Moral Pluralism and the Complexity of Punishment

Nicolas Nayfeld is a postdoctoral fellow at Paris 1 Panthéon-Sorbonne, where he teaches philosophy of law.

• Acknowledgements Introduction I. A mixed theory of punishment? II. A form of rule utilitarianism? III. A liberal form of utilitarianism? IV. A goal/constraint approach? 1. Desert scepticism 2. An oversimplified interpretation 1 The foundations of Hart’s master idea I. The distinction of issues II. Value pluralism 1. Berlin’s value pluralism 2. Hart’s value pluralism 3. Value pluralism and the question of distribution III. Pluralism about forms of moral reason 1. Nagel and the “fragmentation of value” 2. Hart’s pluralism about forms of moral reason 3. Pluralism about forms of moral reason and the question of justification IV. The problem of moral conflicts 1. Back to Aristotle 2. Hart and judicial virtues V. Hart’s anti-reductivist stance 2 The definition of punishment I. Hart’s definition of standard punishment 1. Hart’s reflections on definitions 2. The origins of Hart’s definition 3. Quinton’s subterfuge 4. Rawls’ logical argument II. A revision of Hart’s definition 1. Must punishment involve consequences normally considered unpleasant? 2. Must punishment be for an offence against legal rules? 3. Must punishment be of an actual or supposed offender for their offence? 4. Must punishment be intentionally administered by human beings other than the offender? 5. Must punishment be imposed and administered by an authority constituted by a legal system against which the offence is committed? 6. The expressive objection III. Conceptual distinctions 1. The act of punishing versus the practice of punishing 2. The practice of legal punishment versus the penal system 3. Legal punishment versus criminal law 4. Punishment versus threats 5. Punishment versus taxes 6. Punishment versus measures 3 The justification of punishment I. A clarification of the question of justification 1. A normative issue 2. What does it mean to justify? 3. Punishment on trial 4. The burden of justification II. The Benthamian justification 1. From Bentham to Hart 2. Is punishment a lesser evil? 3. Is punishment a necessary evil? 4. Objections III. The right-based justification 1. Retributive justifications 2. Expressive justifications 3. Right-based justifications 4 Criminal responsibility I. The origin of Hart’s rule of responsibility II. The meaning of Hart’s rule of responsibility 1. The perpetrator of an illegal act 2. Capacities: the key to exemptions 3. Fair opportunity: the key to excuses 4. Necessity: the key to justifications 5. Conclusion (with a remark on mental disorder) III. The justification of Hart’s rule of responsibility 1. Hart’s criticism of the utilitarian justification 2. Hart’s pluralist justification IV. Determinism and Hart’s rule of responsibility 1. What is determinism? 2. Compatibilism 3. Incompatibilism 5 Sentencing I. Hart’s principles regarding the quality/quantity of punishment 1. Ordinal proportionality: maximum penalties should be proportional 2. Humanity: no one shall be subjected to inhuman or degrading punishment 3. Equality of treatment: treat like cases alike and different cases differently 4. Individualization: sentences should be individualized without exceeding the maximum penalty II. The justification of Hart’s principles regarding the quality/ quantity of punishment 1. The justification of ordinal proportionality 2. The justification of humanity 3. The justification of equality of treatment 4. The justification of individualization 6 The Hart/Wootton debate I. Identifying offenders II. Dealing with offenders III. Wootton’s arguments IV. Hart’s objections Conclusion Index