Abstract
‘Optimistic’ normative theories of criminal justice aim to justify criminal sanction in terms of its reprobative/rehabilitative value rather than its punitive nature as such. But do such theories accord with ordinary intuitions about what constitutes a ‘just’ response to wrongdoing? Recent empirical work on the psychology of punishers suggests that human beings have a ‘brutely retributive’ moral psychology, making them unlikely to endorse normative theories that sacrifice retribution for the sake of reprobation or rehabilitation; it would mean, for example, that we cannot expect people to support such optimistic theories democratically, calling their feasibility into question. Taking the civic republican theory as an exemplar of optimistic theories, we argue that it does not fail this feasibility test. We review recent empirical research, including studies of our own, to support the claim that, far from being brute retributivists, human beings are generally satisfied only with punishment that delivers something other than mere retribution. And we show that this coheres very closely with the goals and policies that civic republicanism would support, as it may be expected to cohere also with other optimistic proposals.
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Notes
The range of optimistic theories we have in mind includes: Bennett (2002, 2008), Braithwaite and Parker (1999), Braithwaite and Pettit (1990), Duff (2001, 2003), Garvey (2003b), Hampton (1984), Hart (2008), Lacey (1988), Morris (1981), and von Hirsch (1986, 2003). As noted, a number of theorists on this list would classify themselves as ‘retributivists’ (Bennett, Duff, Von Hirsch), though many would also disavow this label or at least seriously qualify it (Braithwaite and Pettit, Hampton, Hart, Lacey, Morris). For the record, we note that classic retributivists are committed to two main theses: (1) that wrongdoers deserve to suffer punishment in proportion to the seriousness of their crime and their degree of culpability (their ‘just deserts’); and (2) that it is intrinsically morally good for wrongdoers to be so punished; it is good irrespective of any other goods that punishment might entail (e.g., criminal deterrence, offender reform, victim satisfaction, vindication of the law, etc.) (see, for instance: Kant 1788/1997, 1797/1996; Moore 2010). Because classic retributivists are committed to the intrinsic value of proportional punishment regardless of its putative reprobative/rehabilitative effects, they do not count as ‘optimists’ in our sense and will not be worried by the empirical challenge we discuss in this paper. By contrast, reform-oriented retributivists should be worried, depending on how far they go in denying the intrinsic value of punishment as such. We return to these nuances in the retributive position in Sect. 1 below.
Also known as ‘neo-republican’—or simply ‘republican’—political theory, this socially progressive contemporary doctrine has been developed and defended in contrast with other prominent theoretical traditions, such as mainstream liberalism and communitarianism. Civic republicans take the protection of political liberty understood as independence from arbitrary power (a.k.a. ‘non-domination’ or ‘dominion’) to be the fundamental value of civic life, using this principle to guide their thinking about the institutional organization of liberal democratic states, as well as the policies and practices such states should pursue. Representative civic republican works include: Besson and Martí (2009), Honohan (2002), Honohan and Jennings (2006), Laborde and Maynor (2007), Lovett (2010), Maynor (2003), Pettit (1997b, 2012, 2014), Skinner (1998, 2008), van Gelderen and Skinner (2002), and Viroli (2002). For a recent review of work in this tradition, see Lovett and Pettit (2009), and for a nice summary presentation of its central tenets, see Lovett (2014). In this paper, we generally use the shortened term ‘republicanism’ to refer to this school of thought.
Dagger (2007) is an avowed exception, aiming to reconcile republican political theory with a ‘retributive’ approach to criminal justice. However, the kind of reprobative retributivism he defends is explicitly optimistic in its reformist/rehabilitative aspirations. To that extent (as discussed in footnote 1), his view is likewise open to the empirical challenge we raise in this paper. (See also footnote 13 for a comment on whether the ‘retributivism’ Dagger endorses is appropriately classified as such.)
