moment through an inquiry into the very foundations of punishment. What is punishment? Why punish? Who is punished? With these three questions he initiates a critical dialogue with moral philosophy and legal theory on the definition, justification, and distribution of punishment. Going against the triumphing penal populism, this investigation, based on ten years of empirical research on police, justice, and prison systems, proposes a salutary revision of the presuppositions that nourish the passion for punishing and invites readers to rethink the place of punishment in the contemporary world. The theses developed in the volume are discussed by the criminologist David Garland, the historian Rebecca McLennan, and the sociologist Bruce Western, to whom Fassin responds in a short essay, asking, What is a critique of punishment?
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Hoskins, Zachary. Multiple-Offense Sentencing Discounts. Oxford University Press, 2017. http://dx.doi.org/10.1093/oso/9780190607609.003.0005.
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This chapter examines one intuitively appealing legal practice for which retributivist accounts struggle to find justification: multiple-offense sentencing discounts. It also considers several proposed strategies for justifying bulk discounts on the basis of retributivism. Three strategies are discussed: those that appeal to an absolute punishment maximum, those that appeal to interpersonal practices of blame and making amends, and those that suggest that perpetrators of multiple offenses sometimes have reduced culpability. The chapter argues that each of these strategies either is implausible as a ground for bulk-sentencing discounts or is plausible only insofar as it incorporates nonretributivist considerations into its account—thus is in fact a hybrid view. It concludes by looking at hybrid theories as an alternative, suggesting that such approaches not only can provide justification for bulk-sentencing discounts, but are also more plausible in general than is generally assumed.
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Brink, David O. Fair Opportunity and Responsibility. Oxford University Press, 2021. http://dx.doi.org/10.1093/oso/9780198859468.001.0001.
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Fair Opportunity and Responsibility lies at the intersection of moral psychology and criminal jurisprudence and analyzes responsibility and its relations to desert, culpability, excuse, blame, and punishment. It links responsibility with the reactive attitudes but makes the justification of the reactive attitudes depend on a response-independent conception of responsibility. Responsibility and excuse are inversely related; an agent is responsible for misconduct if and only if it is not excused. Consequently, we can study responsibility by understanding excuses. We excuse misconduct when an agent’s capacities or opportunities are significantly impaired, because these capacities and opportunities are essential if agents are to have a fair opportunity to avoid wrongdoing. This conception of excuse tells us that responsibility itself consists in agents having suitable cognitive and volitional capacities—normative competence—and a fair opportunity to exercise these capacities free from undue interference—situational control. Because our reactive attitudes and practices presuppose the fair opportunity conception of responsibility, this supports a predominantly retributive conception of blame and punishment that treats culpable wrongdoing as the desert basis of blame and punishment. We can then apply the fair opportunity framework to assessing responsibility and excuse in circumstances of structural injustice, situational influences in ordinary circumstances and in wartime, insanity and psychopathy, immaturity, addiction, and crimes of passion. Though fair opportunity has important implications for each issue, treating them together allows us to explore common themes and appreciate the need to take partial responsibility and excuse seriously in our practices of blame and punishment.
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Bloxham, Donald, and Devin O. Pendas. Punishment as Prevention? Edited by Donald Bloxham and A. Dirk Moses. Oxford University Press, 2012. http://dx.doi.org/10.1093/oxfordhb/9780199232116.013.0031.
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This article is divided into three roughly chronological sections, each dealing with an important stage in the chequered history of the legalist paradigm. Despite the real innovations of the nineteenth century, people take the Nuremberg trials as starting point because the legal developments of the immediate post-war period served as the crucible for most subsequent developments in international legalism. Criminal trials are intended to punish crime. Such punishment has classically been justified in one of three ways, as retribution, as a means for preventing the perpetrator from committing similar crimes again in future, and as a way of deterring other potential offenders from engaging in similar crimes themselves. In addition, trials for genocide and crimes against humanity have often been justified as forms of political and moral pedagogy. In the end, though, none of these justifications make much sense when applied to genocide.
