Responsibility and Punishment: Revised Second Edition

222 Pages·2004·4.101 MB·English

by  J. Angelo Corlett (auth.)

RESPONSIBILITY AND PUNISHMENT
LIBRARY OF ETHICS AND APPLIED PHILOSOPHY
VOLUME 9
Managing Editor:
Govert A. den Hartogh, University of Amsterdam, The Netherlands
RESPONSIBILITY AND
PUNISHMENT
Revised Second Edition
J. ANGELO CORLETT
Department of Philosophy,
San Diego State University,
San Diego, California, U.S.A.
Springer-Science+Business Media, B.V.
A c.I.P. Catalogue record for this book is available from the Library of Congress.
ISBN 978-94-017-0423-6 ISBN 978-94-017-0421-2 (eBook)
00110.1007/978-94-017-0421-2
Printed on acid-free paper
All Rights Reserved
© 2004 Springer Science+Business Media Dordrecht
Originally published by Kluwer Academic Publishers in 2004.
Softcover reprint of the hardcover 2nd edition 2004
No part of the material protected by this copyright notice may be reproduced or
utilized in any form or by any means, electronic or mechanical,
including photocopying, recording or by any information storage and
retrieval system, without written permission from the copyright owner.
For My Mother
Diane Bellotto Corlett
TABLE OF CONTENTS
Preface ix
CHAPTER 1: Introduction 1
CHAPTER 2: The Problem of Responsibility 8
CHAPTER 3: The Problem of Punishment 22
CHAPTER 4: Foundations of a Kantian Retributivism 40
CHAPTER 5: Assessing Retributivism 61
CHAPTER 6: Forgiveness, Mercy, and Retributivism 98
CHAPTER 7: The Problem of Collective Responsibility 113
CHAPTER 8: Corporate Responsibility and Punishment 130
CHAPTER 9: Collective Wrongdoing, Reparations,
and Native Americans 147
CHAPTER 10: Conclusion 189
List of Sources 192
Index 210
VB
PREFACE TO THE SECOND EDITION
The contents of this book represent over a decade of my work in studying and
assessing critically philosophical work in the areas related to responsibility and
punishment theories. Certain chapters or sections of chapters of this book
contain some of what I have contributed in various philosophy journals or other
sources. For example, the contents of Chapter 4 consists of a revised version of
an essay by the same title published in The Southern Journal of Philosophy to
which thanks are expressed for the use of it herein. Substantial sections of
Chapter 5 consist of an essay, "Making Sense of Retributivism," Philosophy, 76
(2001), pp. 77-11 0, and gratitude is expressed to the Royal Institute of
Philosophy, London, for use of it here. The content of Chapter 7 is a revised
version of "Collective Moral Responsibility," in A. Jokic, Editor, From History
to Justice (New York: Peter Lang Publishers, 2001), pp. 305-18. The content of
Chapter 8 is essentially a revised form of an article by the same title from the
Journal of Social Philosophy, and gratitude is expressed to Blackwell
Publishers for use of both Chapters 7-8 in this book. Chapter 9 contains
substantial material from "Reparations to Native Americans?" in A. Jokic,
Editor, War Crimes and Collective Wrongdoing (London: Blackwell
Publishers, 2001), pp. 236-69. I am thankful to Blackwell Publishers for use of
that material in this work. The "List of Sources" represents a conscientiously
comprehensive list of sources that I have consulted over the years in my writing
this book. I have made every attempt to give credit where credit is due
concerning the ideas presented herein where ideas have, as far as I can discern,
originated with authors other than myself. I beg the apologies of those
philosophers whose work was not consulted or cited that pertains to the issues
dealt with in this book. I have, however, made more than the typical attempt to
consult as many philosophical sources as possible over the past decade or so
that concern responsibility, punishment, and related topics in philosophy.
I am grateful to Joel Feinberg and Keith Lehrer for incisive comments on an
early version of the contents of Chapter 5. I am grateful to Feinberg, Margaret
Gilbert, Lehrer, James Nickel, and Burleigh Wilkins for helpful comments on
earlier sections or drafts of Chapter 7. A section of this paper was presented at
the Conference on War, Collective Responsibility, and Inter-Ethnic
Reconciliation, University of Belgrade, Belgrade, Yugoslavia, 27 June 1998.
Another section was presented to The Serbian Philosophical Society, 1 July
1998. I am grateful to the participants of each session for their valuable
comments, especially those from Jovan Babic, David Cooper, David Crocker,
Alexandar Jokic, Natalija Micunovic, Michael Slote, and Svetozar Stojanovic.
For helpful comments on versions of Chapter 9, I am grateful to Robert Audi,
IX
x
Bernard Boxill, Anthony Ellis, Gilbert, Richard W. Miller, Jan Narveson,
Nickel, Rodney C. Roberts, Slote, and Wilkins for incisive comments on earlier
drafts of this chapter. Parts of this chapter in earlier draft forms were presented
at the Canadian Society for the Study of Practical Ethics, Canadian Learneds
Society, 1997, and at the Conference on War Crimes: Legal and Moral Issues,
University of California, Santa Barbara, 1997.
I am grateful to Michael Davis who provided critical insights on the First
Edition of this book, and to Ishtiyaque Haji, who did the same by way of his
critical assessment of it in Mind, III (2002), pp. 847-52. I am also grateful to
The Royal Institute of Philosophy in London for the adaptation of part of my
"Making More Sense of Retributivism," Philosophy, 78 (2003), pp. 277-85, on
the nature of desert to the discussion of desert in Chapter 5 of this edition.
To those who might find the contents of this book, in whole or in part,
worthy of their philosophical reflection and critical scrutiny, I express my
sincere gratitude, in advance, to you.
