Moore’s Moral Facts and the Gap in the Retributive Theory

The purely retributive moral justification of punishment has a gap at its centre. Having renounced consequentialist justifications, it fails to explain why the punishable person should not be protected by the intuitively powerful moral idea that afflicting another person is always wrong. Attempts to close the gap have taken several different forms, and only one is discussed in this paper. This is the attempt to push aside the ‘protecting’ intuition, using some more powerful intuition specially invoked by the situations to which criminal justice is addressed. In one aspect of his complex defence of pure retributivism, Michael S. Moore attempts to show that the emotions of well-adjusted persons provide evidence of moral facts which, when worked into a valid moral theory, justify the affliction of culpable wrongdoers in retribution for their wrongdoing. In the first part of this strategy, he invokes analogies with our intuitions about the appropriateness of sanctions and entitlements in other legal contexts, such as tort and property rights. In the second part, he appeals to emotions aroused by especially heinous crimes, including the punishment-seeking guilt appropriate to the offender who truly confronts his act. The paper argues that neither part of the strategy is successful: the intuitions appealed to in each case can be at least as plausibly, and perhaps more discriminatingly, accounted for within frameworks of theory which require no commitment to pure retributivism

Respect for Just Revenge

The paper considers acts of private (in the sense of individually motivated and extra-legal) revenge, and draws attention to a special kind of judgement we may make of such acts. While endorsing the general view that an act of private revenge must be morally wrong, it maintains that under certain special conditions (which include its being just) it is susceptible of a rational respect from others which is based on its standing outside morality, as a choice by the revenger not to act morally but to obey other compelling motives. This thesis is tested against various objections, notably those which doubt the intelligibility or application of such non-moral ‘respect’, or would assimilate it to moral approval; and it is distinguished from various positions with which it might be confused, such as the 'admirable immorality' of Slote, or the Nietzschean critique of moralit

The Theory of the Offender's Forfeited Right

In justifying punishment we sometimes appeal to the idea that the punished offender has, by his criminal action against others, forfeited his moral right (and therefore his legal right) against hard treatment by the state. The imposition of suffering, or deprivation of liberty, loses its prima facie morally objectionable character, and becomes morally permissible. Philosophers interrogating the forfeited right theory generally focus on whether the forfeiting of the right constitutes a necessary or a sufficient condition for punishment to be permissible; rarely do they ask whether the idea of a right that can be forfeited is itself morally illuminating. The article examines and criticizes various versions of this theory. It concludes that the forfeited right arguments add little other than rhetorical dignity to the existing repertoire of justifications for punishment. They can be most usefully understood as communicating the thought that the offender cannot reasonably complain about the violation of rights he himself has violated. But the incapacitation of the offender's reasonable complaint does not entail that we are justified in punishing him

Informed Altruism and Utilitarianism

Utilitarianism is a consequentialist theory that assigns value impartially to the well-being of each person. Informed Altruism, introduced in this paper, is an intentionalist theory that relegates both consequentialism and impartiality to subordinate roles. It identifies morally right or commendable actions (including collective actions such as laws and policies) as those motivated by a sufficiently informed intention to benefit and not harm others. An implication of the theory is that multiple agents may perform incompatible actions and yet each be acting rightly in a moral sense

The Intrinsic Good of Justice

Some retributivists claim that when we punish wrongdoers we achieve a good: justice. The paper argues that the idea of justice, though rhetorically freighted with positive value, contains only a small core of universally-agreed meaning; and its development in a variety of competing conceptions simply recapitulates, without resolving, debates within the theory of punishment. If, to break this deadlock, we stipulate an expressly retributivist conception of justice, then we should concede that punishment which is just (in the stipulated sense) may be morally wrong

Private Revenge and its Relation to Punishment

In contrast to the vast literature on retributive theories of punishment, discussions of private revenge are rare in moral philosophy. This paper reviews some examples, from both classical and recent writers. It detects, both in the philosophical tradition and in contemporary moral discourse, uncertainty and equivocation over the ethical significance of acts of revenge, and in particular over their possible resemblances, in motive, purpose or justification, to acts of lawful punishment. A key problem for the coherence of our ethical conception of revenge, it suggests, is the consideration that certain acts of revenge may be just (at least in the minimal sense that the victim of revenge has no grounds for complaint against the revenger) and yet be generally agreed to be morally wrong. It argues that the challenge of explaining adequately why private revenge is morally wrong poses particular difficulty for purely retributive theories of punishment, since without invoking consequentialist reasons it does not seem possible adequately to motivate an objection to just and proportionate acts of revenge. The paper concludes by identifying some of the directions in which further reflection on the moral and political significance of revenge might proceed