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October 1, 2015

"Retributive Desert as Fair Play"

The title of this post is the title of this notable punishment theory paper authored by Peter Westen and available via SSRN. Here is the abstract:

The moral intuition that culpable wrongdoers deserve to suffer is so strong and pervasive that some advocates of retributivism, including Michael Moore, base their positions entirely upon it. Yet, given the enormity of state-imposed punishment, it is incumbent upon students of punishment to seek broader principles of justice by which such intuitions can be explained.

The moral principle that I believe most plausibly explains and justifies criminal desert is Herbert Morris’s theory of unfair advantage. I argue that commentators have failed to address Morris theory in its strongest possible form and failed to examine critically the arguments against it. Morris’s theory not only supplies normative content to intuitions of desert, it also reveals that ‘paying back a debt’ -- the original meaning of the Latin retribution -- is not a “faded and dead metaphor,” as Michael Moore asserts, but an apt description of what it is to deserve suffering for culpable wrongdoing.

October 1, 2015 at 02:37 PM | Permalink


The proper and useful purpose of punishment is to change behavior, that of the defendant, and in social learning, by others seeing him punished (general deterrence, which I have argued may not be used in a tribunal, being unconstitutional). That purpose serves the purpose of government, which is safety.

The balancing, the unjust advantage, and all the other concepts in the paper are from some atavistic philosophic perspective, and a waste of time for the tax payer. Only 1 in 10 serious crimes is punished. So, changes in the punishment of a few losers who get caught is a tiny marginal subject of discussion.

Most people would not care about advantage bookkeeping, if government could keep them safe. The rich and white people live in low crime areas. Crime has been herded into poor and minority areas. Compared to the unfair advantage, the unfairness of that lawyer policy is many thousands of times bigger.

Posted by: Supremacy Claus | Oct 2, 2015 8:53:13 AM

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