Two new papers on punishment (Murtagh and Brooks) 1

Very interested by two new papers on punishment I just found:

1. Kevin Murtagh, “Is Corporally Punishing Criminals Degrading?” (forthcoming in Journal of Political Philosophy)

We routinely punish people in ways that cause them immense amounts of psychological suffering. Our current punishment of choice, imprisonment, causes this suffering by imposing drastic restrictions on liberty and disrupting the relationships, activities, and projects that bring happiness and meaning to people’s lives. We tend to find this regrettable, yet justifiable. However, if there is talk of punishing by inflicting physical pain, many people react with outrage, and assume that such a punishment would be barbaric, uncivilized, and degrading. I find this assumption to be highly dubious, and in this article I will defend the practice of corporally punishing criminals against objections that claim that it is degrading. Although I find these objections problematic, they are among the most plausible, and therefore merit close consideration in a philosophical discussion. At the outset, I will briefly list some problems with imprisonment and show that corporal punishment can help us to address them. After a few more preliminary remarks, I will discuss the conception of degrading punishment that I will be working with. Then I will articulate the main “objections from degradingness” by examining the claims of critics of corporal punishment and other practices that resemble it in certain respects. I will then respond to these objections and show that they fail to demonstrate that corporal punishment is degrading. The article will conclude with some general remarks on the topic and suggestions for future research.

2. Thom Brooks, “Autonomy, Freedom, and Punishment” (forthcoming in Jurisprudence; HT to Larry Solum)

In Punishment and Freedom, Alan Brudner offers an important contribution to how we understand retributivism and legal punishment with his theory of “legal retributivism.” One aspect of his legal retributivism is that we punish others not necessarily for the harms they threaten or enact, but for their threat to our individual autonomy. There is much promising in this account, although I believe that there are some significant concerns which remain. This essay will explain these concerns and why they may prove troublesome for legal retributivism.

Psychology, literature, and the criminal mind 3

Thanks to my friend Piers Steel, I found this fascinating article on the use of literature as therapy for convicts. More broadly, the piece points out the benefits of interdisplinary approachs to humanities and sciences, by detailing the beneficial psychological effects of the lessons of literature. (This is preaching to the choir a bit here, I know, but as I’m currently writing a piece on moral psychology and crime, I found it particularly fascinating.)

Domestic Violence and Adultery [UPDATED] 1

Thanks to the dutiful tweeting of Mai-Linh Hong of Legal Lacuna and the blog Por Completo: the Puerto Rican Supreme Court decided that their Domestic Violence Prevention and Intervention Law does not apply to violence perpetrated while in an adulterous affair. It seems the language of the law applies only to couples who are married, living together, or have a consensual relationship, and according to the blog (as the decision is in Spanish, and I barely know English as it is): “The opinion establishing the exclusion includes this excerpt and interprets it to mean that the law ‘was limited to violence in the marital sphere or between couples or exes’…”

The blog adds that: “Which not only completely misses the point, but opens the door to a dangerous kind of moralizing in which whether a woman is seen as deserving the protection of the State depends on whether or not we think she had it coming. In laying the groundwork for excluding other kinds of relationships from consideration, it also legitimizes traditional heterosexual relationships (more specifically, marriages) and sets up a situation in which it is actually dangerous to operate outside of that construct.”

While of course I don’t condone this type of violence (nor any other), and my intuition leans toward including such incidents under this law, I don’t agree with the blogger’s rationale. As I understand domestic violence laws, their purpose is to make sure the protections of the state extend into the marital dwelling, where traditionally it was not encouraged (and a fact which was taken advantage of). Naturally, this would extend to nonmarried cohabitating couples as well, and even to committed relationships with no cohabitation (given that they spend much time at their separate residences), since much activity of such couples takes place in the privacy of a home.

Regardless of the court’s actual rationale, their decision could be interpreted as saying that extramarital affairs do not take place mostly at residences which are considered private (and sacrosanct) places, and therefore do not need the extra protections the state extends to domestic arrangements, but can rely instead on the protections against violent crime that the state provides in general. This does overlap, of course, with social mores against extramarital affairs (I do not know if Puerto Rico has adultery statutes), and such mores may have influenced the deciding judges, but my point is simply that there may be a less moralistic interpreation of the decision (one I nonetheless disagree with).

UPDATE: After a Twitter conversation with Mai-Linh which goaded my thoughts a little more, let me clarify: I merely identified a rationale for the decision based on the motivation for domestic violence laws. But since I disagree with the decision, and if one believes that additional state protection is necessary in all intimate relationships, regardless of domesticity, then the interpretation of those laws must change. This decision might have been a way to do that, had it gone the other way.

“Law and Order” at Law, Culture, and Humanities meetings Reply

One thing I forgot to mention in my introductory post was that I too attended the Law, Culture, and Humanities meetings (as did Warren), and I blogged about one of the final sessions, a roundtable discussion of the television show “Law and Order,” at my Psychology Today blog.

I also participated in a panel about virtue and law; I will try to blog about that here soon…

Greetings (and a peek at my table) Reply

Hello! Thanks to Warren and the rest of the Table for having me here–I’ll try not to disappoint!

Warren did a fantastic job introducing me, so I’ll just add a couple things…

First, I come to law through economics and philosophy, and I am fortunate to teach courses in both law-and-economics and legal philosophy. My main interests in law are punishment (retributivism in particular) and jurisprudence (especially Ronald Dworkin’s law-as-integrity). I have a new edited volume out (or nearly out) from Oxford titled Retributivism: Essays on Theory and Policy, which I will blog about here, as well as a monograph coming soon from Stanford, Kantian Ethics and Economics: Autonomy, Dignity, and Character, which plants the seeds for a Kantian-Dworkinian synthesis that I hope will be the topic of my next book. (More about that later too if you’re interested–I invoke it a bit in my chapter in the retributivism book also.)

Second, I blog several other places: Economics and Ethics (where I focus primarily on news and research in those areas, but also law and philosophy more broadly), The Comics Professor (where I talk about one of my passions, comic books, usually in terms of philosophy, as in my books like Batman and Philosophy), and Maybe It’s Just Me, But… (my blog at Psychology Today, where I go on about just about anything, including legal issues such as the insanity defense,  wrongful convictions, and most recently employment discrimination). I’m also on Twitter, where you can find updates about all of these things.

Finally, a look at my table. My latest book acquisition is David Luban’s Legal Ethics and Human Dignity, and on the “read soon” pile are:

And currently playing: Louis Armstrong, Louis in New York, preceded by The California Concerts.

Once more, thank you for having me here, and I look forward to hearing from you!