As mentioned in footnote 1 above, the commitment to proportional punishment (‘just deserts’) is central to retributive theory. However, as even advocates of the theory concede, the intuitive idea of proportional punishment is hard to cash out in practical terms as there is no obvious way to anchor the punishment scale, let alone determine the appropriate form of ‘just’ punishment. We return to this problem briefly in Sect. 5, but here merely note that the rhetoric of ‘just deserts’ is often used to support practices and policies that most normative advocates of proportional punishment would find abhorrent (Tonry 2011).
For republicans, the conception of freedom as non-domination is importantly contrasted with the more minimal liberal conception of freedom as non-interference. Freedom as non-domination goes further insofar as it requires, not just the absence of actual interference, but the ‘robust’ absence of interference: its absence, regardless of what the agent wishes to do, and regardless of what others wish the agent to do. Intuitively, the agent is not subject to the arbitrary will (or power) of another (Pettit 1997b, 2014; Skinner 1998).
Often this point is made in terms of the ‘intrinsic goodness’ of the guilty suffering for their crimes (Moore 1987; see too, Murphy 2011 for a particularly nuanced discussion of this intuition). The term ‘brute retributivist’ is borrowed from Nichols (2013), although we do not use it in quite his sense. Strictly speaking, Nichols uses the term ‘brute retributivism’ to label the following philosophical view: (1) that people endorse a ‘bare’ retributive norm—that wrongdoers should be punished because (and only because) of their past wrongdoing; and (2) that this norm requires no further justification, not even in terms of ‘desert’ (see, too Gaus 2011, on his distinction between ‘shallow’ and ‘deep’ retributivism).
This is not to say that such justificatory retributivists don’t also encounter the first problem. For instance, a more sophisticated retributivist might argue that punishment is justified in terms of its reprobative value, but then insist that (punitively enacted) reprobation is intrinsically valuable on intuitive grounds (this variation of retributivism is discussed further below).
NJD, p. 163. In their view, imprisonment should only be considered “where the offender has committed a very serious crime and where the community has a justifiable concern to be protected from future acts of violence by the offender” (NJD, p. 104).
For the record, what ‘mercy’ means for Braithwaite and Pettit is “refraining, for good reasons, from imposing legally legitimate punishment” (NJD, p. 168). As a further terminological clarification, ‘negative retributivists’ endorse the general principle that only the guilty should be punished, whereas ‘positive retributivists’ endorse a much more demanding principle, that all the guilty should be punished, and thus would not condone ‘mercy’ in this sense.
Duff and Garland (1994) echo this sentiment: “Philosophies of punishment must … be assessed not merely as they appear on the page, but as they are (or could practicably be) realized in specific practices. Pragmatic penology must be subjected to close moral and political scrutiny as well as to rigorous empirical testing” (p. 1).
For discussion of this phenomenon, see for instance Haidt and Hersh (2001) on ‘moral dumbfounding’.
Duff constitutes a possible exception here. Indeed, his view seems to stray so far from classic retributivist views that one wonders if it is still deserving of the label (see, too, Dagger (2007) who explicitly argues that Duff’s communicative retributivism is quite compatible with republican political theory). The underlying thought seems to be that any backward-looking focus in the justification of punishment, even a justification that is strongly oriented towards future-looking ends, is sufficient to make the resultant view ‘retributivist’ (Metz 2007). But this is highly debatable. For further discussion, see Pettit (1997a). In any case, the relevant point here (as emphasized in footnote 1) is simply this: the more convergence there is between retributive and republican views on such issues, the more the resultant retributivist view is open to the kind of empirical challenge we raise here (i.e., it too makes normative recommendations that fall far out of step with what is purported to be our brutely retributive Realpsychologie).
