Injustice and the right to punish

Abstract

Injustice can undermine the standing states have to blame criminal offenders, and this raises a difficulty for a range of punishment theories that depend on a state's moral authority. When a state lacks the moral authority that flows from political legitimacy, its right to punish criminal lawbreakers cannot depend on a systematic claim about the legitimacy of the law. Instead, an unjust state is permitted to punish only criminal acts whose wrongness is established directly by morality, and only when criminal guilt is established through legal procedures that meet minimal standards of fairness. These restrictions narrow the proper scope of criminal law and invalidate popular rationales for punishment that construe punishment as blame.

Do Offenders Deserve Proportionate Punishments?

“…When the offender has been treated unjustly, we might find a lenient punishment is called for simply because the community has lost the moral standing to punish her. For recent overviews of this debate, see Duus-Otterström & Kelly (2019) and Fritz (2019). I here want to speak only about the content of moral desert.…”