In this article, I ask whether the state, as opposed to its individual members, can intelligibly and legitimately be criminalized, with a focus on the possibility of its domestic criminalization. I proceed by identifying what I take to be the core objections to such criminalization, and then investigate ways in which they can be challenged. First, I address the claim that the state is not a kind of entity that can intelligibly perpetrate domestic criminal wrongs. I argue against (...) it by building upon an account of the modern state as a moral agent proper, capable of both culpable moral and legal wrongdoing. I then consider objections to the intelligibility and legitimacy of subjecting states to domestic criminal processes, which primarily find their source in the assumption that such subjection would necessarily involve the state prosecuting, judging, and punishing itself. I argue that whether this (questionable) assumption is sound or not, it does not create the kinds of unsolvable quandaries its exponents think it does. I then move on to reject the distinct, yet related, objection that, at least in aspiring liberal jurisdictions, treating the state as a criminal objectionably involves extending to it various substantive and procedural guarantees that, given its nature and raison d’être, it should not have. Finally, I discuss three central objections to punishing the state. First, that organizations like states do not have the phenomenal consciousness required to suffer punishment. Second, that the constant possibility of dispersion of state punishment amongst individual members stands in the way of its justification. Lastly, that whatever justification there may be for making things harder for the state in response to its culpable wrongdoing, such treatment need not be understood as punishment. While partially conceding the strength of these objections, I strive to loosen their grip in ways that show that justified punishment of the state, meaningfully understood as such, remains a distinct possibility. I conclude by contrasting supposed alternatives to the criminalization of states, and by contending that my analysis leaves us with enough to keep the possibility of state criminalization on the table as a justifiable response to state wrongdoing. (shrink)

Nicola Lacey presents a new approach to the question of the moral justification of punishment by the State. She focuses on the theory of punishments in context of other political questions, such as the nature of political obligation and the function and scope of criminal law. Arguing that no convincing set of justifying reasons has so far been produced, she puts forward a theory of punishments which places the values of the community at its centre.

Most of us think that states are justified in incarcerating criminals, sometimes for decades. In this paper I suggest that if states are justified in this, they are also justified in inflicting certain forms of corporal punishment. Many forms of corporal punishment are less burdensome than long-term incarceration, and arguably, they are also cheaper, fairer, more deterring, and less destructive of the social and economic networks that convicts often depend on for future reintegration into society. After presenting a (...) pro tanto case for corporal punishment, I consider a number of objections. I conclude that although there are genuine downsides to corporal punishment that must be taken very seriously, the case for the judicial use of this punishment method is much stronger than what is commonly assumed. (shrink)

Contrasting two standard models of corporate responsibility—the so-called “collectivist” and “individualist” model—this essay proposes a third option, namely, a discursive conception of responsibility and examines whether and how this conception can be applied to the corporate level. It does so by taking a careful look at one of the preconditions of individual discursive responsibility, i.e. discursive practical reason, and discussing how corporate agents can meet this precondition. Building on this new concept, the essay also offers a novel (...) approach to justifying corporate responsibility by referring to an argument advanced by Rainer Forst stating that a fundamental human right to justification is the normative core of any kind of responsibility and combining it, in a second step, with an argument recently proposed by Philip Pettit and Christian List showing the impossibility of forming consistent group attitudes and beliefs as a function of the attitudes and beliefs of individual group members. Finally, this essay outlines certain preliminary conclusions about the incorporation of responsibility in a corporate context. (shrink)

In ‘Why Criminal Law: A Question of Content?’, Douglas Husak argues that an analysis of the justifiability of the criminal law depends upon an analysis of the justifiability of state punishment. According to Husak, an adequate justification of state punishment both must show why the state is permitted to infringe valuable rights such as the right not to be punished and must respond to two distinct groups of persons who may demand a justification (...) for the imposition of punishment, namely, individuals subjected to punishment and the society asked to support the institution of punishment. In this discussion, I analyse Husak’s account of the right not to be punished with an eye to showing that the parameters of that right do not extend to the cases that would make it controversial. I also consider two other distinct groups of persons who have equal standing to alleged offenders and society to demand justification for the imposition of state punishment, namely, direct victims of crimes and criminal justice officials. (shrink)

This essay poses the question of whether grassroots organizations can provide an alternative center of authority to the state in inducing multinational corporations to incorporate human rights criteria in their investment and trade decisions. In examining the anti-apartheid movement and attempts to replicate it in the 1990s in the campaigns against corporate involvement in Burma and Nigeria, it presents a mixed picture. In each case, citizen pressures increased the costs and risks of "business as usual" with target states (...) and induced corporations either to undertake social obligations or to disengage beyond what was required by national regulations or market forces. At the same time, nonstate actors are limited by the fact that they can induce but, unlike the state, cannot command corporate behavior; their success is dependent upon state policies; and their most powerful weapon—municipal procurement power—has been predominantly a U.S. phenomenon. (shrink)

The idea that victims of social injustice who commit crimes ought not to be subject to punishment has attracted serious attention in recent legal and political philosophy. R. A. Duff has argued, for example, a states that perpetrates social injustice lacks the standing to punish victims of such injustice who commit crimes. A crucial premiss in his argument concerns the fact that when courts in liberal society mete out legitimate criminal punishments, they are conceived as acting in the name (...) of all citizens—on behalf of the whole political community. Resisting this premiss, Peter Chau has suggested that courts ought to be conceived as acting only in the name of “just citizens”: citizens who cannot be plausibly seen as having contributed to distributive injustice. When conceived in this way, Chau argues, courts can no longer plausibly be regarded as lacking standing to punish. This article uses the debate between Duff and Chau to explain why the question of whether to punish socially deprived offenders can only be answered adequately when connected to broader concerns of democratic theory. Specifically, it argues that Chau’s proposal is not available within the context of the kind of political community upon which (Duff rightly believes) a system of liberal criminal law depends for its justification and maintenance: a community in which citizens see the law as embodying shared norms whose specific demands they disagree about. State officials are morally permitted to see themselves as acting on behalf of a subset of the citizenry, I argue, only in circumstances of democratic crisis : circumstances in which a moral community can no longer be plausibly said to exist. (shrink)

