Correction to: On Economic Theories of Criminal Punishment: Pricing, Prevention, or Proportionality?

Previous articleNext article FreeBook ReviewsWringe, Bill. An Expressive Theory of Punishment.London: Macmillian, 2016. Pp. 186. $99.00 (cloth).K. L. SifferdK. L. SifferdElmhurst College Search for more articles by this author PDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinked InRedditEmailQR Code SectionsMoreTheories of punishment operate at different levels: they can provide a justification for the practice of state-imposed punishment, and they may also explore certain aims or purposes of punishment, which are typically thought to depend on some broader justification. A justification for punishment generally provides good reasons why society is warranted in denying offenders liberties, or imposing other harm, in response to certain acts. Such justificatory theories tend to be either forward looking (e.g., consequentialist) or backward looking (e.g., legal moralism), or they might represent some hybrid of forward- and backward-looking justifications. Specific aims or purposes that might be achieved via imposition of punishment include delivering to offenders their “just deserts” (where this aim may be justified as a means to apply blame to an offender for an immoral act) or deterring, incapacitating, and rehabilitating potential offenders (where these aims may be justified via their good consequences; e.g., lower crime rates).This book represents Bill Wringe’s comprehensive expressivist theory of punishment. The expressivist about punishment claims that it is essential to an act’s constituting punishment that it expresses social disapproval (see Joel Feinberg, “The Expressivist Function of Punishment,” Monist 49 [1965]: 397–423; Antony Duff, Punishment, Communication, and Community [Oxford: Oxford University Press, 2003]). Expressivist theories of punishment do not fit neatly within the above schema: it often is not clear whether an expressivist theory is offered as a justification for punishment or as an account of a particular purpose of punishment. This is true of Wringe’s book. There are moments in the book when Wringe seems to be offering a justification for punishment, and others have interpreted his project in this book as a justification (see, e.g., Ambrose Y. K. Lee’s review of An Expressive Theory of Punishment, in Philosophical Quarterly [2016], published online April 7). However, Wringe says he is “not attempting to provide anything that might be an expressive justification of punishment” (18) and that “we need not assume that on a denunciatory [expressivist] account, punishment can have no other goals than that of expressing a message of a particular sort” (103).In the end, the success of Wringe’s theory depends on how broadly we interpret it. As a detailed defense of expressivism as one aim or purpose of punishment, the book is very successful: Wringe’s arguments for denunciatory expressivism are clearly articulated, persuasive, and well defended. However, Wringe does not provide a broad justification of state-imposed punishment of offenders. Thus, it would have been helpful for Wringe to make clear the way his theory interacts with justifications and other purposes of punishment.The first half of the book (chaps. 1–4) defends the way in which Wringe’s particular theory, ‘denunciatory’ expressivism, handles paradigmatic cases of punishment as compared to nonexpressivists and other versions of expressivism. The second half (chaps. 4–8) discusses several difficult cases for any theory of punishment from the perspective of this theory, including whether “perp walks” (humiliating treatment of putative offenders before trial) constitute punishment (chap. 5) and whether corporations and states can be punished (chaps. 7 and 8).The traditional contemporary conception of punishment can be traced back to H. L. A. Hart, who defined punishment as harsh treatment, inflicted on an offender by one with appropriate authority, in response to some wrongdoing (Punishment and Responsibility [Oxford: Clarendon, 1968]). Expressivist theories tend to accept this traditional conception but add a further condition that the punishment communicate something to the offender or society (94–95). Wringe’s expressivism departs from the views of another prominent expressivist theorist, Antony Duff. Duff argues that the audience of punishment’s expression of disapproval is the offender him- or herself, with the aim of inducing remorse or regret (Punishment, Communication, and Community). Wringe instead argues that the audience at which our expressive acts of punishment are aimed is the community in which both offender and victim are members, arguing that within such groups “membership in the community is something it makes sense for individuals to value” (13). Punishment sends a message of disapproval to the community that “certain norms are in force and that transgressions against them are viewed seriously” (24). Hence, the ‘denunciatory’ label.One worry about expressivism is that it may treat offenders as a means to an end (39), a criticism also often lobbed at consequentialist justifications of punishment. Wringe responds to this challenge by arguing that on his version of expressivism, an offender is addressed by the state not qua offender but qua citizen (58). The message communicated is that the offender has committed a particular crime and thus has acted wrongly (60). In addressing an offender as a citizen, a state—conceived as a body of individuals who have undertaken a joint commitment—emphasizes to the offender and society that he is “one of us” with societal commitments (64). Because punishment is aimed at sending a message to a group to which the offender is a member, sending that message via punishment of that offender ought not to be seen as using him as a means to an end.Wringe addresses two other major challenges to expressivist views of punishment—the “harsh treatment” and “publicity” challenges. The harsh treatment challenge rests on the notion that, all things being equal, treating other people harshly, such that they are likely to suffer, is wrong. Thus, the specific harm caused to offenders by the state in the name of punishment must be justified. On retributive notions of punishment, the state may claim that it can cause such harm because an offender deserves to suffer in response to the moral wrong she has committed. Wringe argues that punishment must consist in harsh treatment to communicate to society that violation of norms is taken seriously; however, he argues that delivering such harsh treatment does not necessarily involve acting with the intention of harming the offender, as some theories of punishment claim (19, citing David Boonin, The Problem of Punishment [Cambridge: Cambridge University Press, 2008]). Wringe thus attempts to avoid the task of having to justify punishment as state action expressly aimed at harming offenders: although it is not incidental that punishment imposes suffering, it need not involve intentional infliction of suffering—this is not its aim. Instead, persons who are punished suffer not because this is a necessary part of punishment but due to the “normal and foreseeable workings of our penal institutions,” because the expressive aim of punishment cannot be achieved in ways which do not involve some level of suffering (20). For Wringe, the harm caused to offenders in the process of expressing disapproval via punishment is just a necessary but somewhat unfortunate side effect (86–87).Here again Wringe wants to distinguish himself from Antony Duff’s version of expressivism, which holds that the suffering caused by punishment is justified at least in part as communication aimed at offenders with the hope of prompting remorse and reconciliation (71). Duff’s theory runs into the problem