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Belser, Julia Watts. The Sexual Politics of Destruction. Oxford University Press, 2017. http://dx.doi.org/10.1093/oso/9780190600471.003.0001.
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This chapter examines the nexus of gender, sex, and sin in early Jewish narrative, arguing that Bavli Gittin’s account of catastrophe reveals a strikingly different portrayal of sexual sin. Biblical narrative frequently uses pornographic portrayals of the female body to convey God’s punishment of Israel, figuring women’s “whoredom” as justification for divine violence and abandonment. The Palestinian midrash collection Lamentations Rabbah amplifies and intensifies such dynamics in key narratives of Jerusalem’s fall. Bavli Gittin, by contrast, studiously avoids associating destruction with women’s sexual sin. Instead, its tales emphasize the consequences of men’s sexual transgressions. But even as its narratives draw attention to male sexual sin, Bavli Gittin also portrays conquered men’s compromised bodies as stunning sites of sexual virtue, suggesting that men’s sexual piety might nonetheless serve an antidote to the violence and violation of the Jewish body amidst Roman conquest.
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Barducci, Marco. War, Resistance, Revolution. Oxford University Press, 2017. http://dx.doi.org/10.1093/oso/9780198754589.003.0003.
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This chapter examines the uses of Grotius’ resistance theory primarily based on the analysis of the natural right of punishment and the law of war devised in De Iure. After an outline of Grotius’ view of resistance, the chapter moves on to examine its multifaceted reception in England until after Locke’s re-elaboration in the Two Treatises of Government, during which time it provided an intellectual and legal groundwork for negotiation between Whigs and Tories around the exclusion of James II and the ascension of William and Mary. In this regard, Grotius not only brought to England a theory of conquest that filled a gap in the shared tradition of common law and ancient constitution, but his attempt to reconceptualize resistance theory in terms of just war fit particularly well in the justification both of the Republic in 1649 and of the Glorious Revolution.
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Swann, Julian. From Disgrace to Despotism. Oxford University Press, 2017. http://dx.doi.org/10.1093/acprof:oso/9780198788690.003.0012.
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Disgrace was the exercise of the sovereign will, usually independent of the regular judicial process, and it could be justified on the basis of both divine right and the ancient maxim that the king was the fount of all justice. Yet despite the emergence of a new model of disgrace in the seventeenth century, obedience did not necessarily mean acceptance. This chapter examines the progress of a parallel critique of the practice of disgrace founded on the law. From their inception, lettres de cachet were denounced as arbitrary, even despotic, and these ideas developed into a much broader critique of arbitrary punishment driven by judges and many victims of disgrace that by the reign of Louis XVI would lead to calls for their abolition. As this chapter demonstrates, the campaign for a French version of habeas corpus would sap the ideological justification of disgrace and prepare the ground for Revolution.
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Swann, Julian. Conclusion. Oxford University Press, 2017. http://dx.doi.org/10.1093/acprof:oso/9780198788690.003.0014.
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In the concluding chapter, the importance of political disgrace is examined in broader comparative perspective. The chapter argues that not only was there a distinct Bourbon ‘politics of disgrace’, but also that the concept is significant for the study of other early modern monarchies and other polities. Disgrace can be seen as a global phenomenon, as applicable to societies in Asia, Africa, and Latin America as it is to those in Europe, and one that transcends historical periods. There are histories of disgrace to be written for the classical medieval and modern periods, and arguably through the campaign against arbitrary punishment lessons for contemporary societies too. Disgrace was a justification for raison d’état, and in an era of ‘wars on terror’ the willingness of states to imprison without trial takes us back to the arguments of its seventeenth- and eighteenth-century opponents that without justice there can be no liberty.
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Skotnicki, Andrew. Conversion and the Rehabilitation of the Penal System. Oxford University Press, 2019. http://dx.doi.org/10.1093/oso/9780190880835.001.0001.