Managers often ask why their firm should have an ethics program, especially if no one has complained about unethical behavior. The pursuit of business ethics can cost money, they say. It can lose sales to less scrupulous competitors and can drain management time and energy. But as Harvard business professor Francis Aguilar points out, ethics scandals (such as over Beech-Nut's erzatz "apple juice" or Sears's padded car repair bills) can severely damage a firm, with punishing legal penalties, bad publicity, and (...) irreparably injured customer relations. Equally important if less obvious, unethical behavior can undermine a firm's organizational spirit. On the other hand, Aguilar argues, in a well run firm, ethical programs can actually enhance corporate performance, strengthening the company at every level and supercharging employee risk taking and innovation. In Managing Corporate Ethics, Aguilar shows managers how to create ethical programs within their organizations that not only discourage large-scale wrongdoing, but can contribute substantially to the achievement of corporate excellence. Aguilar's program is down-to-earth and comprehensive, and based on his extensive research on highly successful, ethical companies, both large and small. He recommends action on three fronts: first, get senior management to provide effective ethical leadership; second, set up an ethics program that promotes concern for the interests of people affected by the firm's operations and that provides safeguards against corrupting business pressures; and third, staff the company with ethical people and surround the organization with ethical advisors (including legal, financial, accounting, tax, and marketing consultants). To illuminate this three-step program, Aguilar incorporates the lessons learned in his in-depth study of ten prominent firms with proven successful ethics programs--among them Hewlett-Packard, Johnson & Johnson, Nucor Steel, Cray Research, ServiceMaster, and Texas Instruments. He examines Lincoln Electric's attention to compensation and job security to ensure quality products and to reduce the pressure or temptation to act unethically. He shows how General Mills, while pushing product line managers to compete aggressively, uses corporate staff units to guard against illegal or unacceptable claims (testing cake recipes, for example, to see if a product's quality fails under the less-than-perfect conditions of a normal kitchen). And he details how Armstrong World Industries uses pep talks, inspirational stories, role models, and ready access to management to promote ethical standards among employees. Throughout, Aguilar demonstrates convincingly that an ethical program pays dividends: that employees, suppliers, customers, and the community at large know when they are being treated in a positive and constructive manner, and are likely to respond in kind. Packed with real life examples of successful (and failed) ethical programs, Managing Corporate Ethics is a valuable roadmap to an often overlooked source of business success. (shrink)

Capital punishment—the legally authorized killing of a criminal offender by an agent of the state for the commission of a crime—stands in special need of moral justification. This is because execution is a particularly severe punishment. Execution is different in kind from monetary and custodial penalties in an obvious way: execution causes the death of an offender. While fines and incarceration set back some of one’s interests, death eliminates the possibility of setting and pursuing ends. While (...) fines and incarceration narrow one’s routes to happiness, death eliminates its possibility. Not surprisingly, there is much debate about the moral permissibility of capital punishment. This entry maps the terrain of this debate. The first section discusses justifications of the death penalty as they appear in major theories of punishment. The second section surveys moral objections to execution that apply to most justifications. The third addresses procedural criticisms, which do not target the morality of execution so much as the justice of its implementation. (shrink)

The question of corporate moral responsibility – of whether it makes sense to hold an organisation corporately morally responsible for its actions,rather than holding responsible the individuals who contributed to that action – has been debated over a number of years in the business ethics literature. However, it has had little attention in the world of health care ethics. Health care in the United Kingdom(UK) is becoming an increasingly corporate responsibility, so the issue is increasingly relevant in the (...) health care context, and it is worth considering whether the specific nature of health care raises special questions around corporate moral responsibility. For instance, corporate responsibility has usually been considered in the context of private corporations, and the organisations of health care in the UK are mainly state bodies. However, there is enough similarity in relevant respects between state organisations and private corporations, for the question of corporate responsibility to be equally applicable. Also, health care is characterised by professions with their own systems of ethical regulation. However, this feature does not seriously diminish the importance of the corporate responsibility issue, and the importance of the latter is enhanced by recent developments. But there is one major area of difference. Health care, as an activity with an intrinsically moral goal, differs importantly from commercial activities that are essentially a moral, in that it narrows the range of opportunities for corporate wrongdoing, and also makes such organisations more difficult to punish. (shrink)

Punishment is a phenomenon which occurs in many contexts. Discussions of punishment assume punishment is criminal punishment carried out by the State. This book contains an account of punishment which overcomes the difficulties of competing accounts and treats punishment comprehensibly to better understand how it differs from similar phenomena, discussing its justification fruitfully.

Over the past ten years or so, there has been a renewed interest in the moral education theory of punishment. The attractions of the theory are numerous, not least of which is that it offers hopes for a breakthrough in the apparently intractable debate between deterrence theorists and retributivists. Nevertheless, I believe there are severe problems with recent formulations of the theory. First, contemporary educationists all place great emphasis on autonomy, yet fail to show how continued respect for autonomy (...) is compatible with achievement of their stated punitive goals. Second, educationists have, and possibly must, take incarceration as the best available punitive sanction. Yet it is unclear how morally educative such a punishment will be. Third, contemporary educationists view punishment as a benefit to be conferred on an offender. But educationists have not succeeded in arguing that society is obligated to confer such benefits, nor have they adequately defended the Platonic moral psychology necessary to show that moral education is always a benefit to justly punished offenders. Fourth, contemporary educationists are hopeful that an indeterminate sentencing policy can be avoided, but I argue that such a policy is an ineliminable component of an educationist justification of punishment. Finally, I raise some doubts about the scope that educationist goals ought to have in any comprehensive theory of punishment. (shrink)

ABSTRACT:In a series of reports the United Nations Special Representative on the issue of Human Rights and Transnational Corporations has emphasized a tripartite framework regarding business and human rights that includes the state “duty to protect,” the TNC “responsibility to respect,” and “appropriate remedies” for human rights violations. This article examines the recent history of UN initiatives regarding business and human rights and places the tripartite framework in historical context. Three approaches to human rights are distinguished: moral, political, and (...) legal. It is argued that the tripartite framework’s grounding of the responsibility of TNCs to respect human rights is properly understood as moral and not merely as a political or legal duty. A moral account of the duty of TNCs to respect basic human rights is defended and contrasted with a merely strategic approach. The main conclusion of the article is that only a moral account of the basic human rights duties of TNCs provides a sufficiently deep justification of “the corporate responsibility to respect human rights” feature of the tripartite framework. (shrink)