of unreceptive offenders—those who are unable or unwilling to grasp the message punishment is intended to communicate and thus will not experience remorse (81). On Duff’s theory, punishment in the case of the unreceptive offender will have failed, but on Wringe’s theory, if the state fails to cause suffering in a particular offender via her punishment, the punishment itself has not necessarily failed, precisely because the punishment can still communicate something to society. This is an important payoff of Wringe’s denunciatory theory. There are offenders who do not internalize the law in H. L. A. Hart’s sense—who feel so disenfranchised by American society that they do not feel the law gives them reasons to act or refrain from acting. And there are offenders for whom jail or prison are an improvement over their lives on the “outside,” and thus their punishment of incarceration may be seen as a benefit, not a harm. In these cases, Wringe may hold that a message regarding the importance of certain norms can still be successfully delivered and thus avoid the project of having to promote new sorts of punishment that may be experienced as harsh by unrepentant offenders such that they may feel remorse.In the second half of the book, Wringe uses his denunciatory expressivism to analyze several sticky cases of punishment, including “perp walks” (chap. 5), war crimes (chap. 6), and punishment of corporations (chap. 7) and states (chap. 8). These chapters generate mixed results. Although I appreciated the way in which application to a specific state action—the treatment of offenders after arrest but before trial—helped solidify aspects of the theory in my mind, I was not convinced that perp walks ought to be considered unjustified punishment, as Wringe argues. Neither was I convinced that his theory can give a clean account of punishment of actors who commit war crimes or states that violate international law. The reason why corporations may be successfully punished, but not states, is because there are good arguments that at least some corporations are members of a society (e.g., a society where they are legally incorporated and use laws and the court system to their benefit). Punishment of corporations may indeed express a message about the seriousness with which society views violation of certain norms by a corporation that is a member of that society. However, Wringe did not convince me that there is an identifiable society to which punishment may speak in the case of nation-states—the international community is too nebulous, and state ties to international law are too weak.Much of what is written here has been published as journal articles or book chapters elsewhere. This is a negative aspect of the book: given that many readers can now find electronic papers via Google Scholar or the Philosophical Underclass, a book is really only a wise investment if it contains a decent cache of new material. And there are some issues with the way in which the previously published material is pieced together. There is some repetitiveness between the chapters and a few weird moments when the author seems to be confused with regard to which instance of punishment he is discussing: for example, on page 133, he refers to punishment of the state, although the issue at hand in the chapter is the punishment of business corporations.These blemishes aside, the book has a nice flow and is methodically and persuasively argued—it is a very nice example of contemporary analytic social political philosophy, in which even the purpose of conceptual analysis is defended before Wringe is willing to push his argument further (5–8). It was especially nice to read a book on such a complex issue that delves deeply into the relevant literature but does not get mired in it; instead, Wringe swiftly addresses counterarguments and then continues to move the ball forward, so the reader never gets lost in the argument.I think the tone of a philosopher’s argument is an underappreciated facet of philosophical writing: it can make a difference to the reader’s willingness to plod on and receptiveness to a philosophical theory. Wringe’s tone is friendly and helpful. One can easily imagine sitting and having a collegial conversation with him. The way he discusses other theories makes clear that he refuses to set up straw men; he responds kindly and thoroughly to imagined objections. Wringe’s clear and conversational style of writing reminds me of those great philosophers beloved by undergraduates and nonphilosophers for their ability to deliver complex ideas in clear and entertaining sentences: Putnam, Searle, and Nussbaum come to mind. In sum, Wringe sounds like a nice guy and methodical thinker who is hesitantly critical of other views in order to advance the reader’s understanding. All of this inspired me to give him the benefit of the doubt when he made a move that seemed odd.In the end, my faith in Wringe paid the dividend of a very thoughtful and complex theory of expressivism. However, this theory addresses just one purpose of punishment—one of many, perhaps—and does not constitute a grand justification of punishment. Wringe indicates that he might consider his theory a part of a ‘unified’ theory of punishment, on which punishment is justified insofar as it achieves a number of aims (such as is discussed in Thom Brooks, Punishment [London: Routledge, 2012], 123–48). But he does not provide readers any sense of what such a unified justification of punishment might consist in (Which aims are to be included? How would this theory differ from a hybrid justificatory theory?).Wringe could nest his theory within a broader backward-looking justification. For example, we might be justified in state punishment of persons who have certain moral capacities and cause harm because these people are morally blameworthy, and one purpose of such punishment (in addition to retribution) might be to communicate to society our commitment to certain norms and the seriousness with which we take violations of those norms. Interestingly—given his apparent distaste for consequentialism—Wringe’s brand of expressivism might also be given a broad consequentialist justification. Manuel Vargas justifies holding persons responsible on the basis of the good impacts the practice of praise and blame has on moral agency at the societal level (Building Better Beings [Oxford: Oxford University Press, 2013]). Wringe might claim that punishment’s communications have the consequences of enhancing moral agency at the group/society level (when the offender is a member of the group/society) and thus avoid the worry that a consequentialist justification for punishment treats offenders as a means to an end.It seems unlikely that any version of expressivism can justify harsh treatment of an offender solely on the basis of the message it sends, either to society or to the offender. To my mind, punishment must be justified via the offender’s blameworthiness (where blameworthiness is related to moral capacities or agency in some way) or via punishment’s desired consequences (e.g., social order) or both. Otherwise, even if one believes punishment is communicative, the message of punishment is either undeserved or ineffective. The explicitly claimed purposes of punishments in the United States—for example, those embraced in the “purposes” section of the US Model Penal Code (sec. 1.02) and most state penal codes—include retribution and deterrence, broadly construed. It would be instructive to hear how these aims fit with Wringe’s expressivist theory of punishment. Previous articleNext article DetailsFiguresReferencesCited by Ethics Volume 127, Number 1October 2016 Article DOIhttps://doi.org/10.1086/687350 For permission to reuse, please contact [email protected]PDF download Crossref reports no articles citing this article.

