2. Morality and the retributive emotions

In an era of disenchantment characterised by self-interest and the domination of private interests in public life, this collection makes an unashamedly idealistic appeal to the altruistic noble emotions. Essentially Murphy is advocating a role for moral emotions in the making of reasoned empathic judgments within the context of what is argued to be an overwhelmingly commercial and objectifying criminal justice system. In doing so, his project resonates with the philosophies of David Hume, Jean-Jacques Rousseau and Adam Smith, for whom moral sentiment, in particular empathy, necessarily underpinned all moral judgment. In his 1759 The Theory of Moral Sentiments, Smith argued that it is in the nature of individuals to follow a particular emotion-laden procedure for making moral judgments and this process was natural for any law-giver; it was even considered to be the fundamental starting point for formulating ethical principles pertaining to justice, equality, impartiality and rights (Reference Smith and Haakonssen2002 [1759]). Murphy talks about Immanuel Kant's concept of ‘moral death’ as an absence of ‘moral feeling’, which signals a lack of moral character or virtue within us, making moral behaviour and judgment impossible (pp. 132–133). From this premise, judgments relating to right and wrong, just and unjust, are determined to be as much a property of feeling as of intellectual understanding or reason, and for this reason the moral emotions are treated as a causal, rather than a capricious, influence.

Whilst a decision to penalise or condemn is ideally influenced by noble emotions underpinned by the rhetoric of justice and a concern for the common good, Murphy also considers how somewhat base emotions such as malice, spite and cruelty may drive or distort our response to criminals and wrongdoers. On several occasions he cites Nietzsche's cautionary counsel ‘mistrust all in whom the impulse to punish is powerful’, suggesting this compulsion is driven by the irrational passions of ressentiment and is incapable of moral justification (p. 22). Personal nature or disposition is emphasised as an important factor in moral judgment due to the ‘enormous subterranean reservoirs of terrifying cruelty’ within the human personality. We are warned against an ‘overly confident retributive outlook on crime and punishment’ which rests on judgments about deep character; as such evaluations go beyond the attribution of intention and other mens rea mental states towards succumbing to the morally dangerous ground of unjust deserts (p. 89). Describing himself as a ‘reluctant retributivist’, in Chapter 9, ‘Response to Neu, Zipursky and Steiker’, Murphy defends the classic retributive idea of punishment on the basis that it is a critical part of our emotional nature, and emphasises the ‘moral core of retributivism’ as respect for the dignity of human beings as autonomous and responsible agents. In this case, punishment should always be proportionate to the moral gravity of the crime and the culpability of the criminal. He argues that the irrationality and malaise at the heart of our current punitive practices results from a failure to comply with this retributive norm.

Murphy criticises the robust version of character retributivism proffered by Michael Moore, which justifies the state taking on the punitive task that older traditions reserved for God, in deciding who and which traits must be punished; ‘otherwise the task of apportioning punishment to evil would be left undone and that would be morally intolerable’ (p. 29). Unlike grievance retributivism, which attaches the crime to the punishment, character retributivism matches the punishment to what Kant referred to as the ‘inner viciousness’ of the perpetrator, and this constitutes ‘presuming to judge what no human being should presume to judge’ due to man's own ‘moral guilt’ or imperfection which connects us to others (pp. 30, 97). In other words, if self-awareness and a shared sense of responsibility are missing, there is no guarantee against judgments founded on ‘retributive hatred’, personal malice or an irrational Nietzschean urge towards sadism or cruelty. As Murphy elucidates, those in favour of character retributivism argue that it inclines towards a lenient judgment for the remorseful criminal, but not only is there a difficulty in distinguishing genuine repentance from fake, this proportional approach may equally lend itself to counting judgments of bad character. He offers examples from death penalty and American murder cases where the terms ‘cruel, heinous and depraved’ or ‘hardened, abandoned and malignant heart’ have been applied to the accused's character in justifying the application of a harsher sentence (pp. 159–163).

3. Lex talionis, ressentiment and the criminal justice system

The retributivist idea of a morally permissible deserved punishment, or ‘just deserts’, is at the same time both a retrospective and interpretative concept. Being motivated by vengeful emotions, those who are inclined to rationalise the excessive punishment impulse also tend to view criminals as monsters, vermin, members of a different species – importantly, less than human. At the same time, the capacity of such individuals for introspection is often limited due to a type of self-righteousness which gives rise to an unforgiving nature and a propensity to demand draconian punishments (p. 32). The modern American resource-starved penal system is used by Murphy as an example of this predisposition because of its attitude towards criminal punishment, prison conditions and the unduly harsh treatment of those accused of criminal acts. As well as too many incidences of ‘over-criminalisation’ and ‘often absurdly excessive punishments’ in the penal environment, he points out that white-collar criminals tend to be punished with excessive leniency whilst others are punished for actions that should never have been criminalised in the first place or, at best, ought to be treated as less serious offences (p. 226). There are reports of the occasional use of cattle prods to herd prisoners, along with, for example, the attempt to establish a form of legally unreviewable detention at the extra-territorial location of Guantánamo Bay Naval Base and its recent use of torture and harsh interrogation.

The ‘conditions of terror, assault and rape are common to the pest holes of many American jails and prisons’, and this conflicts with the basic human rights accorded to all human beings (pp. 29, 86). In spite of the Eighth Amendment banning ‘cruel and unusual punishments’, the prison system is characterised by the extraction of labour and social ostracisation of an outcast group in common with slavery (p. 207). Whilst the Thirteenth Amendment of the US Constitution abolished slavery, this was not universal or unconditional; rather an exception is made for the treatment of prisoners: ‘Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, nor any place subject to their jurisdiction’ (emphasis added). The paradoxical reality of human rights abuses committed alongside a rhetorical commitment to human rights protections comprises one of the most disturbing dimensions of post-9/11 politics. Murphy cites Nietzsche's caution that ‘we use the rhetoric of justice and the common good in order to hide from ourselves the fact that our actual motives are instances of ressentiment – spite, malice, envy and cruelty’ (p. 60). The social construction of the ‘war on terror’, for example, portrayed as a war carried out on behalf of civilisation, denies that the values of the former are present in the other:

Of course, the gap between rhetoric and practice applies to other countries and not only the US, