Is penal substitution unjust?

Penal substitution in a theological context is the doctrine that God inflicted upon Christ the suffering which we deserved as the punishment for our sins, as a result of which we no longer deserve punishment. Ever since the time of Faustus Socinus, the doctrine has faced formidable, and some would say insuperable, philosophical challenges. Critics of penal substitution frequently assert that God’s punishing Christ in our place would be an injustice on God’s part. For it is an axiom of retributive justice that it is unjust to punish an innocent person. But Christ was an innocent person. Since God is perfectly just, He cannot therefore have punished Christ. Virtually every premiss in this argument is challengeable. Not all penal substitution theories affirm that Christ was punished for our sins. The argument makes unwarranted assumptions about the ontological foundations of moral duty independent of God’s commands. It presupposes without warrant that God is by nature an unqualified negative retributivist. It overlooks the possibility that the prima facie demands of negative retributive justice might be overridden in Christ’s case by weightier moral considerations. And it takes it for granted that Christ was legally innocent, which is denied by the classic doctrine of imputation. It thus fails to show any injustice in God’s punishing Christ in our place.     

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.     

Criminal Attempts and the Penal Lottery

In most penal systems, success is punished more than failure. For example, murder is punished more severely than attempted murder. But success or failure is often determined by luck. It thus appears that punishment is allotted on the basis of arbitrary factors. The problem of criminal attempts is the question of how to best resolve this apparent tension. One particularly sophisticated attempt at resolution, first developed by David Lewis, holds that such differential punishment is not unjust when understood as a natural penal lottery. What is most interesting about this view is that it does not appear to involve a commitment to resultant moral luck. I argue that the natural penal lottery fails to deliver justice. Upon analysis, it carries the same implication that it sought to avoid—namely, a commitment to resultant moral luck. I then argue that there can be, in principle, no penal lottery that delivers justice, natural or otherwise.     

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.     

Some Surprising Implications of Negative Retributivism

Negative retributivism is the view that though the primary justifying aim of legal punishment is the reduction of crime, the state's efforts to do so are subject to side‐constraints that forbid punishment of the innocent and disproportionate punishment of the guilty. I contend that insufficient attention has been paid to what the side‐constraints commit us to in constructing a theory of legal punishment, even one primarily oriented toward reducing crime. Specifically, I argue that the side‐constraints limit the kinds of actions that are appropriately criminalised, the kinds of beings who are appropriately liable to legal punishment, and the absolute and comparative severity of sanctions. I also argue that a third retributive constraint is needed, one which I term a ‘non‐degradation constraint’. According to this third constraint, in our efforts to reduce crime, we must avoid treating offenders as non‐moral beings and ensure that punishment does not atrophy or erode the complex capacity for moral responsibility. When this third constraint is combined with the persuasive instrumental case for promoting the moral responsiveness of offenders, the result is an approach to crime reduction that is quite different from ones which emphasise general deterrence and incapacitation. In the closing section, I broach the question whether negative retributivism has been appropriately characterised in the literature on legal punishment.     

Legal Punishment and the Public Identification of Offenders

In the United States, the identities of criminal offenders are matters of public record, accessible to prospective employers, the press, and ordinary citizens. In European countries, the identities of offenders are routinely kept hidden, with some exceptions. The question addressed in this discussion concerns whether the public disclosure of the identities of offenders is part and parcel of their legal punishment. My contentions are that public disclosure is not conceptually part of legal punishment, necessary to serve substantive penal aims, or likely to enhance penal aims. At times, it will conflict with defensible aims of legal punishment. Other values might support or require the public identification of criminal offenders, but the aims of legal punishment do not appear to do so.     

Punishing hypocrisy: The roles of hypocrisy and moral emotions in deciding culpability and punishment of criminal and civil moral transgressors

Three experiments explored how hypocrisy affects attributions of criminal guilt and the desire to punish hypocritical criminals. Study 1 established that via perceived hypocrisy, a hypocritical criminal was seen as more culpable and was punished more than a non-hypocritical criminal who committed an identical crime. Study 2 expanded on this, showing that negative moral emotions (anger and disgust) mediated the relationships between perceived hypocrisy, criminal guilt, and punishment. Study 3 replicated the emotion finding from Study 2 using new scenarios where group agents were clearly aware of the hypocrisy of their actions, yet acted anyway. Again, perceived hypocrisy worked through moral emotions to affect criminal guilt and punishment. The current studies provide empirical support for theories relating hypocrisy and moral transgressions to moral emotions, also informing the literature on the role of moral emotions in moral reasoning and legal decision making.     

