Punishment and Desert

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It appears then that the consequentialist approach confronts overwhelming objections. Sometimes deserved treatment is expedient; sometimes it is not. Sometimes undeserved treatment is expedient; sometimes it is not. As a result, appeals to the utility of giving someone some benefit or burden cannot justify the claim that the person deserves that sort of treatment. A second approach to the justification of desert claims is based on some ideas concerning institutions.

Our discussion in this section has benefitted enormously from McLeod b. First, some background: an institution may be identified by a system of rules that define positions, moves, penalties, rewards, etc.

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In some cases the rules of an institution are carefully written down and perhaps made a matter of legislation. The system of taxation in some country might be a good example. In other cases the rules of an institution are not explicitly formalized. That is a puzzle best left to the sociologists. We may also need to assume that when people set up institutions, they do so with some intention. They are trying to achieve something; or more likely, they are trying to achieve several different things.

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Maybe different people have different aims. We can say — somewhat vaguely — that the point of an institution is the main goal or aim that people have in establishing or maintaining that institution. A person may be governed by some institution even if he does not like it, or does not endorse it.

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Thus, for example, suppose a criminal justice system exists in a certain society. Suppose some miscreant lives in that society and has been charged with some crime. Suppose he is found guilty in a duly established court of law and is sentenced to ten years in prison. He is governed by the rules of the judicial system whether he likes it or not.

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Again, this is a tricky sociological notion, not easily spelled out. Some philosophers have said things that suggest that it is possible to justify a desert claim by identifying an institution according to which the deserver is entitled to the desert. We can state this idea a bit more clearly:. Most of these emerge from the requirement that a desert claim is justifiable always and only when there is an appropriate actual social institution.

This produces a number of devastating objections. Suppose a thoroughly decent person has suffered a number of serious misfortunes. He deserves a change of luck; he deserves some good luck for a change. Suppose he lives in a country where there is no social institution that supplies compensatory benefits to those who have had bad luck. If AID were true, it would be impossible to justify the claim that he deserves it.

An equally serious objection arises from the fact that some of the institutions that actually exist are morally indefensible. Let us imagine a thoroughly horrible social institution — slavery.

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  • Suppose some unfortunate individual is governed by that institution. Suppose the institution contains rules that say that slaves who are strong and healthy shall be required to work without pay in the cotton fields. Suppose this individual is strong and healthy. Consider the claim that he deserves to be required to work in the fields without pay in virtue of the fact that he is strong and healthy. AID implies that this desert claim is justified. That is as preposterous as it is offensive. The general point: we must not lose sight of the fundamental difference between entitlement and desert.

    AID seems to confuse these. It seems to say that you deserve something if and only if you are entitled to it by the rules of an actual institution. Since there are bad institutions, and cases in which desert arises in the absence of institutions, this is clearly a mistake. We can deal with all of these objections by altering the institutional account of justification.

    Desert (philosophy)

    Instead of making the justification of a desert claim depend upon the existence of an actual social institution, we can make it depend upon the rules that would be contained in some ideal social institution. The main change is that we no longer require that the social institution exists.

    We require instead that it be an ideal institution — an institution that would be in some way preferable to the actual one. Then we can attempt to justify desert claims by saying that the deservers would be entitled to those deserts by the rules of an ideal social institution. We might try to define ideality by saying that an ideal institution is one that would distribute benefits and burdens to people precisely in accord with their deserts.

    With this account of ideality in place, IID generates quite a few correct results. Unfortunately, it would be unhelpful in the present context. After all, the aim here is to explain how desert claims can be justified. This account would explain desert by appeal to ideal institutions, and then explain ideal institutions by appeal to desert. This yields a form of the institutional approach that seems importantly similar to the consequentialist approach already discussed.

    Unfortunately, with this conception of ideality in place, the proposal seems to inherit some of the defects of the simpler consequentialist approach. It implies, for example, that if it is possible for there to be a seriously unfair but nevertheless utility maximizing institution, then people would deserve the burdens allocated to them by the rules of that institution, even if it were not in place. A further difficulty arises in connection with actual but not optimific institutions. Suppose, for example, the utility maximizing ice-skating institution would have rules specifying that in order to win the gold medal, a competitor must perform a 7 minute free program; a 6 minute program of required figures; and that all contestants must wear regulation team uniforms consisting of full length trousers and matching long-sleeved team shirts.

