Hegelian restorative justice

In the Philosophy of Right, Hegel claims that crime is a negation of right and punishment is the “negation of the negation.” Punishment, for Hegel, “annuls” the criminal act. Many take it that Hegel endorses a form of retributivism—the theory that criminal offenders should be subject to harsh treatment in response and in proportion to their wrongdoing. Here I argue that restorative criminal justice is consistent with Hegel's remarks on punishment and his overall philosophical system. This is true, in part, because restorative justice integrates Hegel's instructive discussion of confession and forgiveness in the Phenomenology of Spirit. Hegel claims that true moral relationships allow space for persons to confess their moral shortcomings and forgive the shortcomings of others. Restorative criminal justice brings the perpetrators and victims of crime together to offer confessions and forgiveness and to work to heal the various wounds caused by crime. I do not claim that Hegel must be read as advocating restorative justice. While Hegel tells us what punishment does, he does not commit himself to any form of punishment. What I offer here is a rational, progressive reconstruction and extension of Hegel's conception of crime and punishment.     

Atonement Retributivism

In this article I will illustrate how concepts such as wrongdoing, guilt, remorse, penance, atonement, reconciliation, forgiveness and punishment are interlinked in a pattern which is reminiscent of the way pieces in a jigsaw puzzle are interlinked with each other. I would like to label this conceptual “puzzle” atonement retributivism. Atonement retributivism should not be regarded as a theory, justifying punishment. Rather, it is an illustration of a vocabulary which illuminates how deeply rooted punishment is in our moral lives. This illustration shows that classical and modern theories on punishment have redefined punishment in a way which tears it apart from its conceptual roots. One practical consequence of this philosophical mistake is that the moral aspects of punishment are not recognized by our modern legal system. Hence, punishment no longer serves as penance and thus has lost its moral content.     

Mixed Theories of Punishment and Mixed Offenders: Some Unresolved Tensions

Mixed theories of legal punishment treat both crime reduction and retributive concerns as irreducibly important and so worthy of inclusion in a single justificatory framework. Yet crime reduction and retributive approaches employ different assumptions about the necessary characteristics of those liable to punishment. Retributive accounts of legal punishment require offenders to be more responsive to moral considerations than do crime reduction accounts. The tensions these different assumptions create are explored in the mixed theories of John Rawls, H. L. A. Hart, and Andrew von Hirsch. It is argued that none of these theories successfully resolve the tensions. The prospects for resolving them are then discussed.     

Is Corporal Punishment Torturous?

The aim of this article is to determine whether fixed courses of judicial corporal punishment (JCP) and non‐abusive corporal punishment of children (CPC) amount to torture. I assess the reasons that have been offered for distinguishing fixed courses of JCP from torture and argue that none is successful. I argue that non‐consensual JCP that inflicts severe pain is appropriately classifiable as torture, but that JCP that inflicts mild pain and entirely consensual JCP are not torturous. I consider whether any of the reasons offered for distinguishing JCP from torture can distinguish non‐abusive CPC from torture given certain important differences between CPC and JCP. I submit that none of these reasons is successful. I consider other possible reasons for distinguishing non‐abusive CPC that inflicts severe pain from torture and argue that none is successful. I conclude that fixed courses of non‐consensual JCP which inflict severe pain and non‐abusive CPC that inflicts severe pain are correctly classifiable as torture.     

Epistemic Side Constraints and the Structure of Epistemic Normativity

In this paper, I develop the notion of an epistemic side constraint in order to overcome one of the main challenges to a goal‐based approach to the structure of epistemic normativity. I argue that the rationale for such side constraints can be found in the work of John Locke and that his argument is best understood as the epistemic analog to David Gauthier's argument as to the rationality of being moral.     