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The contemporary practice of criminal detention is a protracted exercise in needless violence predicated upon two foundational errors. The first is the inability to view those enmeshed in its rubrics and institutions as human beings fully capable of responding to an affirmative accompaniment rather than maltreatment and invasive forms of therapy. The second is a pervasive dualism that erects an illusory barrier between criminal detainees and those empowered to supervise, punish, and/or rehabilitate them. This book maintains that the criminal justice system can only be “rehabilitated” by eliminating punishment and policies based upon deterrence, rehabilitation, and the hyper-incapacitation of the urban poor in favor of the original justification for the practice of confinement: conversion. The latter will be presented as a progressive expansion of one’s intellectual, moral, and spiritual horizons that is self-generated and leads to the goal of including everyone and everything in a careful embrace.
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Pereboom, Derk. Wrongdoing and the Moral Emotions. Oxford University Press, 2021. http://dx.doi.org/10.1093/oso/9780192846006.001.0001.
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This book provides an account of how we might address wrongdoing given challenges to anger and retribution that arise from ethical considerations and from concerns about free will. It contends that we should dispense with basically deserved pain and harm, and with associated retributive sentiments. Without such desert, how might we understand blame? Blame can be conceived as taking on a non-retributive stance of moral protest, whose function is to secure forward-looking goals such as moral reform and reconciliation. Is it possible to justify effectively dealing with those who pose dangerous threats if they do not deserve to be harmed? Wrongfully posing such a threat, by contrast with deserving harm for posing the threat, is proposed as the core condition for the legitimacy of defensive harming. An account is then provided for addressing criminal behavior without a retributive justification for punishment, one in which the right of self-defense provides justification for measures such as preventative detention. How might we forgive if wrongdoers don’t basically deserve the pain of being resented, which forgiveness would then renounce? Forgiveness might instead be conceived as the renunciation of the stance of moral protest. But how might personal relationships function without retributive anger having a role in responding to wrongdoing? The stance of moral protest, together with non-retributive emotions, is argued to be sufficient. The book closes with a consideration of attitudes regarding the fate of humanity in a deterministic universe replete with wrongdoing, and defends the rationality of a transcendent hope for humanity.
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Dagger, Richard. Playing Fair. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780199388837.001.0001.
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Is there a general obligation to obey the laws of a reasonably just polity? Is there any justification for imposing suffering, in the form of punishment, on those who break the law? Political and legal philosophers have long debated these vexing questions, but the debates typically have taken up each question in isolation. Playing Fair, however, treats the two questions as intertwined and provides affirmative answers to both—answers grounded, in both cases, in the principle of fair play. According to this principle, those who are engaged in a mutually beneficial cooperative practice or enterprise have a duty to the cooperating participants to bear a fair share of the burdens of the practice. Applied to the political order, the principle holds that a reasonably just polity is a cooperative enterprise whose members receive benefits from the rule of law only because other members obey the law even when they find obedience burdensome. The members of a reasonably just polity thus have a political obligation, understood as a defeasible moral duty to obey the law, to one another. Those who break the laws fail to fulfill this obligation, and their failure justifies the law-abiding members, acting through the proper authorities, in punishing the lawbreakers. Rather than two separate problems, then, political obligation and punishment are two aspects of the same fundamental concern for sustaining a polity that its members can reasonably regard as a cooperative enterprise under the rule of law.
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Fassin, Didier. Why Does One Punish? Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780190888589.003.0004.
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Why do we punish? Two major justifications are generally provided. Utilitarianism aims at promoting social welfare by reducing crime. Retributivism seeks to inflict a pain equivalent to the offense committed. Empirical observations conducted in the street with the police, in court with judges, and in prison at disciplinary boards establish that there are many more actual reasons why punishment is inflicted on a person. However, these multiple rationales do not exhaust the explanation. As we are reminded by Nietzsche, there is a form of collective or individual pleasure in the act of punishing, which can account for ordinary as well as extraordinary forms of cruelty.
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Jerryson, Michael. Buddhist Traditions and Violence. Edited by Michael Jerryson, Mark Juergensmeyer, and Margo Kitts. Oxford University Press, 2013. http://dx.doi.org/10.1093/oxfordhb/9780199759996.013.0002.
