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Unformatted text preview: Punishment as Fair Play Richard Dagger Published online: 12 November 2008 Ó Springer Science+Business Media B.V. 2008 Abstract This article defends the fair-play theory of legal punishment against three objections. The first, the irrelevance objection , is the long-standing complaint that fair play fails to capture what it is about crimes that makes criminals deserving of punishment; the others are the recently raised false-equivalence and lacks-inte- gration objections. In response, I sketch an account of fair-play theory that is grounded in a conception of the political order as a meta- cooperative practice—a conception that falls somewhere between contractual and communitarian concep- tions—and draw on this account to show how the theory can overcome the objections. Keywords Communitarianism Á Contractualism Á Cooperative practice Á Fair play Á Justification Á Punishment Introduction In 1993 I published an essay, ‘Playing Fair with Punishment’, in which I defended the fair-play theory of punishment against various objections that had been lodged against it (Dagger 1993 ). My aim in that essay was to persuade punishment theorists that they were too hasty in their rejection—or in some cases abandonment—of the theory; failing that, I hoped at least ‘to restore the principle of fair play to a central place in discussions of the justification of punishment’. The essay did not go unnoticed, but it has not had the desired effect. It does seem to have inspired several philosophers to take a closer look at fair play as a justification for legal punishment, but that closer look has seldom won them over. But neither have their criticisms of R. Dagger ( & ) Department of Political Science, Rhodes College, 2000 N. Parkway, Memphis, TN 38112-1690, USA e-mail: [email protected] 123 Res Publica (2008) 14:259–275 DOI 10.1007/s11158-008-9071-1 my arguments convinced me that fair-play theory is, at best, an interesting and instructive failure. Nor do I think that this is sheer stubbornness on my part, for I am not the only one who remains committed to a fairness-based theory of punishment. 1 I conclude, then, that another attempt to vindicate fair play as the grounding of legal punishment is in order. In ‘Playing Fair with Punishment’ I argued that every crime is in some sense a crime of unfairness, and I attempted to overcome six objections to the fair-play account of punishment. I shall not address all six objections again in this article, however, but only the one that seems most decisive to the critics. This is the complaint, as R. A. Duff states it, that fair play ‘offers a distorted picture of the punishment-deserving character of crime’ (Duff 2001 , p. 22). In addition, I shall respond to two new objections that have been directed against the way in which I elaborated fair play as the justification for punishment. In order to overcome these three objections, I shall need to provide a richer and more clearly political explanation of how the principle of fair play applies to punishment under law than I...
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