PUNISHMENT - A TALE OF TWO ISLANDS

An imaginary desert island scenario provides the setting for a story which is designed to expose the shortcomings of deterrence, reform and restitution theories of punishment, and to emphasize the intuitive appeal of Kant's strong retributivist insistence that there is a positive obligation to punish offenders just qua offenders, and not merely an automatic right to do so (weak retributivism). Nevertheless, it is urged that though the fact that an offence has been committed can in itself suffice to establish that punishment is in some sense required, this requirement at most supports a position that is intermediate between Kantian retributivism and weak retributivism.     

Kantian Moral Retributivism: Punishment,Suffering, and the Highest Good

Against the view of some contemporary Kantians who wish to downplay Kant's retributivist commitments, I argue that Kant's theory of practical of reason implies a retributive conception of punishment. I trace this view to Kant's distinction between morality and well‐being and his attempt to synthesize these two concerns in the idea of the highest good. Well‐being is morally valuable only insofar as it is proportional to virtue, and the suffering inflicted on wrongdoers as punishment for wrongdoing is morally good so long as it is proportional to the wrongdoing. According to Kantian retributivism, punishment is warranted as a means to promote proportionality between well‐being and virtue.     

Punishment,Consent and Value

In this paper I take another look at the view, defended by C. Nino, that we may punish criminals because, by knowingly breaking a law, they have consented to becoming liable to the prescribed punishment. I will first rebut the criticisms usually aimed at this view in the literature, aiming to show that they are inconclusive. They are all efforts to show that criminal offenders in fact do not consent to becoming liable to punishment simply by committing crimes. I then turn to a different line of criticism, which I find more promising. I argue that the moral power of effecting normative changes by consenting reflects the power holder’s value as a person, and show how this idea makes sense of how refusal to recognize that power wrongs a person. I then argue that the “power” of consenting to punishability does not fit that model, and is better explained as reflecting the value of other people, whom the offender has wronged. Hence the power of consenting is not involved in typical cases of wrongdoing.     

The Importance of Philosophy: Reflections on John Rawls

This paper tackles the question whet her we should punish a remorseful offender. Traditional retributive and consequentialist theories on punishment are struggling with the question of the justification of punishment, but I think a more basic question needs to be solved first; namely, how can we interpret the practice of punishment. I state that a theory of symbolic restoration can help us to understand the meaning of this practice. A theory of symbolic restoration depends on an expressivist account of punishment, like Joel Feinberg's. Expressivism gives us an insight into the importance of the feeling of moral condemnation and it is this feeling that gives rise to the longing for punishment and remorse. Because of moral condemnation after a crime we ask for punishment and expect some kind of remorse. The question is whether punishment can be exchanged for remorse and I argue that in certain cases it cannot. The punishment of a remorseful offender is, I argue, – in certain cases – justified.     

PRE‐PUNISHMENT,COMMUNICATIVE THEORIES OF PUNISHMENT,AND COMPATIBILISM

Saul Smilansky holds that there is a widespread intuition to the effect that pre‐punishment – the practice of punishing individuals for crimes which they have not committed, but which we are in a position to know that they are going to commit – is morally objectionable. Smilanksy has argued that this intuition can be explained by our recognition of the importance of respecting the autonomy of potential criminals. ( Smilansky, 1994 ) More recently he has suggested that this account of the intuition only vindicates it if determinism is false, and argues that this presents a problem for compatibilists, who, he says, are committed to thinking that the truth of determinism makes no moral difference ( Smilansky, 2007 ). In this paper I argue that the intuitions Smilansky refers to can be explained and vindicated as consequences of the truth of a communicative conception of punishment. Since the viability of the communicative conception does not depend on the falsity of determinism, our intuitions about pre‐punishment do not clash with (what Smilanksy calls) compatibilism. And if the communicative theory of punishment is – as Duff (2001 ) suggests – a form of retributivism, the account also meets New's (1992 ) challenge to retributivists to explain what is wrong with pre‐punishment.     

Reid's Non‐Humean Theory of Moral Motives

Contrary to the widespread view that Reid and Hume agree that reason, alone, is inert, I argue that they disagree on this point. Both accept that reason plays a role in forming moral sentiments, and that affections are components of moral evaluations. However, I show that for Reid moral evaluations (comprised of moral judgments and moral affections) are different from moral motives (which are not comprised of affections). Moral motives for Reid are mind‐independent states of affairs that are grasped by reason and do not require affections to influence human beings. Reid hence holds a non‐Humean theory in which reason, alone, is not inert.     

