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Hsin-wen, Lee. Taking Deterrence Seriously: The Wide-Scope Deterrence Theory of Punishment
2017, Criminal Justice Ethics 36 (1):2-24.
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Added by: Clotilde Torregrossa, Contributed by: Hsin-Wen Lee

Abstract: A deterrence theory of punishment holds that the institution of criminal punishment is morally justified because it serves to deter crime. Because the fear of external sanction is an important incentive in crime deterrence, the deterrence theory is often associated with the idea of severe, disproportionate punishment. An objection to this theory holds that hope of escape renders even the severest punishment inapt and irrelevant.This article revisits the concept of deterrence and defend a more plausible deterrence theory of punishment – the wide-scope deterrence theory. The wide-scope theory holds that we must make the best use of all the deterrence tools available, including both external and internal sanctions. Drawing on insights from the early Confucian tradition, the article develops a deep deterrence theory, which holds that the most important deterrence tool involves internal, not external, sanction. It describes how internal sanctions deter potential offenses and why relevant policies need not conflict with liberalism’s respect for neutrality.

Comment: This text can be used in courses such as Philosophy of Law and/or Social and Political Philosophy.

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Nussbaum, Martha. Hiding from Humanity: Disgust, Shame, and the Law
2004, Princeton University Press.
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Back matter: “Should laws about sex and pornography be based on social conventions about what is disgusting? Should felons be required to display bumper stickers or wear T-shirts that announce their crimes? This powerful and elegantly written book, by one of America’s most influential philosophers, presents a critique of the role that shame and disgust play in our individual and social lives and, in particular, in the law.
Martha Nussbaum argues that we should be wary of these emotions because they are associated in troubling ways with a desire to hide from our humanity, embodying an unrealistic and sometimes pathological wish to be invulnerable. Nussbaum argues that the thought-content of disgust embodies “”magical ideas of contamination, and impossible aspirations to purity that are just not in line with human life as we know it.”” She argues that disgust should never be the basis for criminalizing an act, or play either the aggravating or the mitigating role in criminal law it currently does. She writes that we should be similarly suspicious of what she calls “”primitive shame,”” a shame “”at the very fact of human imperfection,”” and she is harshly critical of the role that such shame plays in certain punishments.
Drawing on an extraordinarily rich variety of philosophical, psychological, and historical references–from Aristotle and Freud to Nazi ideas about purity–and on legal examples as diverse as the trials of Oscar Wilde and the Martha Stewart insider trading case, this is a major work of legal and moral philosophy”.

Comment: Particularly useful for teaching on the non-rational motivators of moral reasoning and justifications of punishment, and on how emotions can be misleading and unreliable as a guide for law and ethics.

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