Recent scholarship on theories of criminal punishment has increasingly focused on retributivist justifications for punishment. While within this retributivist camp opinions differ as to the particulars of such policies, there is general agreement that criminals getting what they deserve, that is, their 'just deserts,' should be the underlying goal and rationale of the criminal justice system. From this point, these scholars argue that a criminal should receive punishment according to what the criminal deserves. Some forms of retributivism, however, have attempted to draw support from other theories of criminal punishment. By borrowing elements of other theories, specifically utilitarian theories, scholars have attempted to bolster support for retributivist policies. A particularly well received form of retributivism and the focus of this Comment, 'limiting retributivism,' argues that a range of punishments will fall within the criminal's just deserts, and that utilitarian concepts can alter the punishment within the aforementioned range. This Comment scrutinizes limiting retributivism's appeal to utilitarian theories of punishment to determine if such a system of punishment can achieve many of the outcomes sought by utilitarian theories, specifically deterrence. This Comment argues that the answer to this question, while complex, is ultimately no. I begin my inquiry by expounding on the history of retributive and utilitarian theories of punishment, and the specific concepts of limiting retributivism and what 'factors' exist in determining a criminal's just deserts. Then, I shift focus and analyze the practical effects of these factors in light of recent behavioral psychology and behavioral law and economics research on cognitive biases. Subsequently, I describe why these insights into human psychology and the effects of cognitive biases will actually lead to under-deterrence of criminal activity. I develop this point by acknowledging that while this research also questions utilitarianism's proposal for deterrence through ex ante incentives, the under-deterrence effect of limiting retributivism is far higher than that of utilitarianism. I also highlight why such under-deterrence is fundamentally contrary to utilitarian goals of punishment. I end by arguing that, given the insights of behavioral psychology, utilitarian goals of punishment are not sufficiently accomplished under limiting retributivism. A more pure form of utilitarianism is required to achieve utilitarian goals with hard and fast criminal rules with no appeal to or use of other theories of punishment. I also propose that utilitarians, in collaboration with behavioral law and economics scholars, can further understanding of how the criminal law may incorporate behavioral psychology insights to create more effective ex ante incentives.