    Suppose instead that the de facto institution contains some slightly different but still fairly reasonable rules for ice-skating competitions.

    Suppose Nancy abides by all the relevant extant rules and is declared the winner in a competition. She is entitled to the gold medal by the actual rules. It may seem, in such a case, that her claim to deserve the medal would be justified. But since she would not be entitled to it by the rules of the ideal institution, IID implies that it is impossible to justify her claim that she deserves the medal by virtue of her performance here tonight. It appears, then, that difficulties confront the attempt to justify desert claims by appeal to claims about the entitlements created by institutions, actual or ideal.

    Commentators have understood these philosophers to have been defending the idea that desert claims can be justified by appeal to facts about appraising attitudes. Some have said, for example, that David Miller defended a view of this sort in his Social Justice While there may be debate about whether Miller actually intended to be defending such a view, it is worthwhile to consider it.

    In the discussion that follows we are indebted to McLeod and McLeod In each case, if a person has such an attitude toward someone, he has that attitude in virtue of some feature that he takes the person to have. Suppose, for example, that you admire someone; then you must admire her for something she is or something she did.

    Maybe she worked hard; or wrote a good paper; or can run very fast; or is able to play the violin beautifully. Similarly for the other positive appraising attitudes. They are similar to the positive attitudes in this respect, if you disapprove of someone, then you must disapprove of him for something he is or something he did. Maybe he plagiarized a paper; maybe he is totally out of shape; maybe he is utterly talentless. He also says that the range of possible desert bases coincides with the range of bases for appraising attitudes.

    You cannot deserve something on the basis of your possession of a property, DB, unless we could have an appraising attitude toward you on the basis of your possession of DB. Some have understood Miller to be claiming that something about these appraising attitudes provides the answer to our question about the justification of desert claims. A certain appraising attitude may seem appropriate to a desert claim.

    For example, suppose a person feels strong approval a positive appraising attitude of a subject in virtue of his heroic action. The attitude would be appropriate to the claim that the hero deserves a reward for his heroism. On the other hand, if someone feels contempt a negative appraising attitude for a person in virtue of his cowardice, then this attitude would be appropriate to the claim that the coward deserves some sort of penalty. On one possible view, whether a desert judgment is justifiable depends upon whether the person who makes that judgment has an appraising attitude that is appropriate to the desert claim.

    Suppose the leader of a terrorist gang claims that a member of his gang deserves respect for having set off a suicide bomb in an elementary school. Suppose the leader has great admiration for this the gang member precisely because he set off the bomb. On the current proposal, since the leader in fact has a positive appraising attitude toward the member, his desert claim is justified. That cannot be right. The difficulty cannot be resolved by appealing to the reactions of the community. Surely, however, no matter how many of his compatriots admire him for doing this deed, the claim that he deserves admiration for having done it is still not justified.

    Instead of appealing to facts about the appraising attitudes that others in fact have, we might consider a different question: what sort of appraising attitude would be fitting for others to have in virtue of the fact that he has committed this deed?

    Retributive Justice (Stanford Encyclopedia of Philosophy)

    If it would be fitting for others to admire him for bombing the school, then he deserves admiration. If it would be fitting for others to hold him in contempt for bombing the school, then he deserves contempt. In general, then, we might say that the claim that S deserves a certain benefit burden in virtue of having done X is justified if and only if it would be fitting for observers to have a positive negative appraising attitude toward S in virtue of his having done X. This proposal seems misguided for several reasons. First, it seems to be circular.

    In this form the proposal seems circular. Furthermore, it appears that there are cases in which a person deserves something but in which no appraising attitude seems to be fitting. Suppose, for example, that an abandoned child is in need of medical care and nurturance. The fact that the child is sick does not make it appropriate for onlookers to admire her or to condemn her.

    Nevertheless, the claim that the child deserves medical care and nurturance in virtue of her need might be justified.

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