Corlett on Kant, Hegel, and Retribution

Philosophy 76(298) (2001): 561-80.

The purpose of this essay is to critically appraise J. Angelo Corlett's recent interpretation of Kant's theory of punishment as well as his rejection of Hegel's penology. In taking Kant to be a retributivist at a primary level and a proponent of deterrence at a secondary level, I believe Corlett has inappropriately wed together Kant's distinction between moral and positive law. Moreover, his support of Kant on these grounds is misguided as it is instead Hegel who holds such a distinction. Finally, I attempt to refute the almost timeless retributivist rejection of deterrence-based theories of punishment on the grounds that the latter somehow would condone in some cases the punishment of innocent persons. These individuals almost always demand that no innocent person be punished as a rule of the highest order.

In Search of Shiva: Mahadeviyakka's Virasaivism

Asian Philosophy 12(1) (2002): 21-34

Mahadeviyakka was a radical 12th century Karnataka saint of whom surprisingly little has been written. Considered the most poetic of the Virásaivas, her vacanas are characterized by their desperate searching for iva. I attempt to convey Mahadevi's epistemology and its struggle to 'know' Shiva, necessitating a lifetime of searching for him; offer an interpretation of the innate presence of Shiva in the world and its consequences for epistemology; and explore the sense of tragic love inherent in devotional searching for Shiva. My primary goal is to offer a powerful and positive, yet critical, interpretation of Mahadevi's beautiful prose on her relationship with Shiva.

A Defence of Sceptical Authoritarianism

Politics 22(3) (2002): 152-62

Vittorio Bufacchi argued in this journal that democracy was under threat from two extreme philosophical positions: totalitarianism and nihilism. Sandwiched between these polarities is liberal democracy. Bufacchi believes that one of liberal democracy's distinctive properties is an endorsement of scepticism, which he then attempts to illuminate. In contrast, this article will argue that an authoritarian government bound by a constitution permitting civil liberties might also adopt political scepticism. This removes the aforementioned distinctiveness of liberal democracy in this regard and, in addition, leads us toward a rethinking of the possibility of a more plausible consideration of democracy.

Cosmopolitanism and Distributing Responsibilities

Critical Review of International Social and Political Philosophy 5(3) (2002): 92-97

David Miller raises a number of interesting concerns with both weak and strong variants of cosmopolitanism. As an alternative, he defends a connection theory to address remedial responsibilities amongst states. This connection theory is problematic as it endorses a position where states that are causally and morally responsible for deprivation and suffering in other states may not be held remedially responsible for their actions. In addition, there is no international mechanism to ensure either that remedially responsible states offer assistance to particular states nor some level of accountability for causally and/or morally responsible states. I suggest that an intermediary theory of cosmopolitanism offers one way of overcoming these difficulties.

This piece appeared in a symposium with David Miller and Thomas Pogge on cosmopolitanism.

Does Philosophy Deserve a Place at the Supreme Court?

Rutgers Law Record 27(1) (2003): 1-35

This Comment demonstrates that policy judgements are not masked by philosophical references, nor do philosophers play any crucial role in contentious judicial decisions. Neomi Rao's study is flawed for many reasons: incomplete content analysis, poor assessment of data, and an inadequate definition of philosophy. She should be criticised for hypocritically praising Court philosopher references in some instances and not others, especially with regard to the Court's early development. This Comment searched unsuccessfully for an instance where philosophers were cited just once in controversial cases regarding racial integration, capital punishment's abolition and re-legality, and the 2000 Presidential election. Philosophers are peculiarly absent from major controversial cases.

Rao claims the Court;ss majority decisions avoided the "Philosophers’ Brief" because the philosophers’ argument was grounded in theory, not substantive legal argument surrounding issues of judicial precedent. This Comment challenges Rao’s use of 'philosophy' as something entirely abstract and steeped in metaphysics. Philosophy is presented as a large umbrella covering diverse sub-fields, two of which are philosophy of law and political philosophy. These sub-fields are of great use to law. Thus, the Court has not illegitimately used philosophers to support personal policy preferences. Nor is the use of philosophy incommensurable with judicial decision-making.