BLAME AND RESPONSIVENESS TO MORAL REASONS: ARE PSYCHOPATHS BLAMEWORTHY?

Abstract: Many philosophers believe that people who are not capable of grasping the significance of moral considerations are not open to moral blame when they fail to respond appropriately to these considerations. I contend, however, that some morally blind, or ‘psychopathic,’ agents are proper targets for moral blame, at least on some occasions. I argue that moral blame is a response to the normative commitments and attitudes of a wrongdoer and that the actions of morally blind agents can express the relevant blame‐grounding attitudes insofar as these agents possess the capacity to make judgments about non‐moral reasons.     

Retributive Parsimony

Retributive approaches to the justification of legal punishment are often thought to place exacting and unattractive demands on state officials, requiring them to expend scarce public resources on apprehending and punishing all offenders strictly in accordance with their criminal ill deserts. Against this caricature of the theory, I argue that retributivists can urge parsimony in the use of punishment. After clarifying what parsimony consists in, I show how retributivists can urge reductions in the use of punishment in order to conserve scarce resources for other valuable social purposes, minimize the foreseeable and adverse effects of legal punishment on the innocent, and accommodate the fact that existing societies fail in numerous ways to satisfy the conditions that make retributive punishment fully justified.     

Moral Individualism,Moral Relationalism,and Obligations to Non‐human Animals

Moral individualists like Jeff McMahan and Peter Singer argue that our moral obligations to animals, both human and non‐human, are grounded in the morally salient capacities of those animals. By contrast, what might be called moral relationalists argue that our obligations to non‐human animals are grounded in our relationship to them. Moral relationalists are of various kinds, from relationalists regarding assistance to animals, such as Clare Palmer and Elizabeth Anderson, to relationalists grounded in a Wittgensteinian view of human practice, such as Cora Diamond and Alice Crary. This article argues that there are, in fact, two distinct types of moral reasons, those based on salient capacities and those based on relationships. Neither type of reason is reducible to the other, and there is no third type to which to reduce them both. Any attempt at reduction would run counter to deep intuitions about our moral relation to non‐human animals as well as to other humans. Among the implications of this is that certain kinds of arguments, such as the argument from marginal cases, seem to be incomplete precisely because they do not capture the complexity of our moral relations to non‐human animals.     

The Significance of Significant Fundamental Moral Disagreement1

This paper has four parts. In the first part I argue that moral facts are subject to a certain epistemic accessibility requirement. Namely, moral facts must be accessible to some possible agent. In the second part I show that because this accessibility requirement on moral facts holds, there is a route from facts about the moral disagreements of agents in idealized conditions to conclusions about what moral facts there are. In the third part I build on this route to show that (*) if there is significant moral disagreement in idealized conditions, then our understanding of morality is fatally flawed and we should accept relativism over non‐naturalism and quasi‐realism. So, if, like many, you think that there would be significant moral disagreement in idealized conditions, you should hold that our understanding of morality is fatally flawed and reject non‐naturalism and quasi‐realism. In the fourth part of this paper I show that (*) undermines the plausibility of non‐naturalism, quasi‐realism, and the view that our understanding of morality is not fatally flawed even if we do not have sufficient reason to believe that there would be significant moral disagreement in idealized conditions.     

Reactions to youth crime: perceptions of accountability and competency

Recent changes in juvenile justice policies have stimulated debate among legal professionals and social scientists. As such, public opinion concerning juvenile offenders is an important and timely topic for empirical study. In the present study, respondents read a scenario about a juvenile who committed a crime, and then decided on a sentence and rated perceptions of the juvenile's accountability and legal competence. Four between-subject factors were manipulated: age of the defendant (11 versus 14 versus 17 years), type of crime (shooting versus arson), crime outcome (victim injured versus died), and time delay between the instigating incident and the crime (immediately versus one day). The type and outcome of the crime were major motivating factors in sentencing decisions and perceptions of legal competence, and, although younger offenders were seen as less accountable and less competent than older offenders, sentence allocation and attitudes towards punishment were not significantly affected by offender age.     