How can a state be morally justified in punishing some of its citizens? In tackling this I shall set aside three important matters: we do not morally approve of all the laws of the land, so that sometimes there is a legal but not a moral case against an offender; we can do more things about crime than just punish the criminals, for example remedying the familial and social conditions that encourage it; and, thirdly, many actual penal institutions do (...) things to convicts that are indefensible by any decent standard. My topic may be humanly less important than any of those three; but I want to discuss it and not them. Like many others, I hold that the punishment is justified only to the extent that it does good, that is, leads to a better over-all state of affairs than would have obtained otherwise. Some versions of this view, however, assign to doing-good a role in which it swamps other considerations which most of us think are also essential to a defensible penal system. My aim in this paper will be remedy this defect - to reconcile a doing-good justification with the rest of what we think about punishment. The fear that this cannot be done has led some to question whether our having penal systems and procedures does any good. Jacobs may be right in stressing how hard it is to discover what the consequences are of any given system of punishment (1999: 540), but it would be lamentable if that led us to omit doing-good from our view of what justifies punishment. I shall return to this topic at the end of Section 7, offering to relieve Jacobs of his fears. I usually think of the good that punishment can do in terms of the deterrence of potential offenders - the punished person or others who learn about his punishment. In all the uncertainty about what our penal procedures achieve, it seems certain that they have a deterrent effect without which our society would be lost. There are other possible goods: making the convict a better person; placating victims and their kin; increasing our sense of the majesty and importance of the law; and so on.. (shrink)

I defend a deontological social contract justification of punishment for philosophers who deny free will and moral responsibility (FW/MR). Even if nobody has FW/MR, a criminal justice system is fair to the people it targets if we would consent to it in a version of original position deliberation where we assumed that we would be targeted by the justice system when the veil is raised. Even if we assumed we would be convicted of a crime, we would consent (...) to the imprisonment of violent criminals if prison conditions were better than the state of nature but deterring enough to prevent the state of nature. (shrink)

David Boonin has recently argued that although no existing theory of legal punishment provides adequate moral justification for the practice of punishing criminal wrongdoing, compulsory victim restitution (CVR) is a morally justified response to such wrongdoing. Here I argue that Boonin’s thesis is false because CVR is a form of punishment. I first support this claim with an argument that Boonin’s denial that CVR is a form of punishment requires a groundless distinction between a state’s (...) response to a criminal offense and its response to an offender’s failure to comply with the sanctions imposed for that offense. I then suggest that this argument points to a definition of punishment that not only meets Boonin’s own desiderata for a definition of punishment but also implies that CVR is a form of punishment. Finally, I argue that CVR is a form of punishment even under Boonin’s own proposed definition of punishment. -/- . (shrink)

In this paper, I discuss a distinctively non-paradigmatic instance of punishment: the punishment of non-citizens. I shall argue that the punishment of non-citizens presents considerable difficulties for one currently popular account of criminal punishment: Antony Duff’s communicative expressive theory of punishment. Duff presents his theory explicitly as an account of the punishment of citizens - and as I shall argue, this is not merely an incidental feature of his account. However, it is plausible that (...) a general account of the criminal law of the kind of idealized state that Duff focusses on will need to say something about how that law deals with non-citizens. In particular, I claim, it will need to provide a justification for punishing them. Because Duff's account says nothing about the punishment of non-citizens, it cannot do so. Furthermore, although Duff's more recent suggestion that non-citizens should be thought of as being guests in the state on whose territory they are present may provide for an account of their criminalization, it cannot easily be extended into an account that provides a justification for their punishment. (shrink)

This chapter examines the tension between the justification and the punishment of civil disobedience, and theorists’ common solutions to it, by focusing on two central questions: first, should the state punish civil disobedience? Second, should the civil disobedient accept punishment? It presents the theoretical lay of the land on each of these questions, with particular attention to American jurisprudence on civil disobedience. The third part takes a step back to ask anew, how should we think about (...) civil disobedience? and uncovers some problematic assumptions behind the common theoretical approach to the “problem” of civil disobedience. (shrink)

This paper addresses The Ends of Harm by Victor Tadros. In it, I attempted to explore some of the implications of Tadros’s theory of punishment, particularly those following from the uneasy relationship between punishment of the offender and D’s duty to protect the victim from future harm. Among my concerns were: the apparent underinclusiveness of Tadros’s theory of punishment; the vague and unpredictable scope of D’s liabilities; the taking away by the state of V’s right to (...) be protected; and the lack of inherent limitations on the appropriate forms and amounts of punishment. I also questioned the true meaning of the duty incurred by D as a result of D’s wrongdoing and suggested that protection of Vs from future harm may not be as essential to Tadros’s justification of punishment as he has argued. (shrink)

ABSTRACT:Like most egalitarian political philosophers, John Rawls believes that a just society will rely on markets and business firms for much of its economic activity—despite acknowledging that market systems will tend to create very unequal distributions of goods, opportunities, power, and status. Rawls himself remains one of the few contemporary political philosophers to explore at any length the way an egalitarian theory of justice might deal with fundamental options in political economy. This article examines his arguments and conclusions on these (...) topics. It argues that contemporary Rawlsians will reach different conclusions if they take more seriously than Rawls himself did: (1) the implications, for the political culture and the democratic regulatory state, of large firms competing in adversarial markets characterized by the inevitable “fact of market failure,” and (2) the relevance of ownership and governance relationships involving different kinds of business firms. And with respect to the second point, Rawlsians and other egalitarians have much to learn from contemporary economic, legal, and sociological theories of the firm, and the role of these theories in the structure of and rationale for corporate law. This is the kind of social theory that Rawls believes is relevant to the justification and application of theories of justice, but he himself did not appeal to it in his writings on political economy. Contemporary egalitarians can and should appeal to it now, and in doing so correct errors and omissions in Rawls’s analysis. But taking seriously the two points mentioned above will also force egalitarians who support efficient markets to face difficult dilemmas or compromises of their own. (shrink)

