published_or_final_version / Philosophy / Master / Master of Philosophy

One of the purposes of this thesis is to try to examine the concepts of mental sickness and responsibility (and some other related concepts) and see whether or not they can be defended against some of the criticisms that have been made against them. It has, for instance, been argued that the concept mental sickness is culture relative in a bad sense. If this criticism is valid, then we cannot be justified in saying that mental sickness has impaired a person's responsibility. Another criticism that has been made is that arguments that use mental sickness to explain and excuse criminal behaviour are circular. Most of the criticisms that I have discussed are intended to be general, i.e. they are criticisms of the concept of mental disorder im general, not just of a particular kind of mental disorder. Thus though Lady Wootton says that arguments that try to explain the psychopath's anti-social behaviour are circular, she thinks (at least in her more radical moments) that the circular process prevails in other mental disorders as well (e.g. with mental defectives. See <u>Social Science and Social Pathology</u>, page 256 ff.). Similarly, the argument that different standards of mental defect prevail in different cultures, and that therefore there is something wrong with the concept of mental defect, is intended to be (at least in her more radical moments) a general one, i.e. it is intended to apply, <u>mutatis mutandis</u> against other kinds of mental disorders also.

Can punishment, a practice which involves the deliberate infliction of suffering, be justified? Retributivists and consequentialists argue that punishment can be justified, whereas abolitionists argue that it cannot. Retributivists argue that punishment is justified because wrongdoers deserve it, whereas punishment is justified for consequentialists because it is beneficial for society. A popular form of abolitionism is restorative justice, which is the view that all those affected by crime (perpetrators, victims and members of society) should be reconciled. In this thesis I argue that retributivist justifications for punishment are mistaken, and argue in favour of a consequentialist view. I also argue that consequentialism can accommodate the valuable features of restorative justice while avoiding the challenges faced by it. My arguments against retributivism will turn on a thought experiment. The experiment is designed to draw out the fundamental retributivist intuition that people who cause harm deserve to suffer harm in return, yet excludes most of the principles retributivists would use to justify the intuition. I will go on to argue that, even if the retributivist considerations did apply to the experiment, they would still not justify the claim that wrongdoers deserve to be punished. Most of the retributivist considerations are, therefore, not necessary for the intuition, and none of the considerations are sufficient for it. The retributivist considerations are, I contend, rationalisations, as the claim that wrongdoers deserve to suffer is based, not on good reasons, but on an unreliable intuition. I shall argue that the consequentialist considerations, while not being necessary, are sufficient for the claim that wrongdoers should be punished, and they should be punished, I maintain, in the interests of preventing greater harm from occurring.

Remorse can be a powerful source of mitigation at sentencing. However, there is a lack of formal justification for this practice and a paucity of theoretical literature engaging with this issue. Addressing this gap, this thesis offers a comprehensive justification for why an offender’s remorse should mitigate the punishment he receives. It begins by discussing the emotion of remorse – its nature and value. With reference to broadly-retributive theories of punishment, it then considers various arguments that could be offered to justify the mitigating effect of remorse on the offender’s sentence. It rejects two arguments: either remorse constitutes some of the offender’s deserved punishment or remorse reduces the seriousness of the offence. Instead, it develops a justification inspired by philosophical work distinguishing blameworthiness and blaming. The thesis argues that, in the context of sentencing, a broadly-conceived dialogical model of censure is the most legitimate. Remorse, as the offender’s ideal input into the dialogue about the offence, modifies the subsequent censure required. If censure seeks a response, and this response is already forthcoming, to nonetheless continue to seek this response as if it were absent devalues the censure. Von Hirsch and Ashworth’s assertions that censure appeals to the offender as a rational moral agent, and their adherence to certain quasiretributive values, are shown to provide further support for these arguments. If the deserved censure is mitigated, then so is the corresponding punishment communicating this censure. The thesis next explores how this justification for mitigation compares with ‘mercy’ justifications, arguing that the justification offered in this thesis operates more internally to deserved censure, and is more principled, so is preferable on these grounds. In conclusion, the thesis considers the implications of its arguments for sentencing practice and whether it is a concern that they are valid only within ‘censure’ theories of punishment.

Neither currently prevalent justifications of punishment, nor a modified, contractarian version of a justification that I develop here, can be used to justify actual state punishment, even if some forms of punishment may remain legitimate. I argue in this thesis that alternative punitive practices such as developed by some Canadian aboriginal communities are more likely to conform to the criteria of punitive justice developed by standard justifications, as well as being more likely to conform to criteria developed in feminist ethics.

M.A. (Philosophy) / Usually when we think of law, we think of rationality and outcomes that are not swayed by emotion. Modern Western society tends to think of emotion and rationality as incompatible. It is a widely-held belief that it is more morally desirable for people to make ‘rational’ decisions rather than ‘emotional’ decisions in life in general. Perhaps in no other area is this distinction between the two more pronounced as in criminal law, where judges who society considers to be making ‘rational’ judicial decisions are revered, and those who society at large considers to be making ‘emotional’ judicial decisions are distrusted. As Terry Maroney (2006: 120) says, “[a] core presumption underlying modern legality is that reason and emotion are different beasts entirely…the sphere of law admits only of reason; and vigilant policing is required to keep emotion from creeping in where it does not belong”. In this dissertation, I propose to look at the virtue of mercy, where mercy is understood to have a significant emotional component, and to answer the question: Should a judge in a criminal trial employ mercy? If so, under what conditions? The importance of the question of whether a judge should employ mercy in a criminal case is that it addresses one part of the larger enquiry into how the state should respond to offenders. As moral beings, our emotional responses to criminals and their crimes are varied. Sometimes we feel anger, at other times disgust, and at other times mercy, grief and sadness.

