The Philosophy of Joel Feinberg*

This paper is offered as a tribute to Joel Feinberg. The first section of the paper applies Feinberg’s analysis of freedom of expression to a contemporary case of academic freedom. The second section engages Feinberg’s work on rights and punishment. The paper ends with numerous quotations from Feinberg’s vast array of writings, words that express his ideas on a number of important problems that occupied his mind throughout his fruitful and influential career.     

Retributivism and Multiple Offending

This article addresses the question of how multiple offenders – that is, offenders who have committed more than one crime before they are apprehended – should be punished from a retributivist point of view. Two theories are evaluated, both defending the view that there should be a bulk discount for multiple offending. According to the first theory, a bulk discount follows from the idea of a punishment ceiling for types of crimes and the principle of parsimony in punishing. According to the second, the discount follows from a certain view on mercy. However, it is argued that both theories suffer from theoretical flaws and that they are also insufficient in practical terms. That is, they fail to provide a basis for the making of decisions about how multiple-offence cases should be dealt with by the criminal justice system.     

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.