One possibility is that there is simply an empirical disagreement between them as to what constitutes the most effective means of reprobation/reintegration. Braithwaite and Pettit optimistically assume as much when they suggest that appropriate empirical investigation will eventually undermine the retributivist attachment to penal ‘just deserts’ (NJD, pp. 161–165). As they say: “The reprobative retributivist has a research agenda on his hands if he hopes to show that imposing formal punishments commensurate to the wrongdoing of offenders is the way to advance reprobation or to issue reprobation commensurate to the wrongdoing. … [O]ur prediction on this empirical question is that the correlation between length of prison term and reprobation, however defined, will be low. Most variance in reprobation will be explained by such variables as whether or not there is an arrest, a conviction, media coverage of the crime, and whether the trial convinces friends and relatives of the offender that he is blameworthy. If length of prison term explains very little variance in reprobation, then attempting to guarantee proportionate reprobation by calibrating months in prison is crudely misplaced quantification”—NJD, pp. 163–164.
This finding of anticipated satisfaction via self-report is also in line with a neuroimaging study that found prospective punishment of defectors to be correlated with activation in the dorsal striatum, part of a neural network that plays a critical role in predicting future rewards as a result of goal-directed behaviour and decision-making (De Quervain et al. 2004).
Two recent studies suggest that people will punish offenders even when punishment cannot serve any communicative function (Crockett et al. 2014; Nadelhoffer et al. 2013). While the authors take these studies to suggest that people have a preference for ‘pure retribution,’ a preference that trumps other motivations in inflicting punishment (such as communicating reprobation), we think this interpretation is not supported. At most, they support the weaker claim that people have strong consequence-insensitive retributive impulses that can be elicited under laboratory conditions. We have suggested that measuring satisfaction with punishment is one way to get at this deeper question concerning people’s underlying preferences. Indeed, it is notable that Crockett et al. (2014) equate a purely retributive motive with “the private satisfaction derived from reducing the payoff of a norm violator” (p. 3). But do punishers really derive satisfaction from the simple delivery of punishment? The studies we cite here strongly suggest not.
Indeed, we note these two conditions did not differ even from a condition with no punishment at all.
Note: we take the ‘reactive’ anger that is characteristic of blame sometimes to involve resentment, sometimes indignation, and sometimes both. This will depend, as Strawson says, on how personally invested the blamer is in the offense. For discussion, see Strawson (1974) on the distinction between personal and vicarious reactive attitudes.
Cushman (2015) does explicitly discuss this issue, but denies that people have any forward-looking concerns in inflicting punishment because they are insensitive to such ‘prospective features’ of the situation as: “Will punishment teach [the offenders] … a lesson? Will it teach others a lesson? Are they likely to reoffend?” (p. 7). But we think his conclusion is too hasty on both conceptual and empirical grounds. As a first conceptual point, Cushman himself acknowledges that before sanctioning a punitive response, people want to know whether the offensive act was ‘controllable’. Cushman calls this a ‘backward-looking’ feature of the situation. But on what basis? While controllability implies that the (past) offensive act was in the agent’s power to do, it implies more strongly that acts of that type are in the agent’s power to do; hence, the agent may well repeat such acts unless persuaded otherwise. Thus, controllability is implicitly related to a forward-looking concern with regulability (or ‘teachability’): the act was not random or otherwise uncontrollable, so the agent can be persuaded to do otherwise on future occasions. As a second empirical point, we think that, because people (1) anticipate (justice-related) satisfaction from punishment only when they know offenders realize they are being punished for their offenses (Funk et al. 2014, Study 1), and (2) derive genuine satisfaction from punishment only when it has a transformative effect on offenders’ transgressive attitudes (Funk et al. 2014, Studies 2a and 2b; Funk 2015), this provides good evidence of their forward-looking concerns in inflicting such punishment.
Presumably this also explains why many people find standard consequentialist views of punishment so unappealing. Crude behavioural regulation does not seem to us to get to the proper target of our blaming anger; indeed, as the retributivist would say, such a target fails to respect the personhood or dignity of the offender.
