Moore’s Moral Facts and the Gap in the Retributive Theory.
Criminal Law and Philosophy, 5
Official URL: http://dx.doi.org/10.1007/s11572-011-9117-x
The purely retributive moral justification of punishment has a gap at its centre. Having renounced consequentialist justifications, it fails to explain why the punishable person should not be protected by the intuitively powerful moral idea that afflicting another person is always wrong. Attempts to close the gap have taken several different forms, and only one is discussed in this paper. This is the attempt to push aside the ‘protecting’ intuition, using some more powerful intuition specially invoked by the situations to which criminal justice is addressed. In one aspect of his complex defence of pure retributivism, Michael S. Moore attempts to show that the emotions of well-adjusted persons provide evidence of moral facts which, when worked into a valid moral theory, justify the affliction of culpable wrongdoers in retribution for their wrongdoing. In the first part of this strategy, he invokes analogies with our intuitions about the appropriateness of sanctions and entitlements in other legal contexts, such as tort and property rights. In the second part, he appeals to emotions aroused by especially heinous crimes, including the punishment-seeking guilt appropriate to the offender who truly confronts his act. The paper argues that neither part of the strategy is successful: the intuitions appealed to in each case can be at least as plausibly, and perhaps more discriminatingly, accounted for within frameworks of theory which require no commitment to pure retributivism.
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