Jeffrie G. Murphy

Marxism and Retribution

length about the moral problems involved in punishing the innocent and the obstacles these problems raise to an acceptance of the moral theory of utilitarianism. Yet, not much has been said about the moral problems raised to utilitarianism from punishing the guilty. Yet this is necessarily so for punishing an innocent man, in Kantian language, involves using that man as a mere means or instrument to some social good and is thus not treating him as an end in himself, in accordance with his dignity or worth as a person. The utilitarian theory really cannot capture the notion of persons having rights. Marx was correct when he said that retributivism, formulated as in this article, does respect the rights of persons and is the only morally defensible theory of punishment. This article concludes that retributive theory, in spite of the bad press that it has received, is a morally credible theory of punishment that can be a reasonable general justifying aim of punishment and that a Marxist analysis of a society can undercut the practical applicability of that theory.

Moral Death: A Kantian Essay on Psychopathy

This article is concerned with an examination of the rights and responsibilities of those individuals having what psychoanalysts, psychiatrists, and psychologists call psychopathic, sociopathic, or antisocial personalities. It invokes a Kantian theme, however, because in coming to terms with the concept of psycopathy, one is also forced to come to terms with the question of what it is to be a person with dignity and thereby meriting that special kind of respect which is entailed by a moral commitment to justice rather than mere utility. While the author first addressed this issue in his book Kant: The Philosophy of Right, this article expands further on this issue and constitutes a significant rejection of that book’s arguments. While, in the book, the author argued that it is a capacity to choose and not moral autonomy which confers dignity or worth upon persons, this article reverses that position and argues that it is moral autonomy and not capacity to choose which confers dignity or worthy on persons. No one had articulated a theoretical defense for this position, however, and this article attempts to fill that theoretical gap.

Does Kant Have a Theory of Punishment

No doubt almost everyone would agree, although for different reasons, that any acceptable theory of punishment must make an important place for the values of justice, personal desert, respect for persons, and individual responsibility-it must, in short, make an important place for retributive values. This article pursues in some detail the grounds for the author’s current uneasiness with Kants writings on crime and punishment. Hopefully, these grounds will raise issues of general interest that will be worthy of discussion and consideration which might possibly lead to the (at least partial) salvation of Kants theory. If one selects carefully among the many remarks and insights that Kant has left us about crime and punishment, one might even be able to build an edifice from the bricks provided, but Kant himself most likely did not succeed in building such an edifice himself.

Retributivism, moral education, and the liberal state

What is the connection between punishment and immorality? Deterrence theorists maintain that punishment scares people away from immorality. Retributive theorists claim that punishment makes sure that wrongdoers suffer in proportion to their moral iniquity and thereby give up any unfair advantage over others their wrongdoing may have won them.1 Moral education theorists—who seem to be dominating philosophical discussion these days—maintain that punishment functions to teach people what is wrong by, in Robert Nozick’s phrase, “connecting them with correct values.“2

Two Cheers for Vindictiveness

Vindictiveness (the desire for revenge) is commonly condemned as irrational, immoral, and deserving of no place in civilized legal systems. It is here argued that this condemnation may be hasty - may often reflect more what we think we ought to say than what we actually feel and believe. After an attempt to rehabilitate, at least partially, the reputation of the vindictive passions, the article closes with some serious cautions with respect to the ultimate legitimacy of acting upon these passions.

Getting Even: The Role of the Victim

This article responds to criticisms of the role revenge plays in the criminal punishment system. Many times victims often feel that their particular injuries are ignored while the criminal justice system addresses itself to some abstract injury to the state or to the rule of law itself, which can sometimes appear to result in wrongdoers being treated with much greater solicitation and respect than their victims receive. This has given rise to the victims’ rights movement. This article addresses one of the issues raised by this movement relating to the issue of the legitimacy of hatred and desires for revenge as operative values in a system of criminal law. While it is widely assumed that this attitude deserves no place in the moral and legal outlook of civilized people, this article attempts to show that the burden of proof should be placed on those who in principle oppose revenge and to suggest that this burden might not be as easy to shift back to those advocating for revenge as an operative principle. It concludes that crime victims often want to influence sentencing, and their motives for this are often vindictive. While such motives may be dishonorable and giving a legal role to victims so motivated would indeed produce deep harm to our system of criminal justice, this has mostly been simply assumed and not demonstrated. In fairness to those victims it should be demonstrated before the state simply dismisses as irrational or evil the passionate claims of those whom it has failed to protect from criminal violence.

Forgiveness in Counseling: A Philosophical Perspective

There is, in the contemporary world of counseling, an increasingly visible movement called “philosophical counseling”—a movement that seeks to make the discipline of philosophy more central to counseling than the discipline of psychology. Although this movement has just started to gain attention in America, it has already attained some prominence in other countries—e.g. Israel, Germany and Holland.1 It seems that the influence of philosophy on the practice of counseling is currently of sufficient weight that even some who would not identify themselves as philosophical counselors now impose philosophical constraints on their psychological research and practice. For example: A recent essay by psychologist Robert D. Enright on forgiveness in counseling, an essay to be discussed in more detail later, explicitly makes “philosophical rationality” a condition of appropriateness in counseling.

Incompetence and Paternalism

Paternalism is the coercing of people primarily for what is believed to be their own good. When, for example, a person is committed to a mental hospital, not because he is believed to be dangerous to others, but because he isbelieved to be dangerous to himself or at least in need of treatment, we have a clear example, of paternalistic intervention. The coercion involved in such intervention comes into conflict with certain basic principles of political liberty, however, and is usually regarded as justified only if the individual in question is judged incompetent to make a certain class of decisions — e.g. to refuse treatment for supposed mental illness. John Stuart Mill’s classic liberal limitation on coercion (“The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others”.1) is normally thought to apply only to persons who are competent — e.g. not to children or the insane.

Shame Creeps Through Guilt and Feels Like Retribution

The stories of William Trevor often contain, near the end, a single sentence that captures – in one crystalline moment – a core insight toward which the story has been building all along. Near the end of his recent novel Death in Summer, the following sentence occurs: “Her compassion faltered: shame creeps through guilt and feels like retribution.” I believe that my ability to understand the profundity of this sentence, and thus the story in which it occurs, was aided enormously by my reading of the essays of Herbert Morris. And thus, in my essay, I will reflect on the themes present in this sentence and thereby follow, in my own limited way, a path familiar to all those who have read Morris: drawing philosophical inspiration from literature, trying to be open to the moral and spiritual insights latent in dark and mysterious stories and sayings, reflecting on the inter- twined emotions of guilt and shame, and seeing – in all of this – implications for punishment and forgiveness, both of self and of others. In Morris’s own work, of course, these perspectives are all employed with great human sensitivity – employed by a person whose compassion never seems to falter.

Consent, Coercion, and Hard Choices

This famous passage from Hume is often quoted approvingly in attacks on the Lockean notion of tacit consent as a foundation for political obligation.3 Even writers who do not quote the passage directly use rhetoric of a similar nature in calling doctrines of implied and tacit consent into serious question.4 I have myself quoted the passage, without comment, as though it constituted a self-explanatory and self-evidently sound refutation of such doctrines.5