Are corporations morally defensible sorts of entities? How might we go about showing that they are? Thomas Donaldson offers us the most detailed contractarian justification for the moral defensibility of corporations. In this paper I show how we can significantly develop this sort of justification to yield a more compelling contractarian justification, though one that is importantly conditional. The primary points I take up in this paper are these:1. The question Donaldson poses to generate his contract is (...) not quite as simple as may appear. The sort of transformation we need to consider is more complex than the sort Donaldson describes.2. Partly because of considerations that arise in discussing the first point, the contract we are considering is a more conditionalagreement. The terms of the agreement will vary depending on the kind of state we are assuming prevails. The sort of contract we wantto draw up is at least a three-way contract: between society, productive organizations and the state. The sort of agreement we reach will have the following form: society a agrees to allow productive organizations of type b to exist if we assume state c will do various things (d1 to dn), productive organizations will do various things (e1 to en) and members of society will do various things (f1 to fn). Importantly, if state c is not doing d1 to dn, productive organizations may not be morally defensible.3. The terms of the contract that can be derived would benefit from the introduction of some of Rawls’s apparatus.4. When we consider the right questions, with more of the background institutions filled in, and when we include some more social contract apparatus, we get a better contract which fills in for us not only the obligations of business but, importantly, many obligationsfor government as well. (shrink)

Within the United States, the most prominent justification for criminal punishment is retributivism. This retributivist justification for punishment maintains that punishment of a wrongdoer is justified for the reason that she deserves something bad to happen to her just because she has knowingly done wrong—this could include pain, deprivation, or death. For the retributivist, it is the basic desert attached to the criminal’s immoral action alone that provides the justification for punishment. This means (...) that the retributivist position is not reducible to consequentialist considerations nor in justifying punishment does it appeal to wider goods such as the safety of society or the moral improvement of those being punished. A number of sentencing guidelines in the U.S. have adopted desert as their distributive principle, and it is increasingly given deference in the “purposes” section of state criminal codes, where it can be the guiding principle in the interpretation and application of the code’s provisions. Indeed, the American Law Institute recently revised the Model Penal Code so as to set desert as the official dominate principle for sentencing. And courts have identified desert as the guiding principle in a variety of contexts, as with the Supreme Court’s enthroning retributivism as the “primary justification for the death penalty.” While retributivism provides one of the main sources of justification for punishment within the criminal justice system, there are good philosophical and practical reasons for rejecting it. One such reason is that it is unclear that agents truly deserve to suffer for the wrongs they have done in the sense required by retributivism. In the first section, I explore the retributivist justification of punishment and explain why it is inconsistent with free will skepticism. In the second section, I then argue that even if one is not convinced by the arguments for free will skepticism, there remains a strong epistemic argument against causing harm on retributivist grounds that undermines both libertarian and compatibilist attempts to justify it. I maintain that this argument provides sufficient reason for rejecting the retributive justification of criminal punishment. I conclude in the third section by briefly sketching my public health-quarantine model, a non-retributive alternative for addressing criminal behavior that draws on the public health framework and prioritizes prevention and social justice. I argue that the model is not only consistent with free will skepticism and the epistemic argument against retributivism, it also provides the most justified, humane, and effective way of dealing with criminal behavior. (shrink)

Modern analytical political philosophy—characterized most notably by the work of John Rawls—has had very little to say about how punishment in particular and criminal law more generally might be justified. This is a puzzling omission, as punishment can be seen as the most serious use of coercive state power and therefore the one in greatest need of philosophical justification. With the idea of filling this gap, this chapter analyzes several major political theories of recent decades and (...) examines how criminal justice might fit into their thought. After discussing the various political theories of libertarianism, liberalism, communitarianism, Marxism, and republicanism, I offer a limited defense of one such theory, Rawls’s “political liberalism,” as offering a suitable way to approach issues of criminal justice and punishment in modern society. More broadly, my chapter invites political philosophers to speak more often and more specifically about how criminal justice fits within their theories. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Human Reproduction: Dominion and LimitsRichard A. McCormick S.J. (bio)The general struggle throughout Christian history has been to seek the proper balance between dominion and limits, intervention and nonintervention, givenness, and creativity. This struggle has worked itself out in six areas that touch human life. In this essay, I will revisit the Catholic tradition’s treatment of these in terms of dominion and limits to see whether we can discern developmental (...) patterns that might suggest an approach to issues pertaining to the sources of life (reproductive ethics) as we move into the next century.1. Abortion. The history of the treatment of abortion in the Catholic tradition is the history of an evaluation. This evaluation was somewhat muddied by [End Page 387] unclarity and inconsistency in the use of terms. Thus, some theologians distinguished three types of abortion: prevention of conception, abortion of an inanimate fetus, and abortion of an animated fetus. Others regarded all interventions into the life-giving process as homicides. Still others argued that termination of a nonanimated fetus was justified to save the life of the mother. And still others said such termination was anticipated homicide or the misuse of semen conceptum.Such unclarities and qualifications eventually vanished and produced an evaluation of fetal life that yielded to very few competing interests, what John Noonan (1970) referred to as “an almost absolute value.” There was some dominion or control, but the limits became increasingly clear and powerful.2. Individual and corporate self-defense. Augustine disallowed lethal individual or personal self-defense, but established the first elementary rules for war. Aquinas allowed both. Vitoria, Suarez, and others refined the criteria justifying war (jus ad bellum) and listed them as three: recovery of property, resistance to aggression, and vindication of injuries (injustices). Pius XII narrowed these to a single reason: national self-defense. The Challenge of Peace (NCCB 1983) moves away from the licitness of nuclear war and nuclear deterrence even for self-defense. Once again, the limits to the dominion over life in war grow stronger and more powerful even as the weapons of such dominion grow more powerful.3. Capital punishment. Over the centuries, Christian thinkers, such as Thomas Aquinas, permitted the use of capital punishment. Three justifications were proposed to found this right of the state: retribution, deterrence, and reform. In the past decades, however, these justifications have been seriously questioned. Both the American and Philippine bishops’ conferences have rejected all use of capital punishment. Most recently John Paul II (1995, n. 56, p. 709) adduces defense of society as the only possible justification for it and sees such cases as “very rare if not practically non-existent.”4. The preservation of life. The theme of a balance between dominion and limits is perhaps nowhere clearer than in the Catholic approach to life preservation. Catholic tradition does not accept our culture’s rejection of death. Rather it asserts that the facts that we are pilgrims, that Christ has overcome death and lives, and that we also will live with him yield a general value judgment on the meaning and value of life as we now live it: Life is a basic good but not an absolute one. It is basic because, as the Congregation for the Doctrine of the Faith (1980, p. 511) worded it, it is the “necessary source and condition of every human activity and of all society.” It is not absolute because there are higher goods for which life can be sacrificed—e.g., the glory of God, salvation of souls, service of one’s brethren, and the like. Thus in John (15:13): “There is no greater love than this: to lay down one’s life for one’s friends. John Paul II (1995, n. 47, p. 706) briefly summarizes this in Evangelium Vitae: “The life of the body in its earthly state is not an absolute good for the believer.” This value [End Page 388] judgment has immediate relevance for care of the ill and dying: Not all means must be used to preserve life.Thus the Catholic tradition has moved between two extremes: medico-moral optimism or vitalism (which preserves life with all means, at any cost... (shrink)