This book argues for a mixed theory of legal punishment that treats both crime reduction and retribution as important aims of the state. A central question in the philosophy of law is why the state’s punishment of its own citizens is justified. Traditionally, two theories of punishment have dominated the field: consequentialism and retributivism. According to consequentialism, punishment is justified when it maximizes positive outcomes. According to retributivism, criminals should be punished because they deserve it. This book recognizes the strength of both positions. According to the two-tiered model, the institution of punishment and statutory penalties, as set by the legislature, are justified based on their costs and benefits, in terms of deterrence and rehabilitation. The law exists to preserve the public order. Criminal courts, by contrast, determine who is punished and how much based on what offenders deserve. The courts express the community’s collective sense of resentment at being wronged. This book supports the two-tiered model by showing that it accords with our moral intuitions, commonly held (compatibilist) theories of freedom, and assumptions about how the extent of our knowledge affects our obligations. It engages classic and contemporary work in the philosophy of law and explains the theory’s advantages over competing approaches from retributivists and other mixed theorists. The book also defends consequentialism against a longstanding objection that the social sciences give us little guidance regarding which policies to adopt. Drawing on recent criminological research, the two-tiered model can help us to address some of our most pressing social issues, including the death penalty, drug policy, and mass incarceration. This book will be of interest to philosophers, legal scholars, policymakers, and social scientists, especially criminologists, economists, and political scientists.

By offering a critical analysis of Nicolás Maloberti’s recent theory and justification of punishment, this article accounts for a series of principles and considerations that any liberal and Lockean theory of punishment must take seriously. This article contends that Locke’s conception of the state – an institution grounded on the right to punish violators of natural rights – and the basic character of the right to property within Locke’s scheme of rights are elements that should lead us to affirm that no genuine liberal theory of punishment can dispense with the political character of the right to punish.

