Punishment and Ethics

Punishment and Ethics

This page intentionally left blank

Punishment and Ethics New Perspectives Edited by Jesper Ryberg University of Roskilde, Denmark and J. Angelo Corlett San Diego State University, USA

Selection and editorial matter Jesper Ryberg and J. Angelo Corlett 2010 Chapters their authors 2010 Softcover reprint of the hardcover 1st edition 2010 978-0-230-24097-1 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No portion of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, Saffron House, 6 10 Kirby Street, London EC1N 8TS. Any person who does any unauthorized act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The authors have asserted their rights to be identified as the authors of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2010 by PALGRAVE MACMILLAN Palgrave Macmillan in the UK is an imprint of Macmillan Publishers Limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS. Palgrave Macmillan in the US is a division of St Martin s Press LLC, 175 Fifth Avenue, New York, NY 10010. Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throughout the world. Palgrave and Macmillan are registered trademarks in the United States, the United Kingdom, Europe and other countries. ISBN 978-1-349-31669-4 ISBN 978-0-230-29062-4 (ebook) DOI 10.1057/9780230290624 This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. Logging, pulping and manufacturing processes are expected to conform to the environmental regulations of the country of origin. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data Punishment and ethics : new perspectives / edited by Jesper Ryberg, J. Angelo Corlett. p. cm. 1. Punishment Moral and ethical aspects. I. Ryberg, Jesper. II. Corlett, J. Angelo, 1958 K5101.P86 2010 172'.2 dc22 2010023950 10 9 8 7 6 5 4 3 2 1 19 18 17 16 15 14 13 12 11 10

Contents Foreword Notes on Contributors vi vii 1 Punishment and the Socratic Roots of Retributivism 1 J. Angelo Corlett 2 Punishment and British Idealism 16 Thom Brooks 3 Punishment and Restitution 33 David B. Hershenov 4 Punishment and Rehabilitation 52 Christopher Bennett 5 Punishment and the Measurement of Severity 72 Jesper Ryberg 6 Punishment and Forgiveness 92 Leo Zaibert 7 Punishment and Dignity 111 Thomas S. Petersen 8 Punishment and Torture 130 Stephen Kershnar 9 Punishment and Public Opinion 149 Jesper Ryberg 10 Punishment and Discrimination 169 Kasper Lippert-Rasmussen Index 189 v

Foreword State punishment constitutes one of the cardinal issues in legal and social philosophy. That this is the case is not hard to understand. Punishment, after all, involves the infliction of death, suffering, or deprivation on citizens and thereby enacts the very type of treatment of people that would, under normal circumstances, be regarded as abhorrent and as a conspicuous case of morally forbidden behaviour. Such a practice certainly calls for some ethically persuasive justification. Moreover, once one starts analyzing current punishment practices or engages in more detailed reflections on penal questions such as in what manner and how severely different crimes should be punished a plethora of challenging ethical problems arise, all calling for thorough consideration. Thus, both the obvious moral significance of the issue and the variety of the problems which a punishment practice gives rise to have contributed to placing punishment as a subject at the heart of legal and social theorizing. The essays in this book concern aspects of the basic question of the justification of a penal practice, as well as a number of more detailed challenges which such a practice gives rise to. The aim has not been to provide the reader with a systematic overview of rival positions or problems. Nor do the essays provide introductions to the field. Rather, the authors have been asked to present argued papers on what they regard as interesting problems. Thus, the chapters can be read in any order. The reader may choose to pick out one chapter which is of particular interest, or read the entire collection thereby, hopefully, getting some sort of snapshot of recent research within the field. We hope that the reader will find the book valuable and that it will constitute one small step forward in the ongoing discussion of the ethics of punishment. We would like to thank the authors for their contributions and enthusiasm. Moreover, we wish to thank the publisher and all other persons who have kindly helped to bring this work about. Jesper Ryberg and J. Angelo Corlett vi

