A high point in the modern debate over the enforcement of morality was reached in the UK in the late 1950s and early 1960s. Consisting of a spirited exchange of essays and lectures between Patrick Devlin, a distinguished sitting judge, and H. L. A. Hart, a professor of jurisprudence at Oxford University, the debate was sparked by the publication of a controversial report commissioned by the British government that recommended that the criminal law in the UK be liberalized regarding prostitution and “homosexual offences.” The Hart/Devlin debate centered on sexual morality, but the issues it raised pertain to a much wider range of concerns. This chapter pays particular attention to the distinctions and arguments the debate introduced concerning legal moralism and legal paternalism. Devlin defended a version of legal moralism. Hart rejected legal moralism, but granted the permissibility of legal paternalism. The chapter distinguishes critical legal moralism from the social legal moralism that Devlin proposed. It argues that a plausible form of legal moralism must be informed by critical morality, not social morality. It also defends the plausibility of moral paternalism and legal moralism.

What is the proper aim of socially punitive responses to wrongdoing? The usual contenders in the debates about the justification of criminal punishment – retributivist, utilitarian, expressivist, and communicative theories – all encounter problems as accounts of social punishment. This chapter argues that the general justifying aim of social punishment is to pressure wrongdoers to make amends for their own transgressions. The view combines both desert and instrumental conditions for punishment but develops distinctive accounts of each.

This essay critically discusses Chapter 2 of Linda Radzik’s 2018 Descartes Lectures. Radzik’s topic in those lectures is social punishment – that is, the familiar practices of criticizing, reprimanding, and withdrawing by which we informally respond to those whom we take to have violated moral norms. Radzik’s aim in her second chapter is to justify social punishment by adapting and extending a prominent approach to legal punishment that combines retributive and consequentialist elements. However, unlike most retributivists, Radzik holds that what the relevant wrongdoers deserve is not any form of suffering but only the coercive violation of certain rights, while, unlike most consequentialists, she holds that the benefit that is crucial to punishment is not deterrence but the moral improvement of the wrongdoer. The current essay discusses some of the problems that are raised by these interesting new proposals.

If we are unlikely to possess the kind of free will that legitimates desert-based punishment, the rationally defensible route is to adopt a cautionary perspective that draws on non-desert-based criminal justice procedures that are fair and just to all parties. This chapter analyzes the options: (1) we can acknowledge that we have no justification for desert-based moral responsibility but disregard this at both trial and sentencing phases; (2) we can acknowledge this and disregard it at trial but not sentencing phase; (3) we can acknowledge this and take it into account during both the trial and sentencing phase. The author therefore presents some potential models to effectively address criminal behavior and critically assesses the most striking difficulties each of these models faces. The chapter concludes that innovative criminal justice systems must continue to identify causal responsibility, promote taking responsibility for future behavior, and thoroughly respond to victims’ rights and needs. The attribution of moral guilt and the implementation of desert-based punishment face numerous objections. Debate is needed on the desirability of a criminal justice model focusing on causal responsibility and taking responsibility; a model that aims at victim recovery, restitution, and restoration by implementing forward-looking justice mechanisms.

This chapter considers the practical implications of free will skepticism and discusses recent empirical work that has just begun to investigate the matter. It argues that there are good philosophical and empirical reasons for thinking that belief in free will, rather than providing the pragmatic benefits many claim, actually has a dark side; i.e., it is too often used to justify punitive excess in criminal justice, to encourage treating people in severe and demeaning ways, and to excuse and perpetuate social and economic inequalities. After addressing recent empirical findings in social psychology that purport to show that diminishing one’s belief in free will increases antisocial behavior – findings that are overblown and questionable – the chapter discusses contrary findings in moral and political psychology that reveal interesting and troubling correlations between people’s free will beliefs and their other moral, religious, and political beliefs. It concludes that we would be better off without the notions of free will and just deserts.

“Free will skepticism” refers to a family of views that all take seriously the possibility that human beings lack the control in action – i.e. the free will – required for an agent to be truly deserving of blame and praise, punishment and reward. Critics fear that adopting this view would have harmful consequences for our interpersonal relationships, society, morality, meaning, and laws. Optimistic free will skeptics, on the other hand, respond by arguing that life without free will and so-called basic desert moral responsibility would not be harmful in these ways, and might even be beneficial. In this chapter, we attempt to provide a brief sketch of the traditional free will debate, define the various positions, and frame the debate over the practical implications of free will skepticism. We focus especially on the implications of free will skepticism for the criminal law and the retributive justification of punishment.

