Discussion Notes Week 3 - Discussion Notes Week Three What...

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Discussion Notes Week Three What is punishment? What are its typical characteristics? Greenawalt article : 5 features 1. Responsible Agents—“one need have only sufficient mental control over one’s actions to refrain from disfavored behavior” [FCL p. 49] 2. Unpleasant Consequences 3. Condemnation—an expression of moral outrage 4. Authority 5. Standards—established rules of behavior; people should have fair warning as to what behavior is unacceptable idea of due process Theories of Punishment : Purpose of thought experiments: “The justification for any such theories is one that appeals to both our particular judgments and our more general principles, in order to show that the theory fits judgments that on reflection we are sure of, and principles that on reflection we are proud of.” [FCL, pg. 77] Two pure theories: Utilitarianism : “Punishment is justified if and only if some net social gain is achieved by it.” [FCL p. 67] Bentham: “ . . . all punishment in itself is evil. Upon the principle of utility, if it ought at all to be admitted, it ought only to be admitted in as far as it promises to exclude some greater evil.” [FCL, pg. 70] 1) Maximizing principle: “an action or institution is right if it maximally achieves whatever are intrinsically good states of affairs while minimizing whatever are intrinsically bad states of affairs.” [FCL p. 69] 2) Theory of the Good: for Bentham, happiness/pleasure; but later versions use social welfare as operationalized by, e.g., preferences (subjective) or primary goods (objective) Indirect utilitarianism: “the utilitarian calculus should be used to justify the generals standards of the criminal law [legislative context] while the application of those standards should not be guided by the welfare calculus of utilitarianism [judicial context].” [FCL, p. 70] Rule versus Act utilitarianism Potential problems with utilitarianism: 1. “the calculation of net social welfare that utilitarianism demands often cannot be equated with the intuitive demands of justice.” [FCL p. 69], e.g. utilitarianism sometimes may demand punishment of the innocent or the failure to punish the guilty a. Scapegoating: Example: punish someone who looks like D.B. Cooper in order to
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This note was uploaded on 04/02/2008 for the course LS 109 taught by Professor Kutz during the Spring '08 term at University of California, Berkeley.

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Discussion Notes Week 3 - Discussion Notes Week Three What...

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