Some may find it surprising that we should care so much about the persistence of transgressive attitudes even if the face of behavioural change. But there is clearly some underlying sense to this. A simple transformation in offenders’ behaviour, perhaps grudgingly produced, is often not satisfying simply because we anticipate a reversion to bad behaviour when no one is looking. By contrast, a show of genuine remorse on the offenders’ part is often deeply satisfying, even if they have some trouble regulating their behaviour (though, of course, we may take continuing transgressive behaviour as a sign that there has been no deep attitudinal transformation—hence, the purported remorse as disingenuous). Still, genuine remorse is often sufficient to mollify our blaming anger (especially when it is accompanied by sincere efforts at behavioural change); it may even be enough to elicit forgiveness in the absence of full, or even partial, material reparation for the harm that was done.
This is supported by the finding in Funk et al. (2014) that the only condition in which participants agreed that everybody got what they deserved was the change of offender attitude condition. They did not agree with this statement in the other punishment conditions—i.e., where there was no offender feedback, or where there was offender feedback acknowledging the victim’s intent to punish but without the requisite change in transgressive attitude.
References
Aharoni, E. and A. J. Fridlund (2012). “Punishment Without Reason: Isolating Retribution in Lay Punishment of Criminal Offenders.” Psychology, Public Policy, and Law 18(4): 599–625.
Bennett, C. (2002). “The Varieties of Retributive Experience.” The Philosophical Quarterly 52(207): 145–163.
Bennett, C. (2006). “Taking the Sincerity out of Saying Sorry: Restorative Justice as Ritual.” Journal of Applied Philosophy 23(2): 127–143.
Bennett, C. (2008). The Apology Ritual. Cambridge: Cambridge University Press.
Besson, S. and J. L. Martí (2009). Legal Republicanism: National and International Perspectives. Oxford: Oxford University Press.
Boyd, R. and P. J. Richerson (1992). “Punishment Allows the Evolution of Cooperation (or Anything Else) in Sizable Groups.” Ethology and Sociobiology 13(3): 171–195.
Braithwaite, J. (2002). Restorative Justice and Responsive Regulation. Oxford: Oxford University Press.
Braithwaite, J. and C. Parker (1999). “Restorative Justice is Republican Justice.” In Restorative Juvenile Justice: Repairing the Harm of Youth Crime, edited by G. Bazemore and L. Walgrave, 103–126. Monsey, NY: Criminal Justice Press/Willow Tree Press.
Braithwaite, J. and P. Pettit (1990). Not Just Deserts: A Republican Theory of Criminal Justice. Oxford: Oxford University Press.
Carlsmith, K. M. (2006). “The Roles of Retribution and Utility in Determining Punishment.” Journal of Experimental Social Psychology 42(4): 437–451.
Carlsmith, K. M. (2008). “On Justifying Punishment: The Discrepancy between Words and Actions.” Social Justice Research 21(2): 119–137.
Carlsmith, K. M. and J. M. Darley (2008). “Psychological Aspects of Retributive Justice.” In Advances in Experimental Social Psychology, edited by M. P. Zanna, vol. 40, 193–236. San Diego, CA: Elsevier.
Carlsmith, K. M., T. D. Wilson and D. T. Gilbert (2008). “The Paradoxical Consequences of Revenge.” Journal of Personality and Social Psychology 95(6): 1316–1324.
Carpenter, P. A., M. A. Just, T. Keller, V. Cherkassky, J. K. Roth and N. Minshew (2001). “Dynamic Cortical Systems Subserving Cognition: fMRI Studies with Typical and Atypical Individuals.” In Mechanisms of Cognitive Development, edited by J. L. McClelland and R. S. Siegler, 353–386. Mahwah, NJ: Erlbaum.
Crockett, M. J., Y. Özdemir and E. Fehr (2014). “The Value of Vengeance and the Demand for Deterrence.” Journal of Experimental Psychology: General 143(6): 2279–2286.
Cullen, F. T., B. S. Fisher and B. K. Applegate (2000). “Public Opinion about Punishment and Corrections.” Crime and Justice 27: 1–79.
Cushman, F. (2015). “Punishment in Humans: From Intuitions to Institutions.” Philosophy Compass 10(2): 117–133.
