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Postscript: In Fairness to Condemnation
Published online by Cambridge University Press: 16 February 2016
Extract
Von Hirsch has presented me with a dilemma. As he says, “Proportionality in the Philosophy of Punishment” is a “substantially revised” version of the paper originally prepared for the Jerusalem conference. Its predecessor, “Allocating Penalties”, was in part a response to my “Criminal Desert, Harm, and Fairness”, the paper I prepared for the conference. “Proportionality” is instead (if only in part) a response to what I said at the conference — the “Postscript” cited in its footnotes.
Here is the dilemma. On the one hand: I could leave “Postscript” more or less as I gave it. That would preserve the historical record, but at some cost. I would have missed a chance to advance discussion of important issues. I would also have caused an anomaly in the order of papers printed here. On the other hand: I could rewrite “Postscript”, making it a response to “Proportionality” rather than to “Allocating Penalties”.
- Type
- Determining Penalties (1): Criteria for Sentencing
- Information
- Copyright
- Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1991
References
1 Andrew von Hirsch, “Proportionality in the Philosophy of Punishment: From “Why Punish?” to “How Much?” in this issue, at p. 549.
2 Andrew von Hirsch, “Allocating Penalties: From ‘Why Punish?' to “How Much?’” (December 1987).
3 The distinction is explained and attributed to the “schoolmen” in Chapter 14 (under “Merit what”) of Hobbes, Thomas' Leviathan (Library of the Liberal Arts, Indianapolis, 1958) 114–115Google Scholar.
4 Davis, Michael, “Criminal Desert, Harm and Fairness” (24 October 1987), in this issue, at p. 524, esp. 538–543Google Scholar.
5 “Allocating”, supra n. 2.
6 “Criminal Desert”, supra n. 6, at 530-531.
7 Morris, Herbert, “Punishment and Persons” (1968) 52 Monist 475–501CrossRefGoogle Scholar and “A Paternalistic Theory of Punishment” (1981) 18 Am. Philosophical Q. 263–271Google Scholar (in which Morris offers only a “partial” justification of punishment). Von Hirsch is, of course, very far from being the only one to have misread Morris in this way. It is therefore worth noting here that Murphy's, Jeffrie “Marxism and Retribution” (1973) 2 Philosophy and Public Affairs 217–243Google Scholar, while mentioning “Punishment and Persons” in one footnote, does not identify Morris as holding the burdens-and-benefits theory of the right to punish. [For more about this, see Davis, Michael, “Recent Work in Punishment Theory” (1990) 4 Public Affairs Q. 217–232Google Scholar.]
8 Von Hirsch uses the word “moral” or “morally” only five times in “Allocating”: “morally ‘neutral’ sanction” and “fundamental moral ground”, “adequate moral recognition”, “one's moral assumptions”, and “moral (as well as factual) assumptions”. Why are his references to morality so infrequent? How much of his argument could he still embrace if he had to put a “moral” or “legal” in front of every use of “blame”, “condemnation”, “culpability”, and such other key terms?
9 “Allocating”, supra n. 2.
10 Ill. Rev. Stat. Chap. 38, sec. 12-2 and sec. 1005-8-3.
11 Ill. Rev. Stat. Chap. 38, sec. 16-1 and sec. 1005-8-1.
12 Ill. Rev. Stat. Chap. 38, sec. 12-3.
13 “Allocating”, supra n. 2.
14 Ibid.
15 “Criminal Desert”, supra n. 4, at 542-3.
16 Davis, Michael, “How to Make the Punishment Fit the Crime” (1983) 93 Ethics 750–752CrossRefGoogle Scholar.
17 My discussion of clemency here has benefited much from reading the manuscript of Moore's, KathleenPardons (New York, Oxford U. P., 1989)Google Scholar.
18 Rossi, Peter H. et al. , “The Seriousness of Crimes: Normative Structure and Individual Differences” (1974) 39 Am. Sociological R. 224–37, esp. 228–29CrossRefGoogle Scholar.
19 “Allocating”, supra n. 2.
20 See, for example, Davis, Michael, “Harm and Retribution” (1986) 15 Philosophy and Public Affairs 265–266Google Scholar.
21 Duff, R. A., Trials and Punishments (Cambridge U. P., 1985) 295–299Google Scholar.