State Coercion and Criminal Punishment

This chapter proposes a novel normative framework for criminal punishment, called the value theory of criminal punishment, as an alternative to desert-based retributivism. Contrary to retributivists who see criminal desert as pre-social and purely individualistic, the value theory understands it as embedded in communal values and social norms, and thus sees crime not in virtue of its pre-socially evaluated wrongness but in terms of a “normative blow” to the political community undergirded by such values and norms. In the Confucian society in particular, a normative blow to the community complexly implicates both the wrongdoer and the victim, as they are thought to exist not as independent rights-bearing individuals but as quasi-family members of the community. The chapter then singles out family crimes as the gravest moral violation in a Confucian society and justifies enhanced punishment for them from the perspective of the Confucian value theory.

Retributivist Theory of Punishment: Some Comments

The Retributivist approach to punishment attempts to address the challenges posed by utilitarian conception that punitive actions should strictly be associated with a costeffective means to certain independently identifiable goods at the expense of justice. Justice proffers how the guilty deserve to be punished and no moral consideration relevant to punishment outweighs an offender’s criminal desert. However, this just desert provokes difficulty in discerning proportionality between the moral gravity of each offence and the specific penalties attached. This consequently degenerates to another form of ‘lex talionis’ (revenge) in punitive justice.

Postscript: In Fairness to Condemnation

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”.

Criminal Desert, Harm and Fairness

This paper has two parts. The first (sections I-III) compares retributive theories measuring criminal desert largely by the harm the criminal did or risked, with a theory measuring it by the unfair advantage the criminal necessarily took, what I shall call “the fairness theory”. This part of the paper summarizes arguments I have made elsewhere. The second part (sections IV-V) defends the fairness theory against five objections recently made against it by two important theorists, Andrew von Hirsch and Hyman Gross. The objections are variations on the charge that the fairness theory of criminal desert is implausible, incoherent, or otherwise fundamentally flawed. Each objection collapses almost as soon as one or another standard distinction is made. I conclude the paper wondering why theorists have not noticed how weak these objections are.