Dagger, R. (2007). “Republican Punishment: Consequentialist or Retributivist.” In Republicanism and Political Theory, edited by C. Laborde and J. Maynor, 219–245. Oxford: Blackwell.
Darley, J. (2002). “Just Punishments: Research on Retributional Justice.” In The Justice Motive in Everyday Life, edited by M. Ross and D. T. Miller, 314–333. Cambridge: Cambridge University Press.
Darley, J. M. (2009). “Morality in the Law: The Psychological Foundations of Citizens’ Desires to Punish Transgressions.” Annual Review of Law and Social Science 5: 1–23.
De Quervain, D. J.-F., U. Fischbacher, V. Treyer, M. Schellhammer, U. Schnyder, A. Buck and E. Fehr. (2004). “The Neural Basis of Altruistic Punishment.” Science 305: 1254–1258.
Denning, L. (1984). Report of the Royal Commission on Capital Punishment, London: HMSO.
Duff, R. A. (2001). Punishment, Communication and Community. Oxford: Oxford University Press.
Duff, R. A. (2003). “Penance, Punishment and the Limits of Community.” Punishment & Society 5(3): 295–312.
Duff, R. A. (2013). “Legal Punishment.” The Stanford Encyclopedia of Philosophy (Summer 2013 Edition), edited by E. N. Zalta. http://plato.stanford.edu/archives/sum2013/entries/legal-punishment/.
Duff, R. A. and D. Garland, Eds. (1994). A Reader on Punishment. Oxford: Oxford University Press.
Fehr, E. and U. Fischbacher (2004a). “Social Norms and Human Cooperation.” Trends in Cognitive Sciences 8(4): 185–190.
Fehr, E. and U. Fischbacher (2004b). “Third-party Punishment and Social Norms.” Evolution and Human Behavior 25(2): 63–87.
Fehr, E., U. Fischbacher and S. Gachter (2002). “Strong Reciprocity, Human Cooperation, and the Enforcement of Social Norms.” Human Nature 13(1): 1–25.
Fehr, E. and S. Gachter (2002). “Altruistic Punishment in Humans.” Nature 415(6868): 137–140.
Feinberg, J. (1965). “The Expressive Function of Punishment.” The Monist: 397–423.
Finnis, J. (2011). Natural Law and Natural Rights. Oxford: Oxford University Press.
Frank, R. H. (1988). Passions Within Reason: The Strategic Role Of Emotions. New York: W.W.Norton & Co.
Funk, F. (2015). Beyond Retribution: The Role of Transformative Justice Motives for People’s Reactions to Wrongdoers: (Order No. 3711559). Available from Dissertations & Theses at Princeton University; ProQuest Dissertations & Theses Full Text; ProQuest Dissertations & Theses Global. http://search.proquest.com/docview/1707355432.
Funk, F., V. McGeer and M. Gollwitzer (2014). “Get the Message: Punishment Is Satisfying If the Transgressor Responds to Its Communicative Intent.” Personality and Social Psychology Bulletin 40(8): 986–997.
Garvey, S. P. (1999). “Punishment as Atonement.” UCLA Law Review 46: 1801–1858.
Garvey, S. P. (2003a). “The Moral Emotions of the Criminal Law.” Cornell Law Faculty Publications 22(Paper 280): 89–108.
Garvey, S. P. (2003b). “Restorative Justice, Punishment, and Atonement.” Utah Law Review: 303–317.
Gaus, G. (2011). “Retributive Justice and Social Cooperation.” In Retributivism: Essays on Theory and Practice, edited by M. D. White, 73–90. Oxford: Oxford University Press.
Gollwitzer, M. and M. Denzler. (2009). “What Makes Revenge Sweet: Seeing the Offender Suffer or Delivering a Message?” Journal of Experimental Social Psychology 45(4): 840–844.
Gollwitzer, M., M. Meder and M. Schmitt. (2011). “What Gives Victims Satisfaction when they Seek Revenge?” European Journal of Social Psychology 41(3): 364–374.