War Crimes and Expressive Theories of Punishment: Communication or Denunciation?

In a paper published in 2006, I argued that the best way of defending something like our current practices of punishing war criminals would be to base the justification of this practice on an expressive theory of punishment. I considered two forms that such a justification could take—a ‘denunciatory’ account, on which the purpose of punishment is supposed to communicate a commitment to certain kinds of standard to individuals other than the criminal and a ‘communicative’ account, on which the purpose of the punishment is to communicate with the perpetrator, and argued for a denunciatory account which I developed at some length. In this paper I would like to reconsider the plausibility of a communicative account. One difficulty that such accounts face is that the punishment of war criminals often involves the inflicting of harsh treatment on them by individuals who are members of states other than their own. On a communicative account this is problematic: on such an account—or at least on the version of it proposed by Duff (2000)—it is essential that those who are punish and those who punish them belong to a single community. When this requirement is not satisfied harsh treatment does not constitute punishment. Duff has argued that the problem can be solved by regarding all human beings as members of a single moral community: here I argue that this suggestion is unsatisfactory and propose an alternative. One consequence of my account is that if it is correct there may limitations on the range of kinds of war criminal that can legitimately be punished by international tribunals.     

Harm in the Wild: Facing Non-Human Suffering in Nature

The paper is concerned with whether the reductio of the natural-harm-argument can be avoided by disvaluing non-human suffering and death. According to the natural-harm-argument, alleviating the suffering of non-human animals is not a moral obligation for human beings because such an obligation would also morally prescribe human intervention in nature for the protection of non-human animal interests which, it claims, is absurd. It is possible to avoid the reductio by formulating the moral obligation to alleviate non-human suffering and death with two constraints: The first concerns the practicability of intervention and establishes a moral obligation to intervene only in cases where this is humanly possible. The other constraint acknowledges that lack of competence in humans can risk producing more harm than good by intervening. A third way of avoiding the problematic version of the natural-harm-argument considers whether human and non-human suffering and death are sufficiently different to allow different types of responses. I argue that the attempt to avoid the reductio of the natural-harm-argument by disvaluing non-human death can only work with an anthropocentric bias, which accords to non-human suffering and death a fundamentally different value and that it fails to dismiss the moral obligation created by the harm that non-human animals face in the wild.     

Scientific Explanation and Moral Explanation*

Moral philosophers are, among other things, in the business of constructing moral theories. And moral theories are, among other things, supposed to explain moral phenomena. Consequently, one's views about the nature of moral explanation will influence the kinds of moral theories one is willing to countenance. Many moral philosophers are (explicitly or implicitly) committed to a deductive model of explanation. As I see it, this commitment lies at the heart of the current debate between moral particularists and moral generalists. In this paper I argue that we have good reasons to give up this commitment. In fact, I show that an examination of the literature on scientific explanation reveals that we are used to, and comfortable with, non‐deductive explanations in almost all areas of inquiry. As a result, I argue that we have reason to believe that moral explanations need not be grounded in exceptionless moral principles.     

Empirical Vindication of Moral Luck

In resultant moral luck, blame and punishment seem intuitively to depend on downstream effects of a person’s action that are beyond his or her control. Some skeptics argue that we should override our intuitions about moral luck and reform our practices. Other skeptics attempt to explain away apparent cases of moral luck as epistemic artifacts. I argue, to the contrary, that moral luck is real—that people are genuinely responsible for some things beyond their control. A partially consequentialist theory of responsibility justifies moral luck. But this justification is no mere rationalization of the status quo. Recent experimental and evolutionary work on punishment and learning suggests that the very same reasons that justify moral luck have also shaped the evolution of our luck‐sensitive moral practices.