Philosophy 514: Seminar in Legal Philosophy: Non-Ideal Theory and Punishment
Dr. Amelia M. Wirts
Thursdays, 4:30-6:20, SAV 408
Office Hours: Tuesday 10-12 or by appointment, SAV 381(email me for Zoom meeting)
This class will begin by introducing the main contemporary theories of punishment that explain why in a modern, liberal society, it is permissible and/or required that the state inflict hardships on those who have been duly convicted of committing crimes. These theories are most often presented as normative ideals for our criminal legal systems to aspire to, but these theorists rarely spell out what to do when the actual criminal legal systems are extremely far from these ideals. Is the state still justified in punishing when, as is true in the United States, there are vast racial and class-based disparities and a widespread consensus that there are too many people incarcerated? Should we also doubt the underlying definition of punishment as applied to people ‘duly convicted’ of crimes when approximately 95% of criminal convictions are the result of plea deals, not trials?
Throughout the quarter, we will explore a number of theories and their attempts at addressing these ‘non-ideal’ circumstances. As we reach the end of the quarter, we will focus more closely on philosophers who explicitly take on race, class, and gender injustice directly.
Please see the policies and resources page, including religious accommodations and disability accommodations and services for this class. These are the policies adopted by the University and Philosophy Department, and apply to all philosophy courses.
Leading Class Discussion Assignment:
Two times throughout the quarter, each student will provide a reading outline and lead class discussion for one assigned reading for that day. For the first several weeks, I will create a 2-3 page outline for each reading for class and lead the discussion. I will give specific parameters for outlines and class discussion, and the handouts I provide will work as examples. Students will sign up for which readings they would like to be discussion leader for at the second meeting.
Final Paper Proposal:
Week 8, I will ask you to turn in a 2 page assignment proposing a paper project. You will identify what question(s) you hope your paper answers and a tentative thesis. You are not bound by the paper proposal, but the more work you put into it, the better feedback you will get from me.
The final paper for this course should be approximately 5000 words (~20 pages double spaced), give or take 500 words. Thinking of papers in terms of word count instead of number of pages is better preparation for submitting to conferences and journals. The paper should engage meaningfully with some concepts and arguments from class, but you should advance a specific, original argument throughout the paper. It should cite to relevant texts from class. We will discuss this in more detail in class. You should also meet with me at least one time to discuss your paper before you turn it in.
We will be reading sections from the following books, which is why I have them listed as "required" at the book store. If you are interested in this topic long term, I would recommend getting copies of these books, but I will also make all readings available to you in one form or another if you do not want to purchase the books on your own. Do not let the cost of the books deter you from taking the class!
Dark Ghettos by Tommie Shelby
(We will read only 1 chapter from this book, and it is the least relevant to this class. I would only recommend purchasing it if you are independently interested in political philosophy or philosophy of race)
The Limits of Blame by Erin Kelly
(We will read this whole book.)
Criminal Law in the Age of the Administrative State, Vincent Chiao (A PDF of each chapter is available under "Course Files/Readings/Chiao)
(This book is really excellent, and I highly recommend it for anyone interested in phil crim/punishment. We will read most of it).
We will also be reading some individual chapters and articles from other authors.
The class will meet once a week and will be a structured seminar. Students will take turns leading the discussion each week and making a handout with an outline of the argument(s) from the reading and proposing discussion questions.
How to Use Canvas for this Course
This syllabus pages includes the links to the readings and the overall course material. I will post grades on canvas, and you can find more details about assignments in the relevant assignment section as each due date approaches.
I use weekly pages to organize the bulk of the class. Each week has a page with the readings and any reading notes that I think will be helpful. I will also put relevant handouts, links, or other materials related to class on these pages. You can find them either by following the links on this page in the reading schedule below, or by going to the "pages" tab on the left hand toolbar.
Tentative Reading Schedule
(This list of readings is meant to give you a good general idea of what we will be covering this term. I may make slight alterations, including changing the order of texts or adding or removing a few readings, up to the first day of class.)
