Notes+3-10[1] - Notes 3/10 Review of Justifications of...

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Notes 3/10 Review of Justifications of punishment What is legal punishment? (1) P is a legally authorized official acting in his or her official capacity and (2) P does a because P justly and reasonably believes that Q has committed o and (3) P does a with the intent of harming Q and (4) P’s doing a does in fact harm Q and (5) P’s doing of a expresses official disapproval of Q for having committed o. (Boonin) Need for justification: It involves intentionally harming someone. It imposes costs on innocent persons. Justifications: I. Retributivism Core, shared notions: 1) Repayment. This is the basic sense. Retribution from the Latin ‘re tribuo’—to pay back. Punishment is inflicted to make offender pay for crime. 2) Punishment must “look backward” to the crime. 3) Guilt as necessary condition 4) Principle of proportionality 5) Kantian principle of never treating persons merely as means Versions of retributivism 1) Fair play: “Failure to punish is unfair to those who practice self-restraint and respect the rights of others.” Objections: a) False equivalence: It ‘also entails that all offenders are equally free riders’ (Boonin 2008, p. 196). That being so, fair-play theory fails to justify ‘aiming more punishment at the murderer than at the tax evader’” b) The amount of self-restraint not exercised is not an adequate measure of seriousness of crime, so fair-play theory simply fails to capture ‘the punishment-deserving character of crime’. c) Communities with majority of offenders in general do not have larger share of social benefits and hence do not have an “unfair advantage” that needs to be removed. d) Modern penal states are not the models of community envisioned by fair play theorists. e) Even in a fair system, punishment wouldn’t be chosen, and where we lack explicit consent, the good must outweigh bad of punishing. f) The seriousness of crime is not accurately measured by unfair advantage to offender self-restraint not exercised, but victim’s loss, and this is better made up for by restitution. 2) Trust: “If the rules of law are to provide a public expression of condemnation of those forms of behaviour that undermine trust in a community, the community must support the imposition of those sanctions.” (Dimock)
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Objection: “The general problem for Dimock is that, even if she can establish that punishment does restore the objective reasonableness of trust, and moreover that punishment is necessary for the achievement of this end, she still has to explain why it is permissible to punish trust violators in order to attain this end.” [And her example of punishment doesn’t necessarily involve intentional suffering.] (: Korman) 3) Expressive Retributivism: Moral injury diminishes the victim and expresses the superiority of the offender. Punishment expresses communal rejection of moral injury. Objections:
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This note was uploaded on 09/08/2010 for the course PHIL 292 at San Jose State.

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Notes+3-10[1] - Notes 3/10 Review of Justifications of...

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