A great deal of contemporary work on justifications of punishment has been pursued within the field of moral philosophy. Such inquires are typically concerned with the rightness or wrongness of punishment from the perspective of utilitarian or retributive moral theory, considered in isolation from the political question of legitimacy. In contrast to a broadly moral theory of punishment, a theory of punishment within the confines of political morality should address not only how those guilty of crimes deserve to be treated, but also the narrower question of which punishments the state rightly metes out. In this essay, I argue that we should turn to Rousseau as a guide in developing a theory of justifiable state punishment. Rousseau’s theory of the social contract, I suggest, demonstrates how a theory of political legitimacy might frame an account of punishment. Furthermore, I contend that Rousseau’s contractualism, while flawed, points the way forward for contemporary accounts of legitimate state punishment.

This paper considers some of the arguments in Victor Tadros’ book on the moral justification of criminal punishment. While the final end of the book is a theory of punishment, it discusses along the way also general topics in moral and political philosophy and considers the analogy between punishment and defensive force. Therefore, the book is of interest not only to people who are interested in the justification of punishment, but also to those who are interested in ethical theory more generally. In what follows, I first describe, very briefly, the main arguments in the book and then consider a few aspects of some of these arguments.

Penal studies in contemporary Poland are dominated by dogmatic analysis. Penology, understood as an interdisciplinary area of research on criminal punishment and other legal and social reactions to acts prohibited under the threat of punishment, does not belong to dynamically developing fields of legal studies. An existing knowledge gap encourages some reflection on the theory of punishment and its impact on practice of criminal justice. Over the centuries, theories of punishment have mainly been debated by philosophers of law. In recent decades, most discussions concerning the theory of punishment have taken place between supporters of consequentialism and retributivism. However, the impact of these discussions on practice is limited. Issues most important to practitioners, such as the question of how much punishment should be imposed on a given offender, are frequently not found to be so important by penal philosophers. Numerous recent reforms of criminal justice systems in the United States and European countries do not fit into any normative framework because they are populist in nature and aim to achieve mainly political goals. As a result, sentencing in the United States is still criticized for being “unprincipled.” In Europe, establishing common sentencing principles for all Council of Europe countries has turned out to be difficult owing to their diverse legal traditions and sentencing practices. More interdisciplinary discussion and research that takes into account both the theoretical and practical problems of punishment are necessary in order to ensure an appropriate normative framework for criminal justice systems.

Several years ago I thought that I understood Kant’s theory of criminal punishment—an understanding aided by a Rawlsian reconstruction of certain aspects of that theory.1 I thought that Kant’s theory was profound, inspiring, and—although subject to certain problems—the only morally acceptable theory of punishment.2 I was confident that all philosophical work on problems of crime and punishment could be done within a generally Kantian perspective (which I took to be an unambiguously retributive perspective), and some of my own work exhibited that confidence to an uncritical degree.3 KeywordsSupra NoteState CoercionCriminal PunishmentMoral JustificationMoral EvilThese keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