Kant's Theory of Punishment

Utilitas 15(2) (2003): 206-24

The most widespread interpretation amongst contemporary theorists of Kant's theory of punishment is that it is retributivist. On the contrary, I will argue there are very different senses in which Kant discusses punishment. He endorses retribution for moral law transgressions and consequentialist considerations for positive law violations. When these standpoints are taken into consideration, Kant's theory of punishment is more coherent and unified than previously thought. This reading uncovers a new problem in Kant's theory of punishment. By assuming a potential offender's intentional disposition as Kant does without knowing it for certain, we further exacerbate the opportunity for misdiagnosis – although the assumption of individual criminal culpability may be all we can reasonably be expected to use. While this difficulty is not lost on Kant, it continues to remain with us today, making Kant's theory of punishment far more relevant than previously thought.

T. H. Green's Theory of Punishment

History of Political Thought 24(4) (2003): 685-701

Green agrees with Kant on the abstract character of moral law as categorical imperatives and that intentional dispositions are central to a moral justification of punishment. The central problem with Kant's account is that we are unable to know these dispositions beyond a reasonable estimate. Green offers a practical alternative, positing moral law as an ideal to be achieved, but not immediately enforceable through positive law. Moral and positive law are bridged by Green's theory of the common good through the dialectic of morality. Thus, Green appears to offer an alternative that remains committed to Kantian morality whilst taking proper stock of our cognitive limitations. Unfortunately, Green fails to unravel fully Kant's dichotomy of moral and positive law that mirrors Green's solution, although Green offers a number of improvements, such as the importance of the community in establishing rights and linking the severity of punishment to the extent that a criminal act threatens the continued maintenance of a system of rights.

This piece is reprinted in John Morrow (ed.), T. H. Green. Aldershot: Ashgate, 2007.

Is Hegel a Retributivist?

Bulletin of the Hegel Society of Great Britain 49/50 (2004): 113-26

The most widespread interpretation of Hegel’s theory of punishment is that it is retributivist, as the criminal punished is demonstrated to be deserving of a punishment commensurable in value to the severity of his crime. Thus, Hegel’s theory is individualistic because the only factor involved in determining a punishment’s magnitude is the criminal’s action itself. The problem with this interpretation is that it is limited to Hegel’s preliminary discussion of punishment within his theory of abstract right. In this paper, I take seriously the structure of the Philosophy of Right to underscore the relationship between Hegel’s treatment of punishment in abstract right and his later treatment within his theory of civil society. This reading produces substantive new insights, presenting us with a theory which determines the severity of punishments commensurable with the threat a criminal act poses for civil society, committing itself to a minimal retributivism at most.

Winner of a prize from the Hegel Society of Great Britain.

Hegel's Theory of International Politics: Reply to Jaeger

Review of International Studies 30(1) (2004): 149-52

Hans-Martin Jaeger argues in this Journal that Hegel endorses a ‘reluctant realism’, whereby Hegel's theory of international politics institutionalises a transnationalising civil society of states. In Jaeger's view, Hegel's conception of individuals in civil society is analogous to states in international politics. On the contrary, I argue Hegel's conception of abstract right is far more commensurable with his theory of international politics. The mutual recognition existing in civil society – which helps to produce legal relationships – does not exist beyond the state where there are no legal relationships. Thus, Hegel is a realist of a more familiar sort, without any ‘reluctance’.

Retributivist Arguments against Capital Punishment

Journal of Social Philosophy 35(2) (2004): 188-97

This article offers a new argument for how retributivists can oppose capital punishment even where they hold that some criminals may deserve capital punishment as a proportionate punishment for their crimes.

The Right to Trial by Jury

Journal of Applied Philosophy 21(2) (2004): 197-212

Recently, the right to trial by jury has attracted a number of vociferous critics with deep reservations about the use of juries, most of whom are in favour of greatly restricting the
use of juries with a minority desiring complete abolition. This article offers a justification for the continued use of jury trials. I shall critically examine the ability of juries to render just
verdicts, judicial impartiality, and judicial transparency. My contention is that the judicial system that best satisfies these values is most preferable. Of course, these three values are not
the only factors relevant for consideration. Empirical evidence demonstrates that juries foster both democratic participation and public legitimation of legal decisions regarding the most
serious cases. Nevertheless, juries are costly and, therefore, economically less efficient than competing modes of trial. I do not argue that all human beings possess an inalienable legal
right to be tried by a jury. However, it is my hope that this analysis will make clear what we might gain or lose when we propose jury reforms.

This is reprinted in Thom Brooks (ed.), The Right a Fair Trial. Aldershot: Ashgate, 2009.

