Here I set the stage for developing a Kantian account of punishment attuned to social and economic injustice and to the need for prison reform. I argue that we cannot appreciate Kant's own discussion of punishment unless we read it in light of the theory of justice of which it is a part and the fundamental commitments of that theory to freedom, autonomy and equality. As important, we cannot properly evaluate Kant's advocacy of the law of retribution unless we recognize his theory of justice as an ideal theory. Once we understand both Kant's larger account of justice and its relationship to his less basic commitments, we discover grounds to accept that larger theory, but reject components like the law of retribution with their basis in empirical conclusions we may not share with Kant. We also open the way to develop an account of punishment responsive to social circumstances.

This paper examines the commonplace assertion that utilitarianism allows for and even, at times, requires the punishment of the innocent. It traces the origins of this doctrine to the writings of the British Idealists and the subsequent development of what is called the post-utilitarian paradigm which posits various justifications for punishment such as retribution, deterrence and reform, finds all of them inadequate, and then, with the addition of other ideas, reconciles them. The idea of deterrence is falsely depicted as the utilitarian contribution to the theory of punishment, while deterrence in fact is one of several elements in the utilitarian theory. The mistake comes from ignoring the pain-pleasure dimension of Benthamite utilitarianism and from regarding the principle of utility itself as the sole criterion of action in a ‘top-down’ fashion.

Nietzsche's thinking on justice and punishment explores the motives and forces which lie behind moral concepts and social institutions. His dialogue with several writers of his time is discussed here. Eugen Dühring had argued that a natural feeling of ressentiment against those who have harmed us is the source of the concept of injustice, so that punishment, even in its most impersonal form, is always a form of revenge. In attacking this theory, Nietzsche developed his own powerful critique of moral concepts such as responsibility and guilt. He borrowed his ‘historical’ approach to moral concepts from Paul Ree, who suggested that the utilitarian function of punishment had been obscured by its practice, which appears to be directly linked with moral guilt. Nietzsche responds that punishment has quite different purposes and meanings at different times, so that any single explanation or justification is inadequate. In this way, he rejects the pre-suppositions common to the retributivists and utilitarians of his time.

Suppose we embrace the republican ideal of freedom as non-domination: freedom as immunity to arbitrary interference. In that case those acts that call uncontroversially for criminalization will usually be objectionable on three grounds: the offender assumes a dominating position in relation to the victim, the offender reduces the range or ease of undominated choice on the part of the victim, and the offender raises a spectre of domination for others like the victim. And in that case, so it appears, the obvious role for punishment will be, so far as possible, to undo such evils: to rectify the effects of the crime that make it a repugnant republican act. This paper explores this theory of punishment as rectification, contrasting it with better established utilitarian and retributivist approaches.

What I call the Just Distribution theory of punishment holds that the justification of punishment is that it rectifies the social distribution of benefits and burdens which has been upset by the offender. I argue that a recent version of this theory is no more viable than earlier versions. Like them, it fails in its avowed intention to deliver fundamental intuitions about crime and punishment. The root problem is its foundation in Hart's Principle of Fair Play, a foundation which, I argue, is inappropriate for a theory of punishment.

Restorative justice should have greater weight as a criterion in criminal justice sentencing practice. It permits a realistic recognition of the kinds of harm and damage caused by offences, and encourages individualized non-custodial sentencing options as ways of addressing these harms. Non-custodial sentences have proven more effective than incarceration in securing social reconciliation and preventing recidivism, and they avoid the serious social and personal costs of imprisonment. This paper argues in support of restorative justice as a guiding idea in sentencing. As part of this defence, it considers whether the use of the idea of restorative justice will conflate criminal law with civil law or displace the authority of the criminal courts, and whether the sentences it recommends are best thought of as punishments or alternatives to punishment.

This article criticizes the standard way philosophers pose issues about the core practices of criminal justice institutions. Attempting to get at some of the presuppositions of posing these issues in terms of punishment, I construct a revised version of Rawls's ‘telishment’ case, a revision based on actual features of contemporary criminal justice practices in the USA. In addressing the implications of ‘racialment’, as I call it, some connections are made to current philosophical discussions about race. I conclude with brief remarks about the importance of race to philosophical discussion as such.

The paper examines one objection to the suggestion that, rather than being subjected to extended prison sentences on the one hand, or simply released on the other, dangerous offenders should be in principle liable to some form of civil detention on completion of their normal sentences. This objection raises the spectre of a ‘social harm reduction system’, pursuing various reductivist means outside the criminal justice system. The objection also threatens to undermine dualist theories of punishment, theories which combine reductivist and retributivist considerations. The paper attempts to refute the objection by holding that a wedge can be driven between incapacitation and other reductivist measures, and hints at a possibly new version of dualism in the process.