Harvard Journal of Law and Public Policy, Sep 22, 2003
... 1 Cf HILARY PUTNAM, THE COLLAPSE OF THE FACTNALUE DICHOTOMY, AND OTHER ESSAYS 22-45 (2002). .... more ... 1 Cf HILARY PUTNAM, THE COLLAPSE OF THE FACTNALUE DICHOTOMY, AND OTHER ESSAYS 22-45 (2002). ... Principles of Punishment, in PUNISHMENT AND RESPONSIBILITY: ESSAYS IN THE PHILOSOPHY OF LAW 1, 5-11 (1968); Anthony M. Quinton, On Punishment ...
This draft is Chapter Two of a book entitled, "A Theory of Just Punishment." One initia... more This draft is Chapter Two of a book entitled, "A Theory of Just Punishment." One initial premise of the book is that current punishment theory is misguided in two respects. First, ordinary punishment theory tries to provide moral justifications for legal punishment, instead of trying to describe just norms for punishment. This is to work in the wrong direction. A moral justification for punishment will not provide us with a description of norms for just punishment. It will not tell us how to formulate self defense, why provocation manslaughter is a partial defense instead of an offense, or whether negligence is a kind of criminal fault. But to describe just norms for punishment does tell us how legal punishment is morally justified. Second, ordinary punishment theory tries to provide a moral justification by reference to punishment's functions – principally, deterrence and retribution. But legal punishment manifestly serves a large number of functions simultaneously. The functionalist approach makes it necessary to order these many functions, bringing them into conflict, placing one over the other, or denying one or another of them. This war is both pointless and incoherent. Therefore, "A Theory of Just Punishment" takes a fresh start on the problem, attempting to describe just punishment norms. Explaining this fresh start requires a bit of metatheory at the beginning. Chapter Two's contribution to this task is to explain several kinds of normative punishment theory, focusing on implicitly normative punishment theory.
... may be overruled); id. at 489 (stating that "it is arguable that Almendarez-Torres was i... more ... may be overruled); id. at 489 (stating that "it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested"); id. at 499 (Scalia ...
This article argues that the chaos of the US Supreme Court’s death penalty jurisprudence can be s... more This article argues that the chaos of the US Supreme Court’s death penalty jurisprudence can be sorted with the use of a single point of clarification. That jurisprudence uses the term “culpability” – and similar terms, such as desert, responsibility, and blameworthiness – without regard to a critical ambiguity. We use “culpability” to refer to fault in wrongdoing, as reflected in “culpability elements” such as purpose or recklessness. We also use culpability to refer to eligibility for punishment, which is at issue in the defenses of insanity or minority. Death sentencing is structured around aggravating and mitigating factors, but aggravation reflects only fault in wrongdoing, whereas mitigation concerns both fault and eligibility. I propose a re-ordering of the constitutional treatment of death sentencing in these terms
Harvard Journal of Law and Public Policy, Sep 22, 2003
... 1 Cf HILARY PUTNAM, THE COLLAPSE OF THE FACTNALUE DICHOTOMY, AND OTHER ESSAYS 22-45 (2002). .... more ... 1 Cf HILARY PUTNAM, THE COLLAPSE OF THE FACTNALUE DICHOTOMY, AND OTHER ESSAYS 22-45 (2002). ... Principles of Punishment, in PUNISHMENT AND RESPONSIBILITY: ESSAYS IN THE PHILOSOPHY OF LAW 1, 5-11 (1968); Anthony M. Quinton, On Punishment ...
This draft is Chapter Two of a book entitled, "A Theory of Just Punishment." One initia... more This draft is Chapter Two of a book entitled, "A Theory of Just Punishment." One initial premise of the book is that current punishment theory is misguided in two respects. First, ordinary punishment theory tries to provide moral justifications for legal punishment, instead of trying to describe just norms for punishment. This is to work in the wrong direction. A moral justification for punishment will not provide us with a description of norms for just punishment. It will not tell us how to formulate self defense, why provocation manslaughter is a partial defense instead of an offense, or whether negligence is a kind of criminal fault. But to describe just norms for punishment does tell us how legal punishment is morally justified. Second, ordinary punishment theory tries to provide a moral justification by reference to punishment's functions – principally, deterrence and retribution. But legal punishment manifestly serves a large number of functions simultaneously. The functionalist approach makes it necessary to order these many functions, bringing them into conflict, placing one over the other, or denying one or another of them. This war is both pointless and incoherent. Therefore, "A Theory of Just Punishment" takes a fresh start on the problem, attempting to describe just punishment norms. Explaining this fresh start requires a bit of metatheory at the beginning. Chapter Two's contribution to this task is to explain several kinds of normative punishment theory, focusing on implicitly normative punishment theory.
... may be overruled); id. at 489 (stating that "it is arguable that Almendarez-Torres was i... more ... may be overruled); id. at 489 (stating that "it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested"); id. at 499 (Scalia ...
This article argues that the chaos of the US Supreme Court’s death penalty jurisprudence can be s... more This article argues that the chaos of the US Supreme Court’s death penalty jurisprudence can be sorted with the use of a single point of clarification. That jurisprudence uses the term “culpability” – and similar terms, such as desert, responsibility, and blameworthiness – without regard to a critical ambiguity. We use “culpability” to refer to fault in wrongdoing, as reflected in “culpability elements” such as purpose or recklessness. We also use culpability to refer to eligibility for punishment, which is at issue in the defenses of insanity or minority. Death sentencing is structured around aggravating and mitigating factors, but aggravation reflects only fault in wrongdoing, whereas mitigation concerns both fault and eligibility. I propose a re-ordering of the constitutional treatment of death sentencing in these terms
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