Table Of ContentRETRIBUTIONRECONSIDERED
PHll..OSOPHICALSTUDIES SERIES
FoundedbyWilfridS.Sellarsand KeithLehrer
Editor:
KEITHLEHRER,University ofArizona
BoardofConsultingEditors:
JONATHANBENNEIT,Syracuse University
ALLANGmBARD, University ofMichigan
ROBERTSTALNAKER,MassachusettsInstitute ofTechnology
ROBERTG.TURNBULL,Ohio State University
VOLUME54
JEFFRIEG.MURPHY
College ofLaw,ArizonaState University, Tempe, U.S.A.
RETRIBUTION
RECONSIDERED
More Essays in the Philosophy ofLaw
Springer-Science+Business Media, B.V.
LibraryofCongressCataloging-in-PublicationData
Murphy. Jeffrle G.
RetrIbutIon reconsIdered : lore essays In the phIlosophy of law I
Jeffrle G. Murphy.
p. CI. -- (PhIlosophIcal Itudles serIes ; v. 54)
Includes Index.
1. Law--Phllolophy. 2. Punllhlent--Phllosophy. I. TItle.
II. SerIes.
K246.M875 1992
340'.1--dc20 92-16824
ISBN978-90-481-4170-8 ISBN978-94-015-7922-3(eBook)
DOI 10.1007/978-94-015-7922-3
Prmredonadd1Teepaper
AllRightsReserved
©SpringerScience+BusinessMediaDordrecht1992
OriginallypublishedbyKluwerAcademicPublishersin1992.
Softcoverreprintofthehardcover Istedition1992
Nopartofthematerial protectedbythiscopyrightnoticemaybereproducedor
utilizedinanyform orbyanymeans. electronicormechanical,
includingphotocopying,recordingorbyanyinformationstorageand
retrieval system.without writtenpermissionfromthecopyrightowner.
For Herbert Morris
CONTENTS
PREFACE ix
ACKNOWLEDGEMENTS xiii
WHY HAVE CRIMINAL LAW AT ALL? 1
RETRIBUTIVISM, MORAL EDUCATION, AND THE
LIBERAL STATE 15
DOES KANT HAVE A THEORY OF PUNISHMENT? 31
GETTING EVEN: THE ROLE OF THE VICTIM 61
THE JUSTICE OF ECONOMICS 87
BLACKMAIL: A PRELIMINARY INQUIRY 105
CONSENT, COERCION AND HARD CHOICES 125
RATIONALITY AND CONSTRAINTS ON
DEMOCRATIC RULE. 143
CONSTITUTIONALISM, MORAL SKEPTICISM, AND
RELIGIOUS BELIEF 167
KANTIAN AUTONOMY AND DIVINE COMMANDS 181
WAR, SELF-DEFENSE, AND DEFENSE OF OTHERS 189
THE WILL TO DEVIANCE 201
viii
INJUSTICE AND MISFORTUNE 211
INDEX OF NAMES 225
PREFACE
It is with some personal reluctance that I publish this second
collection of essays, and I do so mainly because many friends and
colleagueshavesuggested(kindlyifnot wisely)that at least some ofthem
deserve the wider circulation that onlya book makes possible.1
My first collection (Retribution, Justice and Therapy), published in
1979,made up a genuine book because most of the essays were held
together by my then firm commitment to a retributive theory of
punishment and aKantian moral foundation forthat theory. The present
collection, however, is more Humean than Kantian-held together more
by doubt and skepticism than by any positive theoretical commitments.
Ino longerhavethetotal confidenceineither retributivismorKantianism
that I once had, and thus the essays in the present collection show my
thinking in a period of transition. Whether this is a transition toward
greater wisdomor toward mere senescence and career decayIwillleave
for others to decide.
The essayson crime and punishment that open the collection reveal
(i) my desire to remain committed to some of the core insights in
retributivism in tension with (ii) my increasing realization of the
foundational problems facedbythistheory whenplaced in the context of
moral and political philosophy. I am, for example, an unreconstructed
liberal (with libertarian leanings) in political philosophy, and I find it
increasinglyhard to make room for positive retributivism in a generally
liberal theory of the state. This makes mycommitment to retributivism
much more tentative than itusedto be.? Ihavealso,under the influence
I"WhyHaveCriminalLawatAll?"didnotoriginallyappear asanessaybutasasection
in a chapter I wrote for the textbook on jurisprudence that I co-authored with Jules
Coleman. Iincludeithere because Ithink itcontsins someuseful ideas-ideas that Ido
notwantto remaintotsllyburiedinatextbookandunnoticed (exceptperhaps bystudents).