The piece returns to my earlier challenges of retributivism as the basis of contemporary criminal law, advancing my work on republican political justifications that make central the effect of punishment on citizenship. In short, the justification of punishment should eschew individual retributivist “desert” and focus primarily on the effects of punishment on the entire polity. In particular, this would mean that the effects of mass incarceration would be explicitly a part of justification of punishment. (...) Concretized, members of communities where widespread punishment (incarceration) has damaged collective civic health should explicitly receive discounts on otherwise “retributively justified” punishment. Most obviously, a regime focused on the effect of punishment on civic bonds would explicitly target the vast racial disparities in contemporary punishment regimes, grounding an explicit claim that an African-American or Hispanic defendant from overly punished communities should be punished less and requiring other state resources to secure the safety of the community. While critical, this regime is not solely aimed at racial disparities. This principle would equally address the concentration of punishment in poor, white communities often battered by punishment and policing. Thus, the policy shows a way of building allies across racial lines. (shrink)

Philosophers have highlighted a dilemma for the criminal law. Unjust, racist policies in the United States have produced conditions in which the dispossessed are more likely to commit crime. This complicity undermines the standing of the state to blame their offenses. Nevertheless, the state has reason to punish those crimes in order to deter future offenses. Tommie Shelby proposes a way out of this dilemma. He separates the state’s right to condemn from its right to punish. I (...) raise doubts about Shelby’s proposed resolution. So long as punishment is widely and reasonably understood to condemn crime, Shelby’s proposal does not resolve the dilemma. Moreover, there is reason to think the blaming aspect of punishment plays a role in the justification of its hard treatment. I conclude by considering some other ways out of the dilemma, focusing especially on how the United States might take responsibility for its complicity. (shrink)

In "Kant on Freedom and the Appropriate Punishment," the author begins by noting that in The Metaphysics of Morals , Kant asserts that a wrongdoer should be given a punishment that is similar to his wrongdoing. He then makes two interpretive claims with regard to this assertion.First, he claims that the best way to understand this assertion in the context of other things Kant says is that the state is obligated to punish a wrongdoer in a way (...) that imposes on the wrongdoer an amount of suffering equal to what he caused and through an action that is similar in type to the wrongdoer's offense. The argument in support of this claim occurs in section II and rests on two more specific interpretive claims about Kant's theory: that state punishment should resemble the wrongdoer's acts and should involve the same level of suffering as was involved in the original wrongdoing and that punishment in accordance with these constraints is an obligatory duty.Second, the author claims that on Kant's theory this principle of appropriate punishment is justified because it restores equality in the distribution of freedom for members of the state. The argument in support of this claim occurs in section III. The argument rests in part on Kant's justification of the state and coercion in terms of the value of equalized freedom. By applying this same justification to Kant's principle of appropriate punishment, the author claims to be able to account for the principle as well as to relate the principle to Kant's political theory. Der vorliegende Beitrag beginnt mit der Feststellung, daß Kant in der Metaphysik der Sitten geltend macht, ein Übeltäter solle eine Bestrafung erleiden, die mit seiner Tat vergleichbar ist. Im Hinblick auf diese Forderung Kants werden zwei Thesen aufgestellt.Erstens wird behauptet, die genannte Forderung sei vor dem Hintergrund sonstiger Äußerungen Kants am besten dahingehend zu verstehen, daß der Staat verpflichtet sei, einen Übeltäter in einer Weise zu bestrafen, die diesem ein Maß von Leid zufügt, das dem von ihm selbst verursachten gleichkommt. Geschehen müsse dies durch eine Handlung, die in ihrer Art dem vom Übeltäter begangenen Verbrechen entspricht. Die Begründung dieser These erfolgt in Abschnitt II und stützt sich wiederum auf zwei mehr in die Einzelheiten gehende Thesen zu Kants Theorie: Staatliche Bestrafung sollte den Handlungen des Übeltäters ähneln und Leid in einer Größenordnung mit sich bringen, wie es auch die ursprüngliche Tat zur Folge hatte. Bestrafung in Übereinstimmung mit diesen Bedingungen ist eine Pflicht.Zweitens wird die Auffassung vertreten, dieses Prinzip angemessenen Strafens sei im Rahmen der Theorie Kants gerechtfertigt, weil es für die Mitglieder des Staates die Gleicheit in bezug auf die Verteilung der Freiheit wiederherstelle. Die Begründung dieser These findet sich in Abschnitt III und beruht zum Teil auf Kants Rechtfertigung von Staat und Zwang durch den Verweis auf den Wert gleichmäßig verteilter Freiheit. Die Übernahme eben dieser Rechtfertigung auch für Kants Theorie angemessenen Strafens soll sowohl dazu dienen, das Prinzip selbst zu begründen, als auch dazu, es in Kants politische Theorie einzuordnen. (shrink)