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This chapter discusses the history of Buddhist traditions and violence, concentrating on the scriptural justifications, symbols, and actual manifestations of violence. It covers Theravada (Path of the Elders), Mahayana (Great Vehicle), and Vajrayana (Diamond Vehicle). Theravada scriptures present on occasion a categorical imperative to avoid violence. Mahayana scriptures condemn violence and hold murder as an unwholesome act (akushala). Vajrayana doctrine is perfused with texts and commentaries that reject the use of violence. The chapter then outlines the elements of violence with regard to war, punishment, and social control. Among the various examples in the scriptures lies one from its founder Siddhattha Gotama, who abandoned his own familial allegiance for the sake of reconciliation.
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Bowd, Stephen D. Civilians and Theories of War. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198832614.003.0005.
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Justifications for the killing of civilians by soldiers rested on an array of theological and legal texts elaborated from classical and medieval sources. These texts focused on the notion of war as a punishment for human sin, but also suggested that war was a just chastisement. Therefore, in the just war tradition writers paid more attention to the causes of war than to its conduct. It was only in a gradual and piecemeal fashion that some protection for groups of civilians, including women, clergy, and children, was developed. However, it was not until c.1700 that a more secular basis for understanding war emerged and began to replace the just war framework with an international law of war. Even then, the civilian did not fully emerge as a notionally protected figure.
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Guiney, Thomas. Getting Out. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198803683.001.0001.
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Getting Out explores the evolution of early release in England and Wales between 1960 and 1995. In the past three decades crime has become a highly contested political issue with implications for the humanity, fairness, and effectiveness of the criminal justice system. This book seeks to turn current crime debate on its head and examine the circumstances in which politicians and policy-makers have found it desirable to reduce the custodial element of a prison sentence and encourage the rehabilitation offenders in the community. Drawing upon a period of detailed archival research this book considers three critical moments of reform which have helped to shape the historical evolution of this secretive and little understood area of public policy. It argues that early release has always been bound up with prevailing societal justifications for punishment and the appropriate use of imprisonment within our liberal democratic system. It draws attention to the uneasy constitutional balance of power between the judiciary and the executive, and reflects upon the administrative task of governing large captive populations where the hopes and expectations of inmates do not always align with the interests of prison authorities or the community at large. This book challenges widespread assumptions about policy change and shows how the historical evolution of parole in England and Wales was shaped, to a significant degree, by the legacy of past political choices and the fluid balance of power within government.
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Roberts, Julian V., and Richard S. Frase. Paying for the Past. Oxford University Press, 2019. http://dx.doi.org/10.1093/oso/9780190254001.001.0001.
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Virtually all modern sentencing systems consider the offender’s prior record to be an important determinant of the form and severity of punishment, often carrying more weight than the crime being sentenced. Repeat offenders “pay for their past,” even though they have already been punished for their prior crimes. And the majority of sentenced offenders have at least one prior conviction. This topic thus lies at the heart of the sentencing process; every well-designed sentencing scheme needs to have a carefully conceived approach to the use of prior convictions. But the vast literature on sentencing policy, law, and practice has generally overlooked this issue. Moreover, the apparent justifications for prior record enhancement—the repeat offender’s assumed greater culpability and risk of re-offending—are uncertain, and have rarely been subjected to critical appraisal. Nor has sufficient attention been paid to the substantial negative consequences of such enhancements, which: increase the size and expense of prison populations; impose penalties disproportionate to offense severity; fill prisons with nonviolent and aging, lower-risk offenders; increase racial disproportionality in prison populations; and undermine offenders’ efforts to reintegrate into society. This book focuses on prior record enhancements under sentencing guidelines systems in the United States because sentencing rules operate more transparently in those systems. But the policy implications are much broader. Similar enhancements are informally applied, with substantial impacts, when judges sentence without guidelines. And most jurisdictions have statutes (three-strikes and career-offender laws; higher penalties for second and subsequent violations) that impose much more severe penalties on repeat offenders.