Goodenough, O. R. (2004). “Responsibility and Punishment: Whose Mind? A Response.” Philosophical Transactions of the Royal Society B: Biological Sciences 359(1451): 1805–1809.
Haidt, J. (2001). “The Emotional Dog and its Rational Tail: A Social Intuitionist Approach to Moral Judgement.” Psychological Review 108(4): 814–834.
Haidt, J. (2008). “Morality.” Perspectives on Psychological Science 3(1): 65–72.
Haidt, J. and M. A. Hersh (2001). “Sexual Morality: The Cultures and Emotions of Conservatives and Liberals.” Journal of Applied Social Psychology 31(1): 191–221.
Hampton, J. (1984). “The Moral Education Theory of Punishment.” Philosophy & Public Affairs 13(3): 208–238.
Hampton, J. (1991). “Correcting Harms versus Righting Wrongs: The Goal of Retribution.” UCLA Law Review 39: 1659–1702.
Hart, H. L. A. (2008). Punishment and Responsibility: Essays in the Philosophy of Law. Oxford: Oxford University Press.
Hartnagel, T. F. and L. J. Templeton. (2012). “Emotions about Crime and Attitudes to Punishment.” Punishment & Society 14(4): 452–474.
Hegel, G. W. F. (1820/1991). Elements of the Philosophy of Right, edited by A. W. Wood; translated by H. B. Nisbet. Cambridge: Cambridge University Press.
Henrich, J. and R. Boyd (2001). “Why People Punish Defectors.” Journal of Theoretical Biology 208: 79–89.
Honohan, I. (2002). Civic Republicanism. London: Routledge.
Honohan, I. and J. Jennings, Eds. (2006). Republicanism in Theory and Practice. London: Routledge.
Hough, M., J. Roberts and G. Britain (1998). Attitudes to Punishment: Findings from the British Crime Survey. London: Home Office.
Husak, D. (2000). “Holistic retributivism.” California Law Review 88(3): 991–1000.
Kant, I. (1788/1997). Critique of Practical Reason, translated by M. Gregor. Cambridge: Cambridge University Press.
Kant, I. (1797/1996). The Metaphysics of Morals, translated by M. Gregor. Cambridge: Cambridge University Press.
Keller, L. B., M. E. Oswald, I. Stucki and M. Gollwitzer. (2010). “A Closer Look at an Eye for an Eye: Laypersons’ Punishment Decisions are Primarily Driven by Retributive Motives.” Social Justice Research 23(2–3): 99–116.
Kennett, J. and C. Fine (2009). “Will the Real Moral Judgment Please Stand Up?” Ethical Theory and Moral Practice 12(1): 77–96.
Kugler, M. B., F. Funk, J. Braun, M. Gollwitzer, A. C. Kay and J. M. Darley. (2013). “Differences in Punitiveness across Three Cultures: A Test of American Exceptionalism in Justice Attitudes.” Journal of Criminal Law & Criminology 103: 1071–1201.
Laborde, C. and J. Maynor, Eds. (2007). Republicanism and Political Theory. Oxford: Blackwell.
Lacey, N. (1988). State Punishment. London: Routledge.
Lacey, N. (2008). The Prisoners’ Dilemma: Political Economy and Punishment in Contemporary Democracies. Cambridge: Cambridge University Press.
Lacey, N. (2016). “The Metaphor of Proportionality.” Journal of Law and Society. (forthcoming).
Lacey, N. and H. Pickard (2015). “The Chimera of Proportionality: Institutionalising Limits on Punishment in Contemporary Social and Political Systems.” The Modern Law Review 78(2): 216–240.
Lovett, F. (2010). Justice as Non-domination. Oxford: Oxford University Press.
Lovett, F. (2014). “Republicanism.” The Stanford Encyclopedia of Philosophy (Winter 2014 Edition), edited by E. N. Zalta. http://plato.stanford.edu/archives/win2014/entries/republicanism/.
Lovett, F. and P. Pettit (2009). “Neo-Republicanism: A Normative and Institutional Research Program.” Annual Review of Political Science 12: 18–29.
