Abstract
In an article previously published in this journal, Phillip Montague critically surveys and rejects a handful of contemporary attempts to explain why state punishment is morally justified. Among those targeted is one of my defences of the censure theory of punishment, according to which state punishment is justified because the political community has a duty to express disapproval of those guilty of injustice. My defence of censure theory supposes, per argumentum, that there is always some defeasible moral reason for the state to proportionately punish the guilty, and then demonstrates that censure theory best entails and explains this intuition. Montague does not question the intuition, but instead argues that three rival theories of punishment, including his societal-defence view, account for it to no worse a degree than my censure theory. In this article I defend my initial argument, noting resources for its defence that Montague does not appreciate and that, I maintain, provide those who believe that there is always pro tanto injustice in the state failing to proportionately punish the guilty reason to adopt censure theory over all competitors, including Montague’s societal-defence theory.
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Notes
And perhaps those who have done something gravely wrong that patently should have been illegal, even if it was not at the time of the act.
The next few paragraphs borrow from Metz (2000).
See Metz (2000, 502) for this point, to which Montague does not respond. An additional problem with Montague’s theory is that it does not base how much force may be used against someone on the degree of her fault, e.g., it would invariably permit one to kill those who have merely negligently caused the prospect of death, if doing so would be necessary and sufficient to protect innocent life. Applied to state punishment, therefore, his theory would prescribe a disproportionately harsh penalty. This kind of point has been made in Wasserman (1987, 366–367).
See the definitions in Metz (2000, 498, 503, 510).
For helpful written comments on an earlier draft, I thank Stephen Kershnar and an anonymous referee for Philosophia.
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Metz, T. Censure Theory Still Best Accounts for Punishment of the Guilty: Reply to Montague. Philosophia 37, 113–123 (2009). https://doi.org/10.1007/s11406-008-9162-4
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DOI: https://doi.org/10.1007/s11406-008-9162-4