Punishment and Torture

D. Boonin (2008), The Problem of Punishment (New York: Cambridge University Press), 24–5.CrossRefGoogle Scholar

On some accounts, the term ‘torture’ lacks clear semantic borders, although progress can be made if we focus on types and models of torture. See J. J. Wisnewski (2008), ‘It’s About Time: Defusing the Ticking Bomb Argument’, International Journal of Applied Philosophy, 22, 103–16, esp. 110.CrossRefGoogle Scholar

M. Davis (2005), ‘The Moral Justifiability of Torture and Other Cruel, Inhuman, and Degrading Treatment’, International Journal of Applied Philosophy, 19, 167.CrossRefGoogle Scholar

D. Sussman (2005), ‘What’s Wrong with Torture?’, Philosophy & Public Affairs, 33, 1–33.CrossRefGoogle Scholar

The idea here is that a state just is an entity that claims a monopoly of the use of force in a region. It is legitimate if this claim is justified. For this account of a state, see R. Nozick (1974), Anarchy, State, and Utopia (New York: Basic Books), 23.Google Scholar

See I. Kant (1991), The Metaphysics of Morals, Mary Gregor, ed. (New York: Cambridge University Press), 65, 194, 240–2.Google Scholar

See J. Feinberg (1988), Harmless Wrongdoing (New York: Oxford University Press), 19.Google Scholar

For the notion that utilitarians have reasons to act rather than duties, see A. Norcross (2006), ‘Reasons without Demands: Rethinking Rightness’, in J. Dreier (ed.), Blackwell Contemporary Debates in Moral Theory (New York: Blackwell), 38–53.Google Scholar

For the duty of fair play, see H. L. A. Hart (1955), ‘Are There Any Natural Rights?’, Philosophical Review, 64, 185;CrossRefGoogle Scholar

J. Rawls (1964), ‘Legal Obligation and the Duty of Fair Play’, in S. Hood (ed.), Law and Philosophy (New York: New York University Press), 9–10.Google Scholar

For a defence of the notion that there can be a right to do wrong, see J. Waldron (1981), ‘A Right to Do Wrong’, Ethics, 92, 21–39.CrossRefGoogle Scholar

Examples of acts that might be considered wrong but do not wrong anyone include free-floating wrongs, acts done from an improper motive, and acts that prevent an agent from satisfying his imperfect duties. Examples of these can be seen in J. Feinberg (1988), Harmless Wrongdoing (New York: Oxford), 18–25,Google Scholar

G. E. M. Anscombe (1981), ‘Modern Moral Philosophy’ in The Collected Moral Papers of G. E. M. Anscombe: Ethics, Religion, and Politics (Oxford: Basil Blackwell), 26–42; I. Kant, The Metaphysics of Morals, 65, 194, 240–2.Google Scholar

The theory can be seen in R. Cooter and T. Ulen (2004), Law and Economics 4th edn. (Boston: Pearson), chs 11–12.Google Scholar

The empirical evidence can be seen in A. M. Polinsky and S. Shavell (2000), ‘The Economic Theory of Public Enforcement of Law’, Journal of Economic Literature, 38, 45–76;CrossRefGoogle Scholar

I. Ehrlich (1996), ‘Crime, Punishment, and the Market for Offenses’, The Journal of Economic Perspectives, 10, 43–67.CrossRefGoogle Scholar

See R. T. Wright and S. H. Decker (1994), Burglars on the Job (Boston, Northeastern University Press), especially 91ff;Google Scholar

S. Cameron (1988), ‘The Economics of Crime Deterrence: A Survey of Theory and Evidence’, Kyklos, 41, 301–23;CrossRefGoogle Scholar

P. E. Tracy, M. E. Wolfgang, and R. M. Figlio (1990), Delinquency Careers in Two Birth Cohorts (New York, Plenum Press);CrossRefGoogle Scholar

V. K. Mathur (1978), ‘Economics of Crime: An Investigation of the Deterrent Hypothesis for Urban Areas’, Rev Econ and Stat, 60, 459–66. There is concern as to whether amount of punishment and probability of punishment act in an analogous manner.CrossRefGoogle Scholar

