Antony Duff and the Philosophy of Punishment

تناولت هذه الورقة فلسفة العقوبة في الشريعة الإسلامية، وفلسفتها في القانون الوضعي، وتمت الموازنة بين الفلسفتين، وخلص العرض والموازنة إلى نتائج ملخصها أن مسألة عصمة الشريعة وسموها تعد علامة فارقة بين الشريعة الإسلامية والقانون الوضعي، هذه العلامة نتج عنها فروق كثيرة أولها أن العقوبة في التشريع الوضعي تكون تابعةً للهدف، فالهدف يوضع أولاً ثم تصاغ على ضوئه العقوبة، ولذلك كلما ظهرت مدرسةٌ جديدةٌ تؤسس لفكرٍ جديدٍ ظهر اختلافٌ في التشريع العقابي. بينما النظام العقابي الإسلامي ثابتٌ ومعصوم، وقد وُجدت الحاجة إلى معرفة أهدافه وفلسفته ليتسنى السير على مقتضاها فيما يستجد من وقائع، وأن سمو فلسفة العقوبة في الشريعة الإسلامية ينبع من سمو مصدرها، فواضع هذه العقوبات هو خالق البشر. بينما العقوبة في القانون الوضعي تعتمد في فلسفتها على خبرة واضعيها، وهي خبرة محدودة وأحكامها نسبية، لذا كان تطبيق العقوبات الشرعية أجدر حتى وإن لم يُدرَك كنه هذه العقوبات وفلسفتها. الكلمات الرئيسية: فلسفة العقوبة، القانون الإسلامي، القانون الوضعي، التشريع العقابي.******************************In this paper light is shed on the philosophy of punishment in Islamic and positive laws and a comparison between them is accomplished. In brief, the conclusion of the exposition and comparison is that issue of infallibility of SharÊ‘ah and its nobleness are the distinguishing marks between Islamic and positive laws. This led to further differences. The first difference is that the punishment in positive laws is in accordance with the stipulated goal, that is, the goal is set first and then the punishment is formulated in that light. That is why whenever any new school of thought appears based on some ideology, differences emerge in punitive legislation. Islamic penal system is, however, immutable and infallible. There is a need to know its objectives and wisdom so as to in order to tackle new emerging issues. The nobility of the philosophy of punishment in Islamic law stems from the nobility of its source and that is no one but the Creator of human beings. The punishment in the positive law, on the other hand, relies on the philosophy that is based on the experiences of the authors of these laws. And these experiences are limited and their rulings are relativistic. Applying Islamic legal punishments are, therefore, more legitimate, even though their essence and philosophy are not fully grasped.Key words: Philosophy of Punishment, Islamic Law, Positive Law, Punitive Legislation.

Download Full-text

Book review: ANTONY DUFF, Answering for Crime: Responsibility and Liability in the Criminal Law. Oxford: Hart Publishing, 2010, pp. xx + 322, ISBN 9781849460330, £22 (pbk)

Social & Legal Studies ◽

10.1177/09646639110200030704 ◽

2011 ◽

Vol 20 (3) ◽

pp. 409-412

Author(s):

Findlay Stark

Keyword(s):

Criminal Law ◽

Antony Duff

Download Full-text

Introduction

Oxford Studies in Agency and Responsibility Volume 5 ◽

10.1093/oso/9780198830238.003.0001 ◽

2019 ◽

pp. 1-4

Author(s):

D. Justin Coates ◽

Neal A. Tognazzini

Keyword(s):

Moral Responsibility ◽

Current Account ◽

Moral Status ◽

Criminal Responsibility ◽

Personal History ◽

Michael Smith ◽

Gary Watson ◽

The Relationship ◽

Susan Wolf ◽

Antony Duff

In this brief introduction, the editors summarize the motivation for the coming together of these chapters—which is to celebrate the work and philosophical legacy of Gary Watson—as well as the content of each contribution. Michael McKenna builds on and systematizes several key elements of Watson’s views on agency and responsibility. Susan Wolf extends elements of Watson’s oeuvre, notably the relationship between the way agents are responsible for their actions and the kind of response licensed by those actions. Pamela Hieronymi goes on from Watson’s work to offer her own account of what blame’s about. R. Jay Wallace is also concerned with Watson’s overall conception of moral responsibility, understanding blame to be an incipient form of moral address. Michael Smith continues the theme, offering a possible theory of moral responsibility similarly grounded in the reactive emotions. T. M. Scanlon continues a debate that Scanlon and Watson have been having over the moral status of psychopaths. Jeanette Kennett argues that psychopaths are not accountable for their actions in the sense required for moral blameworthiness; and that psychopaths’ actions are not attributable to them so as to make them plausibly criminal. Antony Duff extends Watson’s work on moral responsibility to the domain of criminal responsibility. Gideon Yaffe seeks to better understand the prospects of Watson’s account of addiction. Gary Watson himself offers his current account of the distinction between the two faces of responsibility and thoughts on weakness of will and negligence. Finally, a 2016 interview of Watson by Sarah Buss is a wide-ranging and significant discussion of Gary’s personal history and philosophical development.

