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Innocence lost : a problem for punishment as duty
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Tomlin, Patrick (2017) Innocence lost : a problem for punishment as duty. Law and Philosophy, 36 (3). pp. 225-254. doi:10.1007/s10982-017-9288-2 ISSN 0167-5249.
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Official URL: http://dx.doi.org/10.1007/s10982-017-9288-2
Abstract
Constrained instrumentalist theories of punishment – those that seek to justify punishment by its good effects, but limit its scope – are an attractive alternative to pure retributivism or utilitarianism. One way in which we may be able to limit the scope of instrumental punishment is by justifying punishment through the concept of duty. This strategy is most clearly pursued in Victor Tadros’ influential ‘Duty View’ of punishment. In this paper, I show that the Duty View as it stands cannot find any moral distinction between the permissible punishment of the guilty and the permissible punishment of the innocent in extreme circumstances, therefore undermining one the key pillars of its intuitive appeal. I canvass several ways to respond to this problem, arguing that a rights (or claims) forfeiture theory which employs the distinction between rights forfeiture and rights infringement (or claims forfeiture and infringement) is the best solution.
Item Type: | Journal Article | ||||||||
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Subjects: | B Philosophy. Psychology. Religion > B Philosophy (General) | ||||||||
Divisions: | Faculty of Social Sciences > Philosophy | ||||||||
Library of Congress Subject Headings (LCSH): | Punishment -- Philosophy, Instrumentalism (Philosophy), Duty | ||||||||
Journal or Publication Title: | Law and Philosophy | ||||||||
Publisher: | Springer | ||||||||
ISSN: | 0167-5249 | ||||||||
Official Date: | June 2017 | ||||||||
Dates: |
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Volume: | 36 | ||||||||
Number: | 3 | ||||||||
Page Range: | pp. 225-254 | ||||||||
DOI: | 10.1007/s10982-017-9288-2 | ||||||||
Status: | Peer Reviewed | ||||||||
Publication Status: | Published | ||||||||
Access rights to Published version: | Open Access (Creative Commons) | ||||||||
Date of first compliant deposit: | 13 July 2018 | ||||||||
Date of first compliant Open Access: | 13 July 2018 | ||||||||
Open Access Version: |
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