See John Henderson and John Palmer (2002), ‘Does More Deterrence Require More Punishment? [or Should the Punishment Fit the Crime?]’, European Journal of Law and Economics, 13, 143–56.CrossRefGoogle Scholar

For the claim that norms affect behaviour more when they are more salient, see Cialdini et al. (1990), ‘A Focus Theory of Normative Conduct: A Theoretical Refinement and Reevaluation of the Role of Norms in Human Behavior’, in Advances in Experimental Social Psychology (New York: Academic Press), 201–34;Google Scholar

L. Berkowitz (1972), ‘Social Norms, Feelings, and Other Factors Affecting Helping and Altruism’, in L. Berkowitz (ed.), Advances in Experimental Psychology (New York: Academic Press), 6.Google Scholar

For the notion that Norm expression is an important part of punishment, see J.-R. Tyran and L. Feld (2006), ‘Achieving Compliance when Legal Sanctions are Non-Deterrent’, Scandinavian Journal of Economics, 108, 135–56;CrossRefGoogle Scholar

R. Cooter (1998), ‘Expressive Law and Economics’, Journal of Legal Studies, 27, 585–608;CrossRefGoogle Scholar

D. Kahan (1998), ‘Social Meaning and the Economic Analysis of Crime’, Journal of Legal Studies, 27, 661–72;CrossRefGoogle Scholar

C. Sunstein (1996), ‘On the Expressive Function of Law’, University of Pennsylvania Law Review, 144, 2021–31.CrossRefGoogle Scholar

For the notion that norms affect behaviour more when people focus on them, see C. Bicchieri (2006), The Grammar of Society: The Nature and Dynamics of Social Norms (Cambridge: Cambridge University Press).Google Scholar

The discussion of overrides can be seen in J. J. Thomson (1990), The Realm of Rights (Cambridge: Harvard University Press), ch. 6;Google Scholar

S. Brennan (1995), ‘Thresholds for Rights’, The Southern Journal of Philosophy, 33, 143–68;CrossRefGoogle Scholar

S. Brennan (1995), ‘How is the Strength of a Right Determined? Assessing the Harm View’, American Philosophical Quarterly, 32, 383–93. They concern the clearer notion that people’s interests are relevant to when a right may be infringed and that the total amount of interests at stake and minimum for the affected parties are also relevant.Google Scholar

In 2005, the latest available numbers, there were 16,692 people who were the victims of homicide. See Statistical Abstract of the United States 2009, Table 301, http://www.census.gov/compendia/statab/. The estimates of the value of a life vary. On one study the value of an average life in the United States is $5 million; on another, it is $7 million. Both use 1990 dollars. For the first, see D. Costa and M. Kahn (2004) ‘Changes in the Value of Life, 1940–1980’, Journal of Risk and Uncertainty, 29, 159–80.CrossRefGoogle Scholar

For the second see C. K. Viscusi (2008) ‘How to Value a Life’, Journal of Economics and Finance, 32, 311–323. Using the low-end estimate, the value of the lives lost is $83 billion. Given that in 1993, there were 24,526 homicides, different policies are able to affect the rate of homicide.CrossRefGoogle Scholar

The idea for this objection comes from J. Murphy (1979), ‘Cruel and Unusual Punishments’, in Retribution, Justice, and Therapy (Boston: Dordrecht), 223–49.CrossRefGoogle Scholar

Some opponents of torture focus on torture being an assault on the defenceless. H. Shue (1978), ‘Torture’, Philosophy and Public Affairs, 7, 124–43. It is hard to see how being defenceless, as opposed to be being bad at defence, is morally relevant unless it entails the presence of protective rights.Google Scholar

An analogous claim can be seen in John Stuart Mill who argues that the principle of freedom does not allow persons to be free not to be free. J. S. Mill (1978), On Liberty, E. Rapaport (ed.) (Indianapolis: Hackett), ch. V, sec. 11, 101–2.Google Scholar