The idea of socio-educating function of punishment is not recent. It appeared in XVIIIth century. Its renewal of XXth century is explained by the disappointment of the deterrent and re-socialising effectiveness of criminal punishment. It is also a reaction towards the abolitionary postulates’ questioning the sense of existence of the criminal punishment. There are many versions of this theory. It is widely popular in Germany where it is calted ‘positive general prevention’ or the ‘integrating prevention’. The term ‘positive general prevention’ was constructed in Germany in opposition to the traditional term ‘general prevention’ understood solely as a general deterrence. It is meant to stress the turn away from the so understood ‘general prevention’ and a promoting of the positive function of criminal punishment. This ‘positive’ or ‘integrating’ function of punishment is, in most simple terms, based on strengthening the morality, supporting the desired attitudes and ways of behaving, strengthening the trust in law, in shaping the law awareness, and also encouraging norms recognition. The purpose of the punishment is preserving and strengthening the normative integration of society. It is realised not by creating fear but by using persuasion, by teaching about necessity and usefulness of the criminal law norms and by obeying them for the social order. It is also important to bring about a custom of law obedience. The popularity of the positive general prevention is explained differently in the German studies. Most often, it is pointed out that, on the one hand, a return towards the absolutist theories is commonly rejected there, and on the other hand, that there is a popular disappointment with the efficiency of prevention and re-socialisation. The positive general prevention an opportunity for keeping a preventive character of theory of punishment with a simultaneous introduction of a retributive element in form of guilt rule. It thus creates a combination of rationality of prevention theories with a guaranteed character of the absolutist theories. It also has an advantage over the mixed theories of punishment as it is directed at a single goal. Despite of a significant differentiation of the positive general prevention theories, it is relatively easy to define some of its characteristics: the addressee of an execution of the criminal law and punishment is society and not an individual person, where it is mostly about the influence on those members of society who do obey the law. the positive general prevention aims at long term, indirect activity and not at an immediate, short term effect on society. the persuasive nature of the criminal law is stressed, its ability to persuade, as well as the symbolic, expressive meaning of punishment as means of communicating. The content of that message in German conception is, in general, that criminal law norm is still valid. It exceptionally evokes to the moral condemnation of a deed as a subject of that message. the representatives of the theory of positive general prevention educe the purpose of the punishment from the entire penal law system. Penal law and the penalty itself come in those ideas on the very same grounds. Therefore it is not a theory of punishment but a theory of the penal law. these theories agree that the positive, integrating effect can be brought about only by a just punishment. a very typical feature of the German ideas is using the term of guilt in reference to functionality. It makes them vulnerable to a reproach that, in fact, they are veiled absolutist theories. I analyse five ideas of the positive general prevention in this article. It was my aim to select those ideas which could indicate its diversity. Mayer's theory contributed to the rebirth of the socio-educational theory of punishment function in German studies. It belongs to the movement of the expressive punishment theories. According to Mayer penalty has an educational aspect for the society by strengthening or creating morality of the community. Integrating prevention, as understood by H. Muller-Dietz, is an activity of punishment which is based on creating and strengthening the ways that law is perceived by the citizens. The integrating function is realised by the regulatory and court systems of justice. The most popular in Germany is the theory of G. Jakobs. It clearly refers to the theory of systems by Niklas Luhmann. Jakobs stresses that punishment expresses a protest against breaking a norm paid by the offender. It shows that the norm broken with a deed is still valid and that it is determinant as an orientation example for social interactions. A very strong feature of W. Hasserman’s idea is the emphasis of how the penal law system influences the entirety of social control processes. Streng refers to the psychoanalysis and psychology of the punishing society, in order to explain the general preventative activity of punishment. He mentions three unconscious, emotional sources of punishment. In the conclusion I discuss the significance of the presented theories for the studies of criminal law and the practices of administration of criminal justice.

This draft is Chapter Two of a book entitled, Theory of Just Punishment. One initial premise of the book is that current punishment theory is misguided in two respects. First, ordinary punishment theory tries to provide moral justifications for legal punishment, instead of trying to describe just norms for punishment. This is to work in the wrong direction. A moral justification for punishment will not provide us with a description of norms for just punishment. It will not tell us how to formulate self defense, why provocation manslaughter is a partial defense instead of an offense, or whether negligence is a kind of criminal fault. But to describe just norms for punishment does tell us how legal punishment is morally justified. Second, ordinary punishment theory tries to provide a moral justification by reference to punishment's functions – principally, deterrence and retribution. But legal punishment manifestly serves a large number of functions simultaneously. The functionalist approach makes it necessary to order these many functions, bringing them into conflict, placing one over the other, or denying one or another of them. This war is both pointless and incoherent. Therefore, Theory of Just Punishment takes a fresh start on the problem, attempting to describe just punishment norms. Explaining this fresh start requires a bit of metatheory at the beginning. Chapter Two's contribution to this task is to explain several kinds of normative punishment theory, focusing on implicitly normative punishment theory.