We argue that the dead donor rule, which states that multiple vital organs should only be taken from dead patients, is justified neither in principle nor in practice. We use a thought experiment and a guiding assumption in the literature about the justification of moral principles to undermine the theoretical justification for the rule. We then offer two real world analogues to this thought experiment, voluntary active euthanasia and capital punishment, and argue that the moral permissibility of (...) terminating any patient through the removal of vital organs cannot turn on whether or not the practice violates the dead donor rule.Next, we consider practical justifications for the dead donor rule. Specifically, we consider whether there are compelling reasons to promulgate the rule even though its corresponding moral principle is not theoretically justified. We argue that there are no such reasons. In fact, we argue that promulgating the rule may actually decrease public trust in organ procurement procedures and medical institutions generally – even in states that do not permit capital punishment or voluntary active euthanasia.Finally, we examine our case against the dead donor rule in the light of common arguments for it. We find that these arguments are often misplaced – they do not support the dead donor rule. Instead, they support the quite different rule that patients should not be killed for their vital organs. (shrink)

The emotions of shame and guilt have recently appeared in debates concerning legal punishment, in particular in the context of so called shaming and guilting penalties. The bulk of the discussion, however, has focussed on the justification of such penalties. The focus of this article is broader than that. My aim is to offer an analysis of the concept of legal punishment that sheds light on the possible connections between punishing practices such as shaming and guilting penalties, (...) on the one hand, and emotions such as guilt, shame, and perhaps humiliation, on the other. I␣contend that this analysis enhances our understanding of the various theories of punishment that populate this part of criminal law theory and thereby sharpens the critical tools needed to assess them. My general conclusion is that, in different ways, all of the theories we encounter in this area can benefit from paying renewed attention to the nature of the connection between the state’s act of punishing and its expected or perceived emotional effect on the individual. (shrink)

States are not only claiming the right to grant or deny entry to their territories but also enforcing this right against non-citizens in ways that cause significant harm to these individuals. In this article, I argue that endorsing the presumptive right to restrict immigration does not settle the question of when or how it may permissibly inflict harm on individuals to enforce this right. I examine three distinct justifications for causing harm to individuals. First, the justification of defensive harm (...) holds that harming individuals is morally permissible when they pose an unjustified threat to others. Second, the justification of protecting property states that harming individuals is morally permissible when they pose an unjustified threat to others’ property interests. Third, I consider the state punishment justification, which maintains that harming individuals is morally permissible when punishment is an appropriate response to their previous conduct. I conclude that any immigration enforcement measure that involves lethal force or the infliction of severe bodily harm is morally impermissible, whether it is used to defend the state or its property. Moreover, criminal sanctions for immigration violations are difficult to justify. (shrink)

A central tenet of medical ethics holds that it is permissible to perform a medical intervention on a competent individual only if that individual has given informed consent to the intervention. However, in some circumstances it is tempting to say that the moral reason to obtain informed consent prior to administering a medical intervention is outweighed. For example, if an individual’s refusal to undergo a medical intervention would lead to the transmission of a dangerous infectious disease to other members of (...) the community, one might claim that it would be morally permissible to administer the intervention even in the absence of consent. Indeed, as we shall discuss below, there are a number of examples of public health authorities implementing compulsory or coercive measures for the purposes of infectious disease control (IDC). The plausibility of the thought that non-consensual medical interventions might be justified when performed for the purpose of IDC raises the question of whether such interventions might permissibly be used to realize other public goods. In this article we focus on one possibility: whether it could be permissible to non-consensually impose certain interventions that alter brain states or processes through chemical or physical means on serious criminal offenders. We shall suggest that some such interventions might be permissible if they safely and effectively serve to facilitate the offender’s rehabilitation and thereby prevent criminal recidivism. (shrink)

The purpose of the study is to reveal the relationship between the justification of strategic decisions and the increase in efficiency of transnational corporations (TNC). The conceptual bases of the justification of strategic decisions for increasing the efficiency of TNC are suggested, the development of which involves research of the preconditions on which their implementation is based, analysis of the main aspects of TNC's activity and accordance with the principles of justification of strategic decisions, strategic decision-making. The (...) results of the comprehensive diagnostic examination of TNC of leading bearings manufacturers are presented, which revealed the problems of their functioning on the market, changes in the dynamics of performance indicators, differences in the use of opportunities, financial state, strategic positions on the market, the efficiency of made decisions. A model for selecting a decision strategy for TNC is suggested. Practical recommendations of implementing strategic decisions for increasing the efficiency of activity of TNC of leading bearings manufacturers are given. (shrink)

In this follow up to I Was Wrong: The Meanings of Apologies, Nick Smith expands his ambitious theories of categorical apologies to civil and criminal law. After rejecting court-ordered apologies as unjustifiable humiliation, this book explains that penitentiaries were originally designed to bring about penance - something like apology - and that this tradition has been lost in the assembly line of mass incarceration. Smith argues that the state should modernize these principles and techniques to reduce punishments for offenders (...) who demonstrate moral transformation through apologizing. Smith also explains the counterintuitive situation whereby apologies come to have considerable financial worth in civil cases because victims associate them with priceless matters of the soul. Such confusions allow powerful wrongdoers to manipulate perceptions to disastrous effect, such as when corporations or governments assert that apologies do not equate to accepting blame or require reform or redress. (shrink)

Kant maintains that retribution is the only morally sound justification for criminal punishment. He claims that all just criminal punishment must conform to the “principle of equality,” an inflexible juridical rule which takes the form of a categorical imperative. Focusing on his further claim that the principle of equality establishes that capital punishment is the only suitable punishment for murder, I question Kant’s contention that the principle of equality is a categorical imperative. Following two lines (...) of inquiry drawing upon the nature of a categorical imperative, I suggest that the principle of equality is a principle conditioned by experience, a hypothetical imperative which Kant only shows to be consistent with, not necessarily mandated by, the idea of a just civil state. (shrink)

