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What Unconditional Credence In Individual Desert Claims Does Retributivism Require?, Emad H. Atiq
What Unconditional Credence In Individual Desert Claims Does Retributivism Require?, Emad H. Atiq
Cornell Law Faculty Publications
Punishing a person based on low unconditional credence in their deservingness to be punished is consistent with retributivist deontological principles. Negative retributivism absolutely prohibits the intentional or knowing infliction of undeserved harm on individuals identified as undeserving, not the intentional or knowing infliction of risks of undeserved harm on individuals. Meanwhile, the knowing infliction of undeserved harm on some unidentified individuals generates not overriding reasons against punishment, but pro tanto reasons against punishment that are to be weighed against other non-overriding reasons for punishment like crime prevention. The upshot is that uncertainty regarding any identified person’s deservingness to be punished …
A Normative Theory Of The Clean Hands Defense, Ori J. Herstein
A Normative Theory Of The Clean Hands Defense, Ori J. Herstein
Cornell Law Faculty Publications
What is the clean hands defense (CHD) normatively about? Courts designate court integrity as the CHD’s primary norm. Yet, while the CHD may at times further court integrity it is not fully aligned with court integrity. In addition to occasionally instrumentally furthering certain goods (e.g., court legitimacy, judge integrity, deterrence), the CHD embodies two judicially undetected norms: retribution and tu quoque (“you too!”). Tu quoque captures the moral intuition that wrongdoers are in no position to blame, condemn, or make claims on others who are guilty of similar or related wrongdoing. The CHD shares the structure of the tu quoque: …
Towards A Unique Theory Of International Criminal Sentencing, Jens David Ohlin
Towards A Unique Theory Of International Criminal Sentencing, Jens David Ohlin
Cornell Law Faculty Publications
International criminal law currently lacks a robust procedure for sentencing convicted defendants. Legal scholars have already critiqued the sentencing procedures at the ad hoc tribunals, and the Rome Statute does little more than refer to the gravity of the offense and the individual circumstances of the criminal. No procedures are in place to guide judges in exercising their discretion in a matter that is arguably the most central aspect of international criminal law - punishment. This paper argues that the deficiency of sentencing procedures stems from a more fundamental theoretical deficiency - the lack of a unique theory of punishment …
Punishment As Atonement, Stephen P. Garvey
Punishment As Atonement, Stephen P. Garvey
Cornell Law Faculty Publications
How would punishment work in an ideal community, one in which the members of the community identify with one another? In this article, Professor Stephen Garvey argues that punishment in such a community would be understood as a form of secular penance and would form part of the process by which the wrongdoer atones for his wrongdoing. Compared to this account of punishment, which Garvey calls "punishment as atonement," other accounts fall short. The older and dominant approaches of utilitarianism and retributivism offer justifications for punishment that ignore the goal of atonement. Newer approaches, restorativism and libertarianism, recognize the importance …
Can Shaming Punishments Educate?, Stephen P. Garvey
Can Shaming Punishments Educate?, Stephen P. Garvey
Cornell Law Faculty Publications
So-called "shaming" penalties have received a fair amount of attention in the popular press and, thanks primarily to the work of Dan Kahan and Toni Massaro, in the legal literature as well. Unfortunately, the current debate focuses on "shame" as the main way to understand what these penalties are all about. I argue that at least some of these so-called shaming penalties are better understood as "educative" penalties. I develop this "educating model" and contrast it with the "shaming model." I also suggest that penalties fitting the educating model have more normative appeal than those fitting the shaming model.