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M.A. / “A philosophy untouched by the shadows on the wall can only yield a sterile utopia” (Sandel, 2009: p.29). Plato’s prisoners in the cave allegory were to forfeit the shadows against the cave wall and therefore their physical world if they were eventually to reach pure knowledge. It is arguable that the same thought has been prevalent in Western philosophy in that as philosophers we have sought to get on our metaphoric high horses and try to tell the rest of the world how best to live their lives, believe, think about concepts, etc. Philosophy has therefore always strived for the ideal state, ethical system or perfect theory that will make our existence so much more orderly, logical or neat. Such utopia usually comes at a price, as we would most likely have to renounce or dampen what I believe can be held as innately human tendencies such as our sexual wants, progressing and stamping our dominance through war, violence and the need for revenge. Wanting to have, to dominate others and to get even with those who harmed you is usually seen as base or even barbaric, but they nonetheless continue to be part of our human make up. If giving up such traits would help us achieve a utopia, this utopia would not only be sterile due to it suppressing some of our most basic traits, but it would also be flawed. Suppressing such traits does not mean that they do not exist or have been done away with - they may surface at any time to cause disharmony in the “ideal” state, which would logically entail that instead of trying to do away with such traits, a way should rather be found to accommodate them.

This thesis examines the concept of civil disobedience, and the role the latter can play in a democratic society. It aims to offer a moral justification for civil disobedience that departs from consequentialist or deontological considerations, and focuses instead on virtue ethics. By drawing attention to the notion of civic virtues, the thesis suggests that, under some circumstances, an act of civil disobedience is the very act displaying a virtuous disposition in the citizen who disobeys. Such disposition is interpreted in light of a duty each individual has to respect her fellow citizens as autonomous agents. This grounds, in turn, a moral obligation to respect the law. The central claim of the thesis is that the obligation towards the law is fulfilled not only through acts of obedience but also, under different circumstances, through acts of disobedience. The status of non-violence as a necessary component of civil disobedience is questioned, and it is argued that a degree of force or violence may be permissible in civil disobedience, when it is compatible with the duty to respect others’ autonomy. Subsequently, the thesis offers an analysis of ‘reasonableness’ as a civic virtue, and by comparing three different approaches to the issue of reasonable disagreement among democratic citizens, it defends the deliberative approach as the most suited for treating fellow citizens as autonomous agents. The last two chapters focus on the importance, for an act of civil disobedience, of the agent’s willingness to accept the legal consequences of her law-breaking behaviour. It is argued that a civil disobedient has an obligation to face the prospect of being punished for the breach of the law. However, in considering the behaviour of a virtuous civil disobedient who appears at her criminal trial, it is also claimed that she should plead not guilty and aim to persuade her fellow citizens that she does not deserve to be punished, because what she did does not constitute a criminal wrong. In doing so, this thesis depicts civil disobedience not as a merely permissible form of behaviour, but as a morally praiseworthy conduct within a democratic community.

Submitted by Filipe dos Santos (fsantos@pucsp.br) on 2018-04-06T12:54:32Z No. of bitstreams: 1 Ândrea Cristina Pimentel Palazzolo.pdf: 470628 bytes, checksum: e3c10b51d4a52478b015535a5c69efa2 (MD5) / Made available in DSpace on 2018-04-06T12:54:33Z (GMT). No. of bitstreams: 1 Ândrea Cristina Pimentel Palazzolo.pdf: 470628 bytes, checksum: e3c10b51d4a52478b015535a5c69efa2 (MD5) Previous issue date: 2018-03-06 / The present study consists of a theoretical exercise, of a bibliographic character, destined to compose a master's thesis in Philosophy. The theme chosen is intended to accompany the reflections of Michel Foucault (1926-1984) on the so-called "kidnapping institutions". The way forward is to follow the footsteps of Michel Foucault's trajectory from his broader scope (the general panorama of his thinking) to the particular theme of "kidnapping institutions", especially through the moment of that trajectory in which they appear explicitly. To achieve such a purpose, there is an introduction about the intellectual path of the philosopher in (his) three moments, followed by the discipline and its generalization. Then, the study focuses the appearance of a disciplinary society, researching the "kidnapping institutions" in Modernity, in order to answer the question: after all, what is the very first function of "kidnapping institutions"? / O presente estudo consiste em um exercício teórico, de caráter bibliográfico, destinado a compor uma dissertação de mestrado em Filosofia. O tema escolhido tem o intuito de acompanhar as reflexões de Michel Foucault ( 1926-1984) sobre as assim chamadas “instituições de sequestro”. O caminho percorrido busca seguir os passos da trajetória de Michel Foucault desde seu âmbito maior ( o panorama geral do seu pensamento) até o tema particular das “ instituições de sequestro” , passando, especialmente pelo momento daquela trajetória na qual elas aparecem de modo explícito. Para tanto há uma introdução sobre a trajetória intelectual do filósofo em seus três momentos. Trata-se, em seguida, da disciplina e sua generalização. Na sequência, o estudo explicita o surgimento da sociedade disciplinar, para, então, investigar as “instituições de sequestro”, na Modernidade, e responder à pergunta: afinal, qual é a função precípua das “instituições de sequestro” ?