On 4 December 2006, during discussions on the Corporate Manslaughter and Corporate Homicide Bill, Andrew Dismore, Member of Parliament and then Chair of the Joint Committee on Human Rights, said, ‘Organisations can kill people … but it is the actions and omissions of people in organisations that cumulatively cause death’. However, the corporate entity is a vehicle for the communal actions of those who guide the business activities. Attempting to seek out persons or people that are solely (...) responsible for deaths and violations of human rights caused by companies is fruitless. The entity is a vehicle for those actions, it possesses its own, often deep, pockets of finance and resources, and it has a public image. It is more useful to punish the corporate entity, in instances where the corporate behaviour has led to death and human rights abuses, as it is in seeking out individual defendants. Soft law options have not brought about a sufficient reduction in instances of deaths caused by corporate behaviour across jurisdictional borders. This article will argue that the time has now come to establish an international hard law on corporate killing, and for states to ensure that there is a viable path towards a redress for victims and their families along with adopting a duty to assist the victim or their family to pursue redress to ensure a fair balance of power against transnational companies. (shrink)

A punitive desert-claim should be understood as a claim about the intrinsic value of punishment, where this value is grounded in an act or feature of the person to be punished. The purpose of my project is to explore the structure and justification of such punitive desert-claims. ;I argue that a true punitive desert-claim takes the form and , and that belief in these principles is justified on the basis of our considered moral judgments. The Principle of Deserved (...) Punishment. A person who deserves punishment deserves it because, and only because, she has performed a culpable wrongdoing. The Principle of the Proportionality of Deserved Punishment. A person receives the punishments she deserves if and only if the punishment she receives is proportional to her culpable wrongdoing. ;My analysis proceeds as follows. In chapter two, I argue in favor of the claim that a culpable wrongdoing is the sole basis for deserved punishment. ;In chapter three, I put forth an account of the structure of a punitive desert-claim and argue that deserved punishment is not justified via the consequences that result from punishment. Having clarified the basis and structure of deserved punishment, I then set out to provide the justification for it. ;In chapter four, I argue that deserved punishment cannot be justified by an appeal to more general moral principles. My argument here rests on the criticism of different types of theory that attempt to justify deserved punishment on the grounds of more general principles. Here I criticize those theories that attempt to justify and on the grounds of: the culpable wrongdoer's choice, the culpable wrongdoer's hypothetical consent, the state's promise to punish, the demands of a justified institution, and distributive justice. ;In the last chapter I argue that and best account for our considered moral judgments about specific cases. From this, I conclude that our belief in both principles is justified. (shrink)

Chad Flanders has argued that retributivism is inconsistent with John Rawls’s core notion of public reason, which sets out those considerations on which legitimate exercises of state power can be based. Flanders asserts that retributivism is grounded in claims about which people can reasonably disagree and are thus not suitable grounds for public policy. This essay contends that Rawls’s notion of public reason does not provide a basis for rejecting retributivist justifications of punishment. I argue that Flanders’s interpretation (...) of public reason is too exclusionary: on it, public reason would rule out any prominent rationale for punishment. On what I contend is a better interpretation of public reason, whether retributivism would be ruled out as a rationale for punishment depends on whether a retributivist account can be constructed from shared political commitments in a liberal democracy. Some prominent versions of retributivism meet this requirement and so are consistent with public reason. (shrink)

Many philosophers and legal theorists worry about punishing the socially disadvantaged as severely as their advantaged counterparts. One philosophically popular explanation of this concern is couched in terms of moral standing: seriously unjust states are said to lack standing to condemn disadvantaged offenders. If this is the case, institutional condemnation of disadvantaged offenders (especially via hard treatment) will often be unjust. I describe two problems with canonical versions of this view. First, its proponents groundlessly claim that disadvantaged offenders may be (...) punished as severely as advantaged ones, even though such punishment is unjust in light of the state’s loss of standing. Second, and more importantly, moral standing arguments prohibit states from blaming advantaged as well as disadvantaged offenders. This unwelcome outcome suggests that standing approaches incorrectly analyze the source of moral misgivings about punishing the disadvantaged. I conclude that those who share such concerns should put standing accounts aside. (shrink)

There are a number of controversies surrounding responsibility, but few doubt that there is anything conceptually confused or morally problematic about holding competent adults responsible for their free and informed actions. Thus, we regularly praise (and perhaps reward) people for behaving virtuously or blame (and perhaps punish) them for their vicious deeds. In today's world, though, much of the most important good and evil is done not by solitary individuals, but by groups of people acting in concert. The most spectacular (...) technological advances and the most horrific wars, for instance, are often the work of private corporations and political states. And if humanity regularly achieves its greatest triumphs and commits its most deplorable sins as collectives, it is worth exploring the plausibility of holding groups responsible for their actions. (shrink)

The business case for corporate social responsibility (CSR) suggests that by doing good (i.e., engaging in CSR) a firm will do well (i.e., be profitable), and this notion has permeated the linguistic sensemaking of firm actors. But how are firms that articulate business‐case justifications evaluated by various stakeholders? We hypothesize that the way firms communicate their CSR engagement (i.e., accompanied by business‐case justifications or not) differentially impacts stakeholders’ perceived integrity, benevolence and ability trustworthiness of the firm. Conducting the same (...) online experiment with two separate samples from the United States, we replicate three results; business‐case justification for CSR reduces benevolence trustworthiness among employees, increases ability trustworthiness among investors, and has no effect on perceived trustworthiness among consumers. We discuss the implications of our findings for the CSR literature and encourage future researchers to more carefully scrutinize the implications of justifying CSR with the business case. (shrink)

Published on Daily Philosophy 2021-10-18 Why do we have a criminal justice system? What could possibly justify the state punishing its citizens? Philosophers, scholars of law, politicians and others have proposed different justifications, one of them being retributivism: the view that we ought to give offenders the suffering that they deserve for harming others. However, intentionally harming other people and making them suffer is serious business. If we are to do this in the name of what’s right and good, (...) we better be very certain that what we do really is right and good. The so-called Epistemic Argument Against Retributivism calls this certainty into question. (shrink)