CHAPTER!
INTRODUCTION
Few social problems today seem to cause as much dissension among people as
the problem of punishment. As various crime rates soar in countries around the
world such as the United States, some of the republics of the former Soviet
Union, Brasil, Colombia, Mexico, and the United Kingdom, just to name a few
countries, reports of increasingly violent crimes have become commonplace.
What should be done in order to solve the problems associated with crime? A
comprehensive answer to this question is not offered in this book. For such an
answer would not only involve providing answers to an array of sociological
and psychological questions about human behavior and motivation, and how to
counter-balance the myriad of motives concerning why criminals commit
wrongful deeds, but it would entail a plausible theory of how we ought to act,
and why, so that crimes can be effectively minimized. These and other queries
concerning the solution to the problem of crime are beyond the scope of this
book. This book is primarily concerned with some of the problems of
responsibility and punishment, and it makes no pretensions as to how the
problems of crime ought to be solved.l Since crime is a fact of life in every
society, this project takes on the task of analyzing philosophically the natures
and justifications of responsibility and punishment. For if the problem of crime
itself cannot be solved, the least we owe ourselves is a proper understanding of
how best to respond to some crimes, and plausible reasons why punishment is
either justified or obligatory to the extent that it is inflicted on responsible
agents.
The cluster of philosophical issues that constitute the problem of
punishment have posed challenges to philosophers and legal scholars for
generations, and include such matters as John Rawls' invaluable distinction,2
echoed by Stanley Benn3 and H. L. A. Hart,4 respectively, between the
1 Of course, there is a sense in which punishment may to some extent and in some cases deter
crime, thereby serving as a partial solution to the crime problem. However, I construe
punishment as more of the state's response to crime, rather than as a preventative solution to
it.
2 John Rawls, "Two Concepts of Rules," originally published in The Philosophical Review, 64
(1955), pp. 3-13. Pagination for purposes of this book is found in John Rawls, Collected
Papers, Samuel Freeman, Editor (Cambridge: Harvard University Press, 1999), pp. 20-46.
3 Stanley Benn, "An Approach to the Problems of Punishment," Philosophy, 33 (1958), pp. 325-
41.
4 H. L. A. Hart, Punishment and Responsibility (Oxford: Oxford University Press, 1968), Chapter
1.
2 CHAPTER 1
justification of the institution of punishment and the justification of particular
forms of punishment. Under this twofold distinction of questions concerning
punishment fall a number of other important queries, such as "What is the
nature of punishment?" "What is the function of punishment?" "What is the
legal justification of punishment?" "What is the moral justification of
punishment?" "How ought punishments to be meted out?" These questions,
taken cumulatively, constitute questions that some have argued are required for
a theory of punishment.5 Providing answers to these and related questions of the
problem of punishment not only reveals a conundrum of philosophical theories
that compete with one another to answer plausibly the problem of punishment,
but they also show how dependent at least some of the these punishment-related
issues are for their answers on the concept of responsibility.
Although much has been gained in the history of philosophical discussions
of responsibility and punishment, there remain, I believe, some basic
confusions. In recent years, for instance, many philosophers have launched
attacks against retributivism. Such critical discussions include the objections
that retributivism is uniquely problematic in that it relies essentially on the
dubious notion of desert, and that retributivism faces the unique difficulty of
devising an adequate theory of proportional punishment. To be sure, others
have even argued or implied that retributivism is implausible because it fails to
account for the ideas of forgiveness and mercy, while still others seem to
condemn retributivism because it entails, they think, some notion or other
concerning vengeance. These are among the most important objections to
retributivism, and each requires careful consideration in order to establish the
status of retributivism's overall plausibility as a theory of punishment.
In the interest of philosophical charity and fairness, I seek to defend a
version of retributivism that might rightly be termed "Kantian" in that it draws
significantly, though not entirely, from some of Immanuel Kant's words on
punishment. I argue that some of the previously mentioned objections to
retributivism misattribute to retributivism some feature or other that
retributivists either do or need not hold. This is surely the case, for example,
regarding the assumption that retributivism entails vengeance, that is, if Robert
Nozick's incisive distinction between retribution and vengeance is plausible.6
It is also disingenuous to think that retributivist theories of punishment
cannot accommodate the concepts of forgiveness and mercy. It is certainly
conceptually possible to hold, for instance, that the state has a right and
imperfect duty of justice to punish criminals, while at the same time hold that
5 Jeffrie G. Murphy, "Does Kant Have a Theory of Punishment?" Columbia Law Review, 87
(1987), pp. 510-11.
6 Robert Nozick, Philosophical Explanations (Cambridge: Harvard University Press, 1981), pp.
366-68.