This article aims to relate the theories of punishment, retributive and preventive, with the criminological discourse, and make brief notes about the negative theories and criticism of the sentence. The article begins by making a few notes on the mass incarceration of the phenomenon, then going to discuss and present the form of action of the police state. Then they present the theories of punishment under the critical perspective, and then work the two main critical theories of punishment, thus treating the position Prof. Eugenio Raul Zaffaroni and Prof. Juarez Cirino dos Santos. These presentations and discussions have left the critical discourse, not taking our work as end revisit the theoretical construction of the functions of the pen, just to demonstrate how the discourse of shame built by criminal law legitimizes selective and violent actions of the penal system.

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.

This paper addresses The Ends of Harm by Victor Tadros. In it, I attempted to explore some of the implications of Tadros’s theory of punishment, particularly those following from the uneasy relationship between punishment of the offender (D) and D’s duty to protect the victim (V) from future harm. Among my concerns were: the apparent underinclusiveness of Tadros’s theory of punishment; the vague and unpredictable scope of D’s liabilities; the taking away by the state of V’s right to be protected; and the lack of inherent limitations on the appropriate forms and amounts of punishment. I also questioned the true meaning of the duty incurred by D as a result of D’s wrongdoing and suggested that protection of Vs from future harm may not be as essential to Tadros’s justification of punishment as he has argued.

Punishment, by definition, involves the intentional imposition of some deprivation or suffering on individuals against their wills. On any moral view, there is a very strong presumption against doing this to people; so, if a society has an institution of punishment, some justification is needed. On the face of things, such an institution would seem to be an evil. What, then, is the justification for punishment? And once this question has been raised, related questions arise. Who should be punished and how severely? And what principle or principles should we use when setting up sentencing guidelines? Any adequate theory of punishment must provide some guidance, some useful headings, even if not a detailed chart, for answering these questions, among others.In this paper, I outline a theory of punishment that I believe best answers these sorts of questions. Inevitably, some parts are far sketchier than others; but within the general outline, the major focus is on the concept of desert and on the application of desert principles in determining the just allotment of punishments. This leads to a framework for constructing a crimes/punishments schedule for sentencing. Along the way, a number of lesser issues are discussed as well.

Acknowledgments Introduction Part I: A Metatheory of Punishment 1. Why Submit to Punishment? How to Justify Punishment * Submission to Punishment: A Brief History * The Need to Address the Question of Submission * Civil Disobedience 2. Two Paradigms of Punishment The Two Paradigms * The Status of the Two Paradigms * The Priority of the Conscientious Paradigm * Submission to Punishment and the Traditional Theories * Nontraditional Theories 3. It Doesn't Have to Hurt: Punishment, Suffering, and Other Evils The History of the Standard View * Refutation of the Standard View: The Main Grounds * Additional Counterexamples * The Psychology of Positive Punishment * Disvalue and the Justification of Punishment * Concessions to the Standard View 4. What is Punishment? A Definition * Applications * Definition and Justification Part II: A Theory of Punishment 5. The Rectification Theory of Punishment Equal Basic Rights * The Kernel of the Theory * How to Broaden Your Sphere * The Extent of the Broadening * Determining the Sentence * An Objection: Future or Past Rights? * Suffering Not Essential * A True Claim of Rights * Interpretation of the Punishment * How to Restrict Your Own Liberty * Remission of Punishment * Affinities to Other Views 6. The Rectification Theory: Application and Evaluation The Domain of the Principle * Attempts and Victimless Offenses * Punishment of Recidivists * Community Service * Imprisonment * Penance for Sins * Evaluation 7. Punishment and Contract Overview * Methodology for Nonideal Theory * Making the Contract * The Content of the Contract * Principles of Interpretation * Applicability of the Contract, Division of Offenses * Applying the Contract * Transfer to the Real World * Hamlet without the Prince 7. Punishment, Contract, and Fraternity An Objection * The Social Contract as Relational Contract * The Fraternal Society * The Questions Answered Appendix Notes Index