2Some readers will recall that I rsised some political problems for
retributivism-problems of a very different sort-in my 1973 essay "Marxism and
Retribution" (reprinted inmyearlier collectionofessays). Inowregard thisessayasvery
deeply f1awed-a product of some previous selfwithwhomI nowfeelverylittle affinity.
ix
x RETRIBUTION RECONSIDERED
of my friend Jules Coleman, found my thinking about crime and
punishment increasinglyinfluenced byeconomic ideas. Ifone comes to
think that the criminal law exists in part to provide the "kickers"
(incentives) necessary to keep certain forms ofanti-social conduct at an
optimal level-incentivesthat may not be necessary for other bits of
conduct equally evil-then one will begin to move away from the
exclusively moralistic theory of crime and punishment in which
retributivism sits most comfortably. One will,for example, move away
from totallypunitive thinking and begin to consider tort remedies rather
than criminal lawremedies for some evilconduct.
Following the four opening essayson crime and punishment, there
are three essays that pursue-ina very general sense-some issues that
have been explored in the law and economics literature. Although I
acknowledge that my thinking has been influenced by the law and
economics movement, I want to reject this movement as the exclusiveor
even dominant model for jurisprudence-as the essay "The Justice of
Economics" makes clear. The essayson blackmailand hard choices(and
their bearing on socialcontract theory) make itclear that Iadopt a moral
theory of coercion (rather than a purely psychologicaltheory) but that I
increasingly believe that the question "Which instances of immoral
coercion should be criminalized?" does not admit of a purely moral
answer. Rather the question demands a consideration of issues of
efficiency and social policy. (These issues may, of course, be called
"moral"ifone abandons the Kantian idea that all moral issues are issues
of principle and thus allowsutilitarianism to count as a moral theory.)
The next group of essaysrepresents an attempt to explore some of
the foundational problems in moral and political theory that have
provoked my increasing skepticism about Kantianism and retributivism.
I think that these essayscontain ideas of value but also reveal that I do
not have any deep talent for this sort of thing. Others, however, have
claimed that my self-judgment here is too harsh. There is, I suppose,
some slim chance that they are right; and so I include the essays as a
gesture of hope-agesture no doubt to be dashed by myreviewers.
Given mypresent viewofthis earlyessay,Icanonlyregret that itismymoatwell-known
and widelyanthologized essay.
PREFACE xi
The collectionconcludeswiththreeessaysthatwereoriginallypublic
lectures or book reviews. Each contains, I think,a fewinteresting ideas.
I have often learned a great deal, not merely from the confidently
presented theories of others, but from their philosophical musings,
ruminations, and tentative explorations as well. The present essaysare
exercisesofthe latter sort, and I hope that others might findthem useful
instimulating and organizingtheir ownthinking. It iscertainly thishope
that prompts their republication.
Some of the essays in the present collection originallyappeared in
philosophyjournals,some inlawreviews,and some ingeneral periodicals
of a presumed intellectual nature. Each of these organs had its own
particular requirements for notes and citations (law reviews are
particularly demanding and bizarre in this regard), and I have left these
intact.
Twoofmyrecent essays,"Forgivenessand Resentment" and "Mercy
and LegalJustice,"are not includedhere because revisedversionsofthem
appear as Chapters I and 5 in the book Forgivenessand MercybyJeffrie
G. Murphy (Chapters 1,3and 5)and Jean Hampton (Chapters 2and 4),
Cambridge: Cambridge UniversityPress, 1988.
Whatever is good in these essays I dedicate to Herbert Morris,
Professor of Law and Philosophy and Dean of Humanities at UCLA.
Distance has kept me from developing the really close personal
relationship with Herb that I know I would have enjoyed, but I have
admired his workand have found myownthinkinggreatly stimulated by
hisideas ever sinceIaudited hiscriminallawclassat UCLA in 1968. He
is,inmyview,withoutpeer asaphilosophicalwriter on the topicsofguilt
and punishment because his work reveals a mind that is not onlyclever
but profound. I have never read an essaybyHerb that did not force me
to rethink myownideas at a basiclevel,and I knowof manyothers who
have responded to hisworkina similarway. I dedicate thisbook to him
withesteem and affection.