Notes on Contributors Christopher Bennett is Senior Lecturer in the Department of Philosophy, University of Sheffield, UK. Among other things, he is the author of The Apology Ritual: A Philosophical Theory of Punishment (CUP, 2008). His main interests lie in ethics, political philosophy and moral psychology. Thom Brooks is Reader in Political and Legal Philosophy at the University of Newcastle, UK. His recent books include Hegel s Political Philosophy: A Systematic Reading of the Philosophy of Right (2007) and The Global Justice Reader (2008). He is currently completing a monograph on punishment and a collection on Rawls s Political Liberalism co-edited with Martha Nussbaum. His interests include British and German Idealism, democratic theory, global justice, human rights, jurisprudence and the philosophy of punishment. He is founder and editor of the Journal of Moral Philosophy. J. Angelo Corlett is Professor of Philosophy & Ethics at San Diego State University, and the author of more than 100 books and articles, including Heirs of Oppression (Rowman & Littlefield, forthcoming), The Errors of Atheism (Continuum, 2010), Responsibility and Punishment (Springer, 2006, 2004, 2001), Race, Rights, and Justice (Springer, 2009), Interpreting Plato s Dialogues (Parmenides, 2005), Race, Racism, and Reparations (Cornell, 2003), Terrorism: A Philosophical Analysis (Kluwer, 2003), Analyzing Social Knowledge (Rowman & Littlefield, 1996). He is also the editor-in-chief of The Journal of Ethics: An International Philosophical Review and editor of Equality and Liberty: Analyzing Rawls and Nozick (MacMillan, 1991). His articles have appeared in such journals as the American Philosophical Quarterly; Analysis; The Classical Quarterly; Journal of Social Philosophy; and Philosophy. David B. Hershenov is a Professor of Philosophy at the University at Buffalo. His primary research interest is in the practical implications of the metaphysics of personal identity. He is currently working on a book titled The Metaphysical Foundations of Bioethics. Stephen Kershnar is a Professor of Philosophy at the State University of New York at Fredonia and is also an attorney. He focuses on applied ethics and political philosophy. Kershnar has authored over fifty articles on such diverse topics as torture, affirmative action, pornography, hell, vii

viii Notes on Contributors adult-child sex, the most valuable player, equal opportunity, slavery and the nature of pleasure. He is the author of four books: Desert and Virtue: A Theory of Intrinsic Value (Lexington Books, 2010), Sex, Discrimination, and Violence (University Press, 2009), Justice for the Past (SUNY Press, 2004) and Desert, Retribution, and Torture (University Press, 2001). Kasper Lippert-Rasmussen is Professor of Political Theory at the University of Århus, Denmark. He is associate editor of Ethics and member of the editorial boards of Utilitas and Economics and Philosophy. Recent publications include Scanlon on the Doctrine of Double Effect, Social Theory and Practice, 36(4) (2010); Nationalism and Multiculturalism in A World of Immigration (Palgrave Macmillan, 2009), co-edited with N. Holtug and S. Lægaard; and Against Self-Ownership, Philosophy and Public Affairs, 36(1) (2008). Presently, he is working on a book-length project on the (im)morality of discrimination. Jesper Ryberg is Professor of Ethics and Philosophy of Law at the University of Roskilde, Denmark. His recent books include The Ethics of Proportionate Punishment (Kluwer Academic Publishers, 2004), The Repugnant Conclusion (Kluwer Academic Publishers, 2004), Normative Ethics: Five Questions (Automatic Press, 2007 co-edited with T. S. Petersen), New Waves in Applied Ethics (Palgrave Macmillan, 2007, co-edited with T. S. Petersen). He is the author of numerous articles and book contributions. His current interests lie primarily in criminal justice ethics and other parts of applied ethics. Thomas S. Petersen is Associate Professor of Ethics and Philosophy of Law at the University of Roskilde, Denmark. His recent books include Normative Ethics: Five Questions (Automatic Press, 2007 co-edited with J. Ryberg), New Waves in Applied Ethics (Palgrave Macmillan, 2007, co-edited with J. Ryberg). He is the author of numerous articles and papers, for example, Bioethics, Criminal Law and Philosophy, Journal of Medical Ethics, Journal of Happiness Studies and Theoria, and several book contributions. His current interests lie primarily in criminal justice ethics and the ethics of sport. Leo Zaibert is the Chair of the Department of Philosophy at Union College, in New York, USA. He is the author of Five Ways Patricia can Kill her Husband: A Theory of Intentionality and Blame (Open Court, 2005), and of Punishment and Retribution (Ashgate, 2006). He is the author of numerous articles and book contributions. His current interests lie primarily on punishment, forgiveness and on the political implications of state responses to wrongdoing.