This chapter argues that the same logic that imbues the state with the legitimate authority to punish also imposes restraints on that authority. It suggests that scholarship on punishment puts more emphasis on the political legitimacy of state punishment rather than on the moral question of what is deserved by criminals. It turns to Rousseau's social contract based justification for punishment as a crucial resource in that effort. It begins by closely examining Rousseau's claim (...) that the criminal consents to punishment, and by suggesting that his seemingly absurd and perverse claims are actually defensible. It goes on to clarify two senses in which Rousseau's understanding of consent serves to ground the rights of the guilty. First, it argues that the idea of consent itself legitimizes some punishment but also sets strict limits on when and how the state can punish. Second, it argues that Rousseau's account of welfare rights also sets a limit on when the state may rightfully punish. The final two sections of the chapter consider the role of punishment outside the social contract in Rousseau's theory and suggest an important contrast between Rousseau's and Hobbes's conceptions of punishment. (shrink)

Kant gives what appear to be consequentialist and retributivist reasons for his claim that the state must punish criminal offenders. I argue that Kant’s justification is retributivist and not consequentialist. In particular, I argue that Kant’s justification is found in his argument that we must attribute to an offender’s reason the judgment that she must be punished. I argue that other retributivist interpretations as well as interpretations that prioritize consequentialist reasons have little textual support. I also reconstruct (...) an argument that Kant implies for his claim that ius talionis is the proper criterion for determining the quality and quantity of punishment. (shrink)

Markets, just like states, are systems of governance. Their justification must therefore meet similar standards of moral scrutiny, despite the fact that their authority structure is impersonal. In order to argue for the role of markets as systems of governance that raise similar justificatory burdens, this book provides a philosophical account of market institutions. According to this view, shared social institutions define a framework for how members of a political community think and act toward one another, consistent with citizens (...) respecting themselves and one another as free persons, each entitled to guide their activities in light of their own judgments. The market is one of these shared institutions, so its rules must also be consistent with mutual respect as free persons. This perspective represents a fundamentally different way of thinking about economic life, which rejects both the view of economic actors as disconnected individuals in a state of nature and the view of economic actors as mere preference orderings that are inputs to a giant social welfare function. The book formulates a deeper framework for thinking about economic life, which can displace the familiar ideas that underpin contemporary neoliberalism and finance capitalism. In so doing, the book works out the implications of the idea that the burdens of equal citizenship extend to economic life, such that appropriately regulated markets and workplaces elicit and realize a system in which people respect one another as free. The book concludes with a defense of economic democracy, elements of which can be found under German codetermination. (shrink)

How can we make moral sense of the international humanitarian law doctrine of combatant immunity? The doctrine is morally shocking to many: It holds soldiers on both sides of a war immune from criminal prosecution for their otherwise criminal acts of killing, maiming, destroying property, etc., carried out as part of their country's war effort. That is, soldiers who kill as part of an attack benefit from the immunity just as much as those defending their country. Traditionally, just war theorists (...) have tried to provide situation‐specific arguments to show that soldiers on both sides had a good moral justification for their actions. Recently, self‐styled “revisionist just war theorists” have suggested that the doctrine of combatant immunity is just a convention designed to minimize harm. In this article, I suggest that the moral foundation of the doctrine lies in the status of soldiers as public officials in the service of their country. The reason why we hold them immune from prosecution for their war‐making acts is that such acts are properly thought of as acts of a state, rather than as acts of a particular individual. And the reason why states are immune from prosecution for their acts is one of moral standing: No other state has the moral standing to tell another how to carry out the matters that define its jurisdiction. So as long as a country deems (however implausibly) that it must use force to defend itself from aggression, then it may do what is required to defend itself. No other state has the standing to prohibit such acts or to punish those who carry them out. This argument is rooted in an understanding of how individuals may interact as free and equal under law. It does not aim at the perfection of human action, but it does serve to eliminate the worst forms of tyranny. (shrink)

Tax abuse by multinational extractive corporations should be an important subject of attention for global justice because it exacerbates the unjust global distribution of resources and contributes to the resource curse. The amounts of taxes at stake dwarf the current levels of international aid. This abuse is not necessarily unlawful but is enabled by the interaction of complex international tax rules. It is “abuse” because it contravenes a number of theoretical understandings of global tax justice, several of which are explored (...) here: egalitarianism, two variants of restitution-based justifications and corporate citizenship. Within each of these justificatory frames, global justice in the resource context requires restoring a fair share of the benefits from natural resources to the impoverished populations of resource-rich countries. Justice, thus understood, can and should be achieved through the effective taxation of extractive companies. This article is a first step toward filling a lacuna in the literature on taxation and development, which tends to encourage decreased taxation in order to promote foreign investment, to the exclusion of concerns about justice and which conceives taxation as a purely domestic issue, not one involving international rules that have the effect of distributing revenue among nation states. (shrink)

Several European and North American states encourage or even require, via good Samaritan and duty to rescue laws, that persons assist others in distress. This paper offers a utilitarian and contractualist defense of this view as applied to corporations. It is argued that just as we should sometimes frown on bad Samaritans who fail to aid persons in distress, we should also frown on bad corporate Samaritans who neglect to use their considerable multinational power to undertake disaster relief or (...) to confront widespread social ills such as those currently befalling public health (obesity) and the environment (climate change). As such, the corporate duty to assist approach provides a novel justification for sustainable business practices in such cases. The paper concludes by arguing that traditional stakeholder approaches have not articulated this duty of assistance obligation, though a new utilitarian stakeholder theory by Thomas Jones and Will Felps may be coextensive. (shrink)

Name der Zeitschrift: Journal of Ancient History Jahrgang: 4 Heft: 2 Seiten: 240-264.

The aim of this article is to determine whether fixed courses of judicial corporal punishment and non-abusive corporal punishment of children amount to torture. I assess the reasons that have been offered for distinguishing fixed courses of JCP from torture and argue that none is successful. I argue that non-consensual JCP that inflicts severe pain is appropriately classifiable as torture, but that JCP that inflicts mild pain and entirely consensual JCP are not torturous. I consider whether any of (...) the reasons offered for distinguishing JCP from torture can distinguish non-abusive CPC from torture given certain important differences between CPC and JCP. I submit that none of these reasons is successful. I consider other possible reasons for distinguishing non-abusive CPC that inflicts severe pain from torture and argue that none is successful. I conclude that fixed courses of non-consensual JCP which inflict severe pain and non-abusive CPC that inflicts severe pain are correctly classifiable as torture. (shrink)