A Defence of Jury Nullification

Res Publica 10(4) (2004): 401-23

In both Great Britain and the United States there has been a growing debate about the modern acceptability of jury nullification. Properly understood, juries do not have any constitutional right to ignore the law, but they do have the power to do so nevertheless. Juries that nullify may be motivated by a variety of concerns: too harsh sentences, improper government action, racism, etc. In this article, I shall attempt to defend jury nullification on a number of grounds. First, I discuss the use of general verdicts and reject their replacement in criminal trials by special verdicts. Second, I examine verdicts based upon mistakes and racial prejudice, turning my attention to perverse verdicts and the question of whether or not juries are guilty of legislating when nullifying the law. Finally, I look at the problem of the awarding of excessive damages by juries. My goal will be to provide a sound theoretical defence of the practice of jury nullification.

This is reprinted in Thom Brooks (ed.), The Right to a Fair Trial. Aldershot: Ashgate, 2009.

Hegel's Ambiguous Contribution to Legal Theory

Res Publica 11(1) (2005): 85-94

Kantian Punishment and Retributivism: A Reply to Clark

Ratio 18(2) (2005): 237-45

Leta Thousand Nomoi Bloom? Four Problems with Robert Cover's Nomos and Narrative

Issues in Legal Scholarship (article five) (2006): 1-20

Robert Cover's well known article Nomos and Narrative is a passionately argued defense of a new way of applying narrative to the philosophy and understanding of law. In my article, I argue that there are four major problems which lie at the heart of Cover's analysis. Each problem addresses a major area of his overall view of law. I try to demonstrate that in each case, if the problem is real, Cover's view of law should be rejected. The primary difficulty is analytical and argumentative sloppiness in Cover's arguments. My conclusion is simple: Cover's view of law is both underdeveloped and theoretically unsafe. It falls victim to each of the four problems I identify. As a result, his philosophy of law should be rejected tout court.

Knowledge and Power in Plato's Political Thought

International Journal of Philosophical Studies 14(1) (2006): 51-77

Plato justifies the concentration and exercise of power for persons endowed with expertise in political governance. This article argues that this justification takes two distinctly different sets of arguments. The first is what I shall call his `ideal political philosophy' described primarily in the Republic as rule by philosopher-kings wielding absolute authority over their subjects. Their authority stems solely from their comprehension of justice, from which they make political judgements on behalf of their city-state. I call the second set of arguments Plato's `practical political philosophy' underlying his later thought, where absolute rule by philosopher-kings is undermined by the impure character of all political knowledge. Whereas the complete comprehension of justice sanctions the absolute political power of those with this expertise, partial knowledge of justice disallows for such a large investment of power. Plato's practical political philosophy argues for a mixed theory of governance fusing the institutions of monarchy with democracy in the best practical city-state. Thus, Plato comes to realize the insurmountable difficulties of his ideal political thought, preferring a more practical political philosophy instead.

Plato, Hegel, and Democracy

Bulletin of the Hegel Society of Great Britain 53/54 (2006): 24-50

Nearly every major philosophy, from Plato to Hegel and beyond, has argued that democracy is an inferior form of government, at best. Yet, virtually every contemporary political philosophy working today - whether in an analytic or postmodern tradition - endorses democracy in one variety or another. Should we conclude then that the traditional canon is meaningless for helping us theorize about a just state? In this paper, I will take up the criticisms and positive proposals of two such canonical figures in political philosophy: Plato and Hegel. At first glance, each is rather disdainful, if not outright hostile, to democracy. This is also how both have been represented traditionally. However, if we look behind the reasons for their rejection of (Athenian) democracy and the reasons behind their alternatives to democracy, I believe we can uncover a new theory of government that does two things. First, it maps onto the so-called Schumpeterian tradition of elite theories of democracy quite well. Second, perhaps surprisingly, it actually provides an improved justification for democratic government as we practice it today than rival theories of democracy. Thus, not only are Plato and Hegel not enemies of modern democratic thought after all, but each is actually quite useful for helping us develop democratic theory in a positive, not negative, manner.