In context of punishment, this idea can be seen in T. Metz (2000), ‘Censure Theory and Intuitions about Punishment’, Law and Philosophy, 19, 491–512;Google Scholar

J. Hampton (1992), ‘An Expressive Theory of Retribution’, in W. Cragg (ed.), Retributivism and Its Critics (Stuttgart: F. Steiner Verlag), 1–25;Google Scholar

I. Primoratz (1989), ‘Punishment as Language’, Philosophy, 64, 187–205.CrossRefGoogle Scholar

In bringing up this theory, I do not mean to endorse it. My view is that as a non-consequen-tialist justification of punishment it is superfluous because it presupposes and trivially follows from the truth of non-expressive retributivism. For an argument in support of this see M. Davis (1991), ‘Punishment as Language: Misleading Analogy for Desert Theorists’, Law and Philosophy, 10, 311–22.CrossRefGoogle Scholar

More broadly, this might be a function of the speaker meaning, that is, what the speaker (or punishing body) in uttering a sentence (or imposing a punishment) intends to convey to the hearer. The speaker meaning consists of a nested set of intentions. Alternatively, this might be a function of meaning of the sentence (or punishment) itself. This distinction comes from H. P. Grice (1957), ‘Meaning’, Philosophical Review, 66, 377–88;CrossRefGoogle Scholar

H. P. Grice (1969), ‘Utterer’s Meaning and Intentions’, Philosophical Review, 78, 147–77. A different but still Gricean analysis can be seen in Robert Nozick’s discussion of the idea that punishment should express to the wrongdoer that his act was wrong and to show him its wrongfulness.CrossRefGoogle Scholar

R. Nozick (1981), Philosophical Explanations (The Belknap Press of Harvard University Press), 366–74, esp. 371.Google Scholar

See, for example, Herbert Morris (1968), ‘Persons and Punishment’, The Monist 52, 475–501;CrossRefGoogle Scholar

Jeffrie G. Murphy (1973), ‘Marxism and Retribution’, Philosophy & Public Affairs 2, 217–43.Google Scholar

The notion that nonconsequentialism is closely tied to virtue is found in P. Foot (1985), ‘Utilitarianism and the Virtues’, Mind, 94, 273–83.Google Scholar

The idea for this argument and example comes from W. D. Ross (1988), The Right and the Good (Indianapolis: Hackett Publishing Company), 138.Google Scholar

See Feldman, ‘Adjusting Utility for Justice: A Consequentialist Reply to the Objection from Justice’, 154–74; T. Hurka (2001), Virtue, Vice, and Value (New York: Oxford University Press), chs 1–2;CrossRefGoogle Scholar

Thomas Hurka (2001), ‘The Common Structure of Virtue and Desert’, Ethics, 112, 6–31;CrossRefGoogle Scholar

S. Kagan (1999), ‘Equality and Desert,’ in L. Pojman and O. McLeod (eds), What Do We Deserve? (New York: Oxford University Press), 298–314;Google Scholar

N. Feit and S. Kershnar (2004), ‘Explaining the Geometry of Desert’, Public Affairs Quarterly, 18, 273–98.Google Scholar

The Innocent Project claims that since 1992, there have been 15 people on death row who have been exonerated. The Innocence Project, ‘After 21 Years in Prison — Including 16 on Death Row — Curtis McCarty is Exonerated Based on DNA Evidence’, http://www.innocenceproject.org/Content/575.php. See, also, M. Radelet et al. (1992), In Spite of Innocence (Boston: Northeastern Press);Google Scholar

M. Radelet and H. A. Bedau (1987), ‘Miscarriages of Justice in Potentially Capital Cases’, Stanford Law Rev., 40, 21–90. This last article has come under tire.CrossRefGoogle Scholar

See S. Markman and P. Cassell (1995), ‘Protecting the Innocent: A Response to the Bedau-Radelet Study’, Stanford Law Review, 41, 121–61.CrossRefGoogle Scholar