Download Full-text

The philosophy of punishment.

10.1037/14063-005 ◽

2012 ◽

pp. 60-80

Author(s):

Jacob Abbott

Keyword(s):

Philosophy Of Punishment

Download Full-text

Postscript: In Fairness to Condemnation

Israel Law Review ◽

10.1017/s0021223700010621 ◽

1991 ◽

Vol 25 (3-4) ◽

pp. 581-594

Author(s):

Michael Davis

Keyword(s):

Historical Record ◽

The Other ◽

Other Hand ◽

Philosophy Of Punishment ◽

The One ◽

Criminal Desert

Von Hirsch has presented me with a dilemma. As he says, “Proportionality in the Philosophy of Punishment” is a “substantially revised” version of the paper originally prepared for the Jerusalem conference. Its predecessor, “Allocating Penalties”, was in part a response to my “Criminal Desert, Harm, and Fairness”, the paper I prepared for the conference. “Proportionality” is instead (if only in part) a response to what I said at the conference — the “Postscript” cited in its footnotes.Here is the dilemma. On the one hand: I could leave “Postscript” more or less as I gave it. That would preserve the historical record, but at some cost. I would have missed a chance to advance discussion of important issues. I would also have caused an anomaly in the order of papers printed here. On the other hand: I could rewrite “Postscript”, making it a response to “Proportionality” rather than to “Allocating Penalties”.

Download Full-text

The Problem of Over-Inclusive Offenses: A Closer Look at Duff on Legal Moralism and Mala Prohibita

Criminal Law and Philosophy ◽

10.1007/s11572-020-09538-5 ◽

2020 ◽

Vol 14 (3) ◽

pp. 395-416

Author(s):

Stephen Bero ◽

Alex Sarch

Keyword(s):

Criminal Law ◽

Legal Moralism ◽

Criminal Offense ◽

The Law ◽

Antony Duff

Abstract There are sometimes good reasons to define a criminal offense in a way that is over-inclusive, in the sense that the definition will encompass conduct that is not otherwise wrongful. But are these reasons ever sufficient? When, if ever, can such laws justifiably be made and enforced? When, if ever, can they permissibly be violated? In The Realm of Criminal Law, Antony Duff tackles this challenge head on. We find Duff’s strategy promising in many ways as an effort to reconcile over-inclusive offenses with the wrongness constraint on criminalization. Nonetheless, we aim to move the discussion forward by raising questions about Duff’s solution and highlighting some limitations and costs. We begin in Part 2 by sketching the contours of Duff’s position; then in Part 3 we propose one refinement and offer two practical observations; and finally, in Part 4 we raise broader concerns. In particular, we question whether the problem of over-inclusive offenses is one that can or ought to be solved, or whether it is better conceived as a difficulty to be managed and mitigated. Of course, we should avoid undue harshness in the law where we can, and Duff’s approach is guided by this worthy ambition. But there may also be a limit to this. To the extent that the harshness cannot be avoided, perhaps this should be acknowledged and faced up to, rather than obscured or finessed.

Download Full-text

THE AUTHORITY OF MORAL OVERSIGHT: ON THE LEGITIMACY OF CRIMINAL LAW

Legal Theory ◽

10.1017/s1352325219000119 ◽

2019 ◽

Vol 25 (3) ◽

pp. 153-177

Author(s):

Christopher Bennett

Keyword(s):

Criminal Justice ◽

Criminal Law ◽

Philosophy Of Punishment ◽

Recent Philosophy ◽

At Will

ABSTRACTAn influential view in recent philosophy of punishment is that the apparatus of criminal justice should be geared at least in part to state censure of wrongdoing. I argue that if it were to be so geared, such an apparatus would make ambitious claims to authority, and that the legitimacy of the relevant state would then depend on whether those claims can be vindicated. This paper looks first at what kind of authority is being claimed by this apparatus. The criminal law, I argue, cannot merely be thought of as claiming a right to rule and to be obeyed. Rather, its authority is better understood as the authority of moral oversight: a power to alter, at will (though within certain limits), citizens’ liability to answer for their compliance with—and to be officially censured for their failure to comply with—a designated set of pre-existing moral 7reasons. The paper then looks at whether a state could realistically be expected to possess such authority—that is, whether a state that claims to have such a power could ever be legitimate.

Download Full-text