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.     

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.     

Punishing Repeat Offenders in the Netherlands: Balancing between Incapacitation and Treatment

In the Netherlands, punishing repeat offenders is not a foregone conclusion. After a decades-long search for an appropriate punishment, repeat offenders are currently punished by means of a custodial security measure. A custodial security measure is additional incarceration often beyond the original penalty. This new penal measure can be imposed for a maximum of 2 years, and is designed to ensure public safety and reduce recidivism by way of incapacitation. However, given the fact that nearly every repeat offender suffers from severe comorbid problems (e.g., a mental illness and substance abuse disorder), judges tend to consider these objectives from a long-term perspective by insisting on as much treatment during detention as possible. Consequently, the punishment for repeat offenders balances between incapacitation and treatment. While some have argued that the current Dutch sentencing scheme represents a new way of sentencing, this article demonstrates that the reliance on the sometimes dichotomous goals of punishment and rehabilitation is characteristic not only of the current type of repeat offender punishment, but of all previous types as well. Copyright © 2015 John Wiley & Sons, Ltd.     

信念与结果对道德、法律责任判断的影响

在"执行者"和"旁观者"两个情境中,通过操纵当事人的信念和事件结果,考察了被试的道德与法律责任判断。结果显示:进行道德责任判断时,被试对当事人的信念信息更敏感;进行法律责任判断时,则对事件结果的信息更敏感。"执行者"情境中的道德和法律责任评分均高于"旁观者"情境中的责任评分。这说明道德、法律责任判断的内部机制有所不同,并且当事人的不同角色导致第三方对其的责任判断出现差异。     

Trading Truth for Justice?

In this article I pursue two aims. First I advance an internal critique of hard-core retribution as it is usually advanced by victims of human rights violations. The focus of this penal approach on submitting all the military personnel guilty of human rights violations to harsh punishments risks jeopardizing the (clearly retributive) demand of punishing all those involved in the abuses. Particularly when extensive time has elapsed after the misdeeds, the most rational policy seems to be a negotiation model that offers gross human rights abusers punishment reductions in exchange for valuable information about the facts. Defending such a penal negotiation model constitutes the second aim of this article. I conclude that in order to satisfy the (hard-core) retributive demand of punishing all those (both military and civilian) guilty of human rights abuses, it is required not to submit all military personal indicted to retributive punishments.     

Revenge without responsibility? Judgments about collective punishment in baseball

Many cultures practice collective punishment; that is, they will punish one person for another's transgression, based solely on shared group membership. This practice is difficult to reconcile with the theories of moral responsibility that dominate in contemporary Western psychology, philosophy and law. Yet, we demonstrate a context in which many American participants do endorse collective punishment: retaliatory “beaning” in baseball. Notably, individuals who endorse this form of collective punishment tend not to hold the target of retaliation to be morally responsible. In other words, the psychological mechanisms underlying such “vicarious” forms of collective punishment appear to be distinct from the evaluation of moral responsibility. Consequently, the observation of collective punishment in non-Western cultures may not indicate the operation of fundamentally different conceptions of moral responsibility.     

Sex crimes and the new punitiveness

In the last few years, new ways of punishing sex offenders have been introduced in many modern societies. However, these sanctions have a broader significance than this: they are part of a broader set of penal arrangements-directed at the criminal population as a whole-which represents a new punitiveness. This seems to be moving the direction of legal punishment beyond the established parameters that had hitherto been set for it in modern society. This had involved punishment becoming increasingly administered by penal bureaucracies, to the exclusion of the general public, being influenced by the opinion of penal experts, and becoming more tempered, consistent and purposeful in form. Sanctions that did not fit these criteria faded out of modern penality. The indeterminate prison sentence was introduced at its outer limits as a residual measure of control to be used against those offenders-frequently sex criminals-for whom the existing penal framework was thought inappropriate. Even so, by the 1970s, these special penal measures were falling into disuse. However, the new punitiveness has not only given new life to them, but has also led to the introduction of measures which seem to reverse or move beyond modernpenal parameters. The article argues that the reasons for these shifts lie in the profound economic and social changes that have taken place in Western societies over the course of the last two decades or so.     

