Moore’s Moral Facts and the Gap in the Retributive Theory
- Brian Rosebury
- … show all 1 hide
Rent the article at a discountRent now
* Final gross prices may vary according to local VAT.Get Access
The purely retributive moral justification of punishment has a gap at its centre. It fails to explain why the offender should not be protected from punishment by the intuitively powerful moral idea that afflicting another person (other than to avoid a greater harm) is always wrong. Attempts to close the gap have taken several different forms, and only one is discussed in this paper. This is the attempt to push aside the ‘protecting’ intuition, using some more powerful intuition specially invoked by the situations to which criminal justice is addressed. In one aspect of his complex defence of pure retributivism, Michael S. Moore attempts to show that the emotions of well-adjusted persons provide evidence of moral facts which justify the affliction of culpable wrongdoers in retribution for their wrongdoing. In particular, he appeals to the evidential significance of emotions aroused by especially heinous crimes, including the punishment-seeking guilt of the offender who truly confronts the reality of his immoral act. The paper argues that Moore fails to vindicate this appeal to moral realism, and thus to show that intrinsic personal moral desert (as distinct from ‘desert’ in a more restricted sense, relative to morally justified institutions) is a necessary and sufficient basis for punishment. Other theories of the role of emotions in morality are as defensible as Moore’s, while the compelling emotions to which he appeals to clinch his argument can be convincingly situated within a non-retributivist framework, especially when the distinction between the intuitions of the lawless world, and those of the world of law, is recognised.
- Butler, J Upon resentment. In: Matthews, WR eds. (1967) Fifteen sermons. G. Bell & Sons, London, pp. 120-132
- Duff, RA (1996) Penal communications: Recent work in the philosophy of punishment. Crime and Justice 20: pp. 1-97 CrossRef
- Hart, H. L. A. (1968). Punishment and responsibility (pp. 1–27). Oxford: Oxford University Press.
- Hume, D Concerning moral sentiment. In: Beauchamp, TL eds. (1998) An enquiry concerning the principles of morals. Oxford University Press, Oxford
- Hutcheson, F. (2002). An essay on the nature and conduct of the passions and affections, with illustrations on the moral sense (A. Garrett (Ed.)). Indianapolis: Liberty Fund, Inc.
- Kahan, DM, Nussbaum, MC (1996) Two conceptions of emotion in criminal law. Columbia Law Review 96: pp. 270-374 CrossRef
- Kant, I. (1997). Lectures on ethics (P. Heath, & J. B. Schneewind (Eds.), P. Heath, Trans.). Cambridge: Cambridge University Press.
- Kleinig, J (1973) Punishment and desert. Martinus Nijhoff, The Hague
- Locke, J. (1988). Second treatise of government (P. Laslett (Ed.)). Cambridge: Cambridge University Press.
- Matravers, M (2000) Justice and punishment: The rationale of coercion. Oxford University Press, New York
- Moore, M. S. (1982). Moral reality. Wisconsin Law Review, 1061.
- Moore, MS (1997) Placing blame. Clarendon Press, Oxford
- Murphy, J, Hampton, J (1988) Forgiveness and mercy. Cambridge University Press, Cambridge CrossRef
- Rawls, J Two concepts of rules. In: Freeman, S eds. (2001) Collected papers. Harvard University Press, Cambridge, Mass, pp. 20-47
- Schopenhauer, A. (1960). Essay on the freedom of the will ( K. Kolenda, Trans.). Indianapolis: Bobbs-Merrill.
- Schopenhauer, A. (1995). On the basis of morality (E. F. J. Payne Trans.). Oxford: Berghahn Books.
- Searle, JR (1983) Intentionality. Cambridge University Press, Cambridge
- Shaftesbury (Antony Ashley Cooper, Earl of) (2001). An inquiry concerning virtue and merit. Characteristicks of men, manners, opinions, times (D. Den Uyl (Ed.)). vol. 2 (pp. 3–44). Indianapolis: Liberty Fund, Inc.
- Smith, A. (1982). The theory of moral sentiments (D. D. Raphael & A. L. Macfie (Eds.)). Indianapolis: Liberty Fund, Inc.
- Ten, CL (1987) Crime, guilt and punishment. New York, Oxford University Press
- Moore’s Moral Facts and the Gap in the Retributive Theory
Criminal Law and Philosophy
Volume 5, Issue 3 , pp 361-376
- Cover Date
- Print ISSN
- Online ISSN
- Springer Netherlands
- Additional Links
- Justification of punishment
- Retributive theory
- Moral significance of emotions
- Industry Sectors
- Brian Rosebury (1)
- Author Affiliations
- 1. School of Education and Social Science, University of Central Lancashire, Preston, PR1 2HE, UK