All readings can be found as PDFs or links. PDFs are saved in the Readings Folder, and they are linked to in the weekly Pages and throughout the syllabus.
Week 1 (September 30): Introduction to Theories of Punishment
- Stanford Encyclopedia of Philosophy, (SEP): “Legal Punishment”
- Introduction to Matthew Altman’s A Theory of Legal Punishment: Deterrence, Retribution and the Aims of the State.
Optional: Joel Feinberg’s classic and short “Classic Debate”—mainly the same info as the texts above. I used to teach this but I think Altman is more thorough. This is a classic essay, however.
Week 2 (October 7): Public Law Approach 1
Week 3 (October 14): Public Law Approach 2
Week 4 (October 21): Just Harm Reduction 1
- Erin Kelly’s The Limits of Blame: Rethinking Punishment and Responsibility
- Introduction, Chapters 1-3
Week 5 (October 28): Just Harm Reduction 2
- Erin Kelly’s The Limits of Blame: Rethinking Punishment and Responsibility
- Chapters 4-6, Conclusion
Week 6 (November 4): Communicative Theories of Punishment
- "Towards a Theory of Criminal Law?" by RA Duff
- “Blame, Legitimacy, and the Legitimacy of the Criminal trial” by R.A. Duff
- “Race, Ideology, and the Communicative Theory of Punishment,” Steven Shwartzer
Optional: Classic piece on penal expressivism: “The Expressive Functions of Punishment,” Joel Feinberg (short)
Duff's book length treatment of his theory of punishment. For this class, a look at his last chapter "From Theory to Practice" will be of interest for the ideal and non-ideal theory angle.
Week 7 (November 11): No Class, Veteran’s Day
Work on paper proposal (due Week 8)
Recommended: we will not discuss this until December 9, but I highly recommend reading Tommie Shelby, “Punishment” Dark Ghettos: Injustice, Dissent, and Reform this week. He responds directly to many of the pieces we will read in the next couple of weeks, and it is worth reading his chapter more than once)
Week 8 (November 18): Criminal Law and Gender-Based Crimes
- Jean Hampton, “Punishment, Feminism, and Political Identity: A Case Study in the Expressive Meaning of the Law”
- Gotell, Lise. “Reassessing the Place of Criminal Law Reform in the Struggle Against Sexual Violence: A Critique of the Critique of Carceral Feminism”
- Taylor, Chloë. “Anti-Carceral Feminism and Sexual Assault—A Defense: A Critique of the Critique of the Critique of Carceral Feminism."
- Terwiel, Anna. "What Is Carceral Feminism?" (this is a critique of Taylor)
Week 9 (November 25): NO CLASS, Thanksgiving
Week 10 (December 2): Social Contract/Benefits-And-Burdens Non-Ideal Theory
- Jeffrey Reiman, “The Moral Ambivalence of Crime in an Unjust Society”
- Victor Tadros, “Poverty and Criminal Responsibility”
Week 10.5 (December 9): Race/Class and Punishment
- Tommie Shelby, “Punishment” Dark Ghettos: Injustice, Dissent, and Reform
Philosophers have been offering justifications for state-based punishment since at least Aquinas. Kant famously favors the death penalty for many crimes, and Jeremy Bentham had some really creative solutions for how to punish people in a humane way. Few of those philosophers considered whether the state could lose its right to punish people for breaking the law if the state itself was failing to live up to principles of justice. As philosophers, how can we interrogate our traditional justifications of punishment, and indeed of criminal law at all, given the social circumstances of the 21st century in the United States If there are widespread injustices in the basic structure of society, does the state have the moral standing to punish wrongdoers? If the criminal law institutions are also unjust, can they legitimately punish, or are they just using brute force?
In such circumstances, who, if anyone, is still morally obligated to follow criminal laws? What if you are a member of a racial or class group that has been harmed by the state? Do you have the same obligations to follow the laws as someone who is benefitting from the unjust circumstances?
As we are looking at how criminal law and punishment can go very wrong, we will also think about what criminal looks like when it is functioning well.