Malle, B. F., S. Guglielmo and A. E. Monroe (2014). “A Theory of Blame.” Psychological Inquiry 25(2): 147–186.
Maynor, J. (2003). Republicanism in the Modern World. Cambridge: Polity Press.
McCullough, M. E., R. Kurzban and B. A. Tabak (2013). “Cognitive Systems for Revenge and Forgiveness.” Behavioral and Brain Sciences 36(1): 1–15.
McFatter, R. M. (1978). “Sentencing Strategies and Justice: Effects of Punishment Philosophy on Sentencing Decisions.” Journal of Personality and Social Psychology 36(12): 1490–1500.
McFatter, R. M. (1982). “Purposes of Punishment: Effects of Utilities of Criminal Sanctions on Perceived Appropriateness.” Journal of Applied Psychology 67(3): 255–267.
McGeer, V. (2013). “Civilizing Blame.” In Blame: Its Nature and Norms, edited by J. D. Coates and N. A. Tognazzini, 162–188. Oxford: Oxford University Press.
Metz, T. (2007). “How to Reconcile Liberal Politics with Retributive Punishment.” Oxford Journal of Legal Studies 27(4): 683–705.
Moore, M. S. (1987). “The Moral Worth of Retribution.” In Responsibility, Character, and the Emotions: New Essays in Moral Psychology, edited by F. Schoeman, 179–219. Cambridge: Cambridge University Press.
Moore, M. S. (2010). Placing Blame: A General Theory of the Criminal Law. Oxford: Oxford University Press.
Morris, H. (1981). “A Paternalistic Theory of Punishment.” American Philosophical Quarterly 18(4): 263–271.
Murphy, J. G. (1973). “Marxism and Retribution.” Philosophy & Public Affairs 2(3): 217–243.
Murphy, J. G. (1985). “Retributivism, Moral Education, and the Liberal State.” Criminal Justice Ethics 4(1): 3–11.
Murphy, J. G. (1988). “Hatred: A Qualified Defense.” In Forgiveness and Mercy, edited by J. G. Murphy and J. Hampton, 88–110. Cambridge: Cambridge University Press.
Murphy, J. G. (2003). Getting Even: Forgiveness and its Limits. Oxford: Oxford University Press.
Murphy, J. G. (2011). “Some Second Thoughts on Retributivism.” In Retributivism: Essays on Theory and Policy, edited by M. D. White, 93–106. Oxford: Oxford University Press.
Nadelhoffer, T., S. Heshmati, D. Kaplan and S. Nichols. (2013). “Folk Retributivism and the Communication Confound.” Economics and Philosophy 29: 235–261.
Nichols, S. (2002). “Norms with Feeling: Towards a Psychological Account of Moral Judgement.” Cognition 84: 221–236.
Nichols, S. (2004). Sentimental Rules: On the Natural Foundations of Moral Judgment. Oxford: Oxford University Press.
Nichols, S. (2013). “Brute Retributivism.” In The Future of Punishment, edited by T. Nadelhoffer, 25–46. Oxford: Oxford University Press.
Nozick, R. (1974). Anarchy, State, and Utopia. Oxford: Blackwell.
Orth, U. (2003). “Punishment Goals of Crime Victims.” Law and Human Behavior 27(2): 173.
Pedersen, E. J., R. Kurzban and M. E. McCullough. (2013). “Do Humans Really Punish Altruistically? A Closer Look.” Proceedings of the Royal Society of London B: Biological Sciences 280(1758).
Pettit, P. (1997a). “Republican Theory and Criminal Punishment.” Utilitas Vol 9: 59–79.
Pettit, P. (1997b). Republicanism: A Theory of Freedom and Government. Oxford: Oxford University Press.
Pettit, P. (2012). On the People’s Terms: A Republican Theory and Model of Democracy. Cambridge: Cambridge University Press.
Pettit, P. (2014). Just Freedom: A Moral Compass for a Complex World. New York: W.W.Norton & Co.