A Strawsonian look at desert

P.F. Strawson famously argued that reactive attitudes and ordinary moral practices justify moral assessments of blame, praise, and punishment. Here we consider whether Strawson's approach can illuminate the concept of desert. After reviewing standard attempts to analyze this concept and finding them lacking, we suggest that to deserve something is to justifiably receive a moral assessment in light of certain criteria – in particular, eligibility criteria (a subject's properties that make the subject principally eligible for moral assessments) and assignment criteria (particulars about the subject, act, and circumstances that justify assessments such as blame in a particular case). Strawson's analysis of the ordinary attitudes and practices of moral assessment hints at these criteria but does not unequivocally ground a notion of desert. Following Strawson's general naturalistic approach, we show that recent psychological research on folk concepts and practices regarding freedom, moral responsibility, and blame illuminates how people actually arrive at moral assessments, thus revealing the very eligibility criteria and assignment criteria we suggest ground a concept of desert. By pushing the Strawsonian line even further than Strawson did, by empirically investigating actual moral practice and folk understandings, we can illuminate desert and lend credence to Strawson's general anti-metaphysical position.     

Beyond the Individual: Sources of Attitudes Towards Rule Violation in Sport

Today, certain rule-violating behaviours, such as doping, are considered to be an issue of concern for the sport community. This paper underlines and examines the affective dimensions involved in moral responses to, and attitudes towards, rule-violating behaviours in sport. The key role played by affective processes underlying individual-level moral judgement has already been implicated by recent developments in moral psychological theories, and by neurophysiological studies. However, we propose and discuss the possibility of affective processes operating on a social level which may influence athletes' individual-level attitudes. We conclude that one-sided focus on individual rule-violating behaviour and individual sanctions may prove to be ineffective in coming to terms with the issue. In this regard we recommend a twofold approach by addressing underlying social dimensions, along with preventive measures through affect-oriented education.     

A cybernetic theory of morality and moral autonomy

Human morality may be thought of as a negative feedback control system in which moral rules are reference values, and moral disapproval, blame, and punishment are forms of negative feedback given for violations of the moral rules. In such a system, if moral agents held each other accountable, moral norms would be enforced effectively. However, even a properly functioning social negative feedback system could not explain acts in which individual agents uphold moral rules in the face of contrary social pressure. Dr. Frances Kelsey, who withheld FDA approval for thalidomide against intense social pressure, is an example of the degree of individual moral autonomy possible in a hostile environment. Such extreme moral autonomy is possible only if there is internal, psychological negative feedback, in addition to external, social feedback. Such a cybernetic model of morality and moral autonomy is consistent with certain aspects of classical ethical theories.     

先秦法律观念的德治特色

德治观念是中国早期国家的主要观念,浸染于其中的法律观念也带上了浓郁的德治特色,先教后刑、“刑期于无刑”、“以伐辅德”均是这一特色的体现。此外,伦理观念与法律的结合及对德、刑的灵活运用,也是先秦法律观念的重要特点,而这一特色最终也影响了民族性格的形成。     

Father Knows Best: Parishes, Priests, and American Catholic Parishioners' Attitudes Toward Capital Punishment

Public opinion has important implications for capital punishment in the United States. Such opinion formation involves moral judgments irreducible to processing information on the administration of capital punishment or sentencing alternatives. Religious communities play a crucial role in resolving such moral dilemmas and giving meaning to available information. The Catholic Church strongly opposes capital punishment and strives to instruct lay Catholics on this issue. Accordingly, church attendance is associated with less support of the death penalty among Catholics but not among non-Catholics in the general population. Politically and socially conservative Catholic parishioners are more supportive of such punishment, while more religious parishioners report less such support. Parish priests significantly influence death penalty attitudes, in particular among more spiritual parishioners. Black Catholics are more supportive of the death penalty than their non-Catholic counterparts, in part because of a convergence in death penalty attitudes between blacks and whites in predominantly black parishes.     

Punishing the innocent — unintentionally

The intentional punishment of the innocent is ordinarily claimed to be a special problem for utilitarian theories of punishment. The unintentional punishment of the innocent is a problem for any theory of punishment which holds that the guilty should be punished. This paper examines the criteria that are relevant to a determination of the appropriate probability of punishment mistakes for a society, and argues that this is the kind of moral problem for which utilitarian judgments, as opposed to considerations of justice, are most appropriate. To illustrate some of the trade‐offs involved, the paper employs some hypothetical data.