The two instruments the state uses to maintain order are the corrective and the preventive. Those who reject the notion of moral responsibility either prefer to abandon punishment in favor of preventive techniques or seek to justify (nonretributive) punishment. Although I think punishment is essentially retributive and cannot be justified, I also think we must, if possible, avoid yielding to the preventive worldview. We must distinguish the lengths to which we are willing to go with incompetent or irrational individuals who are dangerous from the lengths to which we are willing to go with rational and competent offenders. My view is that borrowing from punishment its harsh methods we maintain the dignity of competent offenders when we subject them to these methods with the aim of leading them to abandon the defective motivational traits that resulted in the crime. I call this approach correction rather than punishment, because it lacks the retributive element that makes punishment punishment. Here I suggest how this view might be defended if we start, as Fichte does, from the assumption that those who violate any law deserve to be made outlaws; in current terminology, to be subjected to preventive detention and preventive techniques generally.

Recent free will denialism (FWD) tends to be optimistic, claiming that not only will the rejection of the belief in free will and moral responsibility not make matters dreadful but that we are indeed better off without them. I address the denialist claim that FWD has the philosophical resources to effectively safeguard human rights and respect for persons in the context of punishment, even without belief in free will, moral responsibility, and desert. I raise seven reasons for doubt concerning the ability of FWD to maintain deontological constraints. Together they present a strong case for doubting the optimism of FWD.

This chapter discusses the implications of rejecting the notions of free will and retribution for the process of establishing criminal liability in a trial. It is a general principle of UK and American law that before a person can be convicted of a crime the prosecution must prove three things. Firstly, the accused must have performed the actus reus (the prohibited act). Secondly (with the exception of strict liability offences), the prosecution must prove mens rea, a mental state such as intention or recklessness. Thirdly, the accused must lack a valid defense, such as self-defense. This chapter argues that these prerequisites should be retained. It offers a rationale for these prerequisites that appeals to the value of liberty and moral communication but does not depend on the concepts of free will and retribution. This chapter then focuses on two defenses: self-defense and provocation. It argues that without these two concepts, the “right” to self-defense cannot be understood as a strong justification. Rather, self-defense involves permissible action. This chapter also argues that, without the concepts of free will and retribution, the partial defense of provocation cannot be based on the idea of justified anger but rather on understandable emotional distress.

The two instruments the state uses to maintain order are the corrective and the preventive. Those who reject the notion of moral responsibility either prefer to abandon punishment in favor of preventive techniques or seek to justify (nonretributive) punishment. Although I think punishment is essentially retributive and cannot be justified, I also think we must, if possible, avoid yielding to the preventive worldview. We must distinguish the lengths to which we are willing to go with incompetent or irrational individuals who are dangerous from the lengths to which we are willing to go with rational and competent offenders. My view is that borrowing from punishment its harsh methods we maintain the dignity of competent offenders when we subject them to these methods with the aim of leading them to abandon the defective motivational traits that resulted in the crime. I call this approach correction rather than punishment, because it lacks the retributive element that makes punishment punishment. Here I suggest how this view might be defended if we start, as Fichte does, from the assumption that those who violate any law deserve to be made outlaws; in current terminology, to be subjected to preventive detention and preventive techniques generally.

Natural law theory’s opposition to lying and its conception of the various goods that are the objects of our choices as incommensurable have implications for our thinking about the undertheorized practice of assigning grades to students. This practice is one to which liberals, concerned with fairness and merit, should perhaps pay more attention. In light of concerns related to truth and incommensurability, there is, Chapter 3 suggests, good reason to reject a number of conventional grading techniques and approaches, putatively warranted by what I call “academic consequentialism” and “academic retributivism.”

Radical liberalism and natural law theory ground a vigorous critique of the carceral state and of imprisonment in anything like its current form. But a natural law analysis can also serve as the basis of a negative assessment of current practices that does not depend on embracing this critique. Chapter 6 seeks to show why plausible theories of statist criminal justice, even if taken to justify not only imprisonment but also the use of victim testimony to help determine prisoners’ initial terms of confinement, likely do not warrant the use of this kind of testimony in assessing parole requests.