Pettit, P. and J. Braithwaite (1993). “Not Just Deserts, Even in Sentencing.” Current Issues in Criminal Justice 4: 225–239.
Pettit, P. and J. Braithwaite (1994). “The Three Rs of Republican Sentencing.” Current Issues in Criminal Justice 5: 318–325.
Sadurski, W. (1985). Giving Desert its Due: Social Justice and Legal Theory. Dordrecht: Kluwer/D. Reidel Publishing Co.
Sadurski, W. (1988). “Theory of Punishment, Social Justice, and Liberal Neutrality.” Law and Philosophy 7(3): 351–373.
Shweder, R. A. and J. Haidt (1993). “The Future of Moral Psychology: Truth, Intuition and the Pluralist Way.” Psychological Science 4: 360–365.
Skinner, Q. (1998). Liberty before Liberalism. Cambridge: Cambridge University Press.
Skinner, Q. (2008). “Freedom as the Absence of Arbitrary Power.” In Republicanism and Political Theory, edited by J. Maynor and C. Laborde, 83–101. Oxford: Blackwell.
Smith, A. (1759/1982). The Theory of the Moral Sentiments. Indianapolis: Liberty Classics.
Sommers, T. (2009). “The Two Faces of Revenge: Moral Responsibility and the Culture of Honor.” Biology and Philosophy 24(1): 35–50.
Sommers, T. (2012). Relative Justice: Cultural Diversity, Free Will, and Moral Responsibility. Princeton: Princeton University Press.
Stephen, S. J. F. (1890). A General View of the Criminal Law of England. London: Macmillan & Co.
Strawson, P. F. (1974). “Freedom and Resentment.” In Freedom and Resentment and Other Essays, 1–25. London: Methuen.
Tinbergen, N. (1952). “‘Derived’ Activities; Their Causation, Biological Significance, Origin, and Emancipation During Evolution.” Quarterly Review of Biology 27(1): 1–32.
Tonry, M. (2011). Retributivism has a Past: Has it a Future? New York: Oxford University Press.
van Gelderen, M. and Q. Skinner (2002). Republicanism: A Shared European Heritage. Cambridge: Cambridge University Press.
Viroli, M. (2002). Republicanism. New York: Hill and Wang.
von Hirsch, A. (1986). Past or Future Crimes: Deservedness and Dangerousness in the Sentencing of Criminals. New Brunswick, NJ: Rutgers University Press.
von Hirsch, A. (1993). Censure and Sanctions. Oxford: Oxford University Press.
von Hirsch, A. (2003). “Punishment, Penance and the State.” In Debates in Contemporary Political Philosophy: An Anthology, edited by D. Matravers and J. Pike, 408–422. London and New York: Routledge.
Wheatley, T. and J. Haidt (2005). “Hypnotic Disgust Makes Moral Judgments More Severe.” Psychological Science 16(10): 780–784.
Acknowledgments
An earlier version of this paper was presented at a workshop on Republican theories of Criminal Law at Cordoza Law School in September 2014. The authors are grateful for helpful feedback from our commentator, Adam Kolber and from other workshop participants. We also thank John Braithwaite, Nicola Lacey, and Philip Pettit for more extensive comments on earlier drafts; and we are grateful to John Darley for initiating our interdisciplinary collaboration on punishment and for helpful feedback in its early stages. Victoria McGeer’s work was supported by the Australian Research Council (Grant Number DP140102468). Friederike Funk’s work was supported by a Laurance S. Rockefeller Graduate Prize Fellowship (University Center for Human Values, Princeton University) and a Fellowship of Woodrow Wilson Scholars (Princeton University).
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McGeer, V., Funk, F. Are ‘Optimistic’ Theories of Criminal Justice Psychologically Feasible? The Probative Case of Civic Republicanism. Criminal Law, Philosophy 11, 523–544 (2017). https://doi.org/10.1007/s11572-015-9381-2
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DOI: https://doi.org/10.1007/s11572-015-9381-2