No Rubber Stamp: Hegel's Constitutional Monarch

History of Political Thought 28(1) (2007): 91-119

Perhaps one of the most controversial aspects of Hegel's Philosophy of Right for contemporary interpreters is its discussion of the constitutional monarch. This is true despite the general agreement amongst virtually all interpreters that Hegel's monarch is no more powerful than modern constitutional monarchs and is an institution worthy of little attention or concern. In this article, I will examine whether or not it matters who is the monarch and what domestic and foreign powers he has. I argue against the virtual consensus of recent interpreters that Hegel's monarch is far more powerful than has been understood previously. In part, Hegel's monarch is perhaps even more powerful than Hegel himself may have realized and I will demonstrate certain inconsistencies with some of his claims. My reading represents a distinctive break from the virtual consensus, without endorsing the view that Hegel was a totalitarian.

Between Natural Law and Legal Positivism: Dworkin and Hegel on Legal Theory

Georgia State University Law Review 23(3) (2007): 513-60

In this article, I argue that - despite the absence of any clear influence of one theory on the other - the legal theories of Dworkin and Hegel share several similar and, at times, unique positions that join them together within a distinctive school of legal theory, sharing a middle position between natural law and legal positivism. In addition, each theory can help the other in addressing certain internal difficulties. By recognizing both Hegel and Dworkin as proponents of a position lying in between natural law and legal positivist jurisprudence, we can gain clarity in why their general legal theories seem to fit uncomfortably, if indeed they can be said to fit at all, within so many different camps - while fitting comfortably in no particular camp - as well as highlight what has been overlooked.

Punishing States That Cause Global Poverty

William Mitchell Law Review 33(2) (2007): 519-32

The problem of global poverty has reached terrifying proportions. Since the end of the Cold War, ordinary deaths from starvation and preventable diseases amount to approximately 250 million people, most of them children. Thomas Pogge argues that wealthy states have a responsibility to help those in severe poverty. This responsibility arises from the foreseeable and avoidable harm the current global institutional order has perpetrated on poor states. Pogge demands that wealthy states eradicate global poverty not merely because they have the resources, but because they share responsibility for its continuation. For Pogge, global poverty is more than a wrong imposed on the poor: it is a violation of human rights and a crime.

In this paper, I critically examine Pogge's claim that global poverty is a crime. My aim is to demonstrate that Pogge's conclusions do not follow from his arguments. That is, if affluent states have a negative duty to assist those in severe poverty, their duty is not absolute because they are not fully responsible for this poverty. Moreover, if global poverty is one of the greatest crimes against humanity, then it seems inappropriate at best to champion proposals, pace Pogge, that lets the guilty parties walk free.

Shame on Me, Shame on You? Nussbaum on Shame Punishment

Journal of Applied Philosophy 25(4) (2008): 322-34

Shame punishments have become an increasingly popular alternative to traditional punishments, often taking the form of convicted criminals holding signs or sweeping streets with a toothbrush. In her Hiding from Humanity, Martha Nussbaum argues against the use of shame punishments because they contribute to an offender's loss of dignity. However, these concerns are shared already by the courts which also have concerns about the possibility that shaming might damage an offender's dignity. This situation has not led the courts to reject all uses of shaming, but only to accept shaming within certain safeguards. Thus, despite Nussbaum's important reservations against shame punishments, it may still be possible for her to accept shaming within specific parameters such as those set out by the courts that protect the dignity of an offender. As a result, she need not be opposed to the use of legitimate shame punishment.

A Two-Tiered Reparations Theory: A Reply to Wenar

Journal of Social Philosophy 39(4) (2008): 666-69

In his recent article “Reparations for the Future” that appeared in this Journal, Leif Wenar argues for a theory of reparations that is forward-looking and not backward-looking.I will begin by presenting Wenar’s account. I will argue contra Wenar that backward-looking considerations play an important role in his
theory and that the existence of such considerations forms a necessary condition for his reparations theory. If I am correct, then it is not the case that forwardlooking considerations are the only or most relevant factors in justifying reparations for his account. Instead, Wenar defends a two-tiered reparations theory.

The Problem of Polygamy

Philosophical Topics (2009), forthcoming

Polygamy is a hotly contested practice and open to widespread misunderstandings. This practice is defined as a relationship between either one husband and multiple wives or one wife and multiple husbands. Today, 'polygamy' almost exclusively takes the form of one husband with multiple wives. In this article, my focus will centre on limited defences of polygamy offered recently by Chesire Calhoun and Martha Nussbaum. I will argue that these defences are unconvincing. The problem with polygamy is primarily that it is a structurally inegalitarian practice in both theory and fact. Polygamy should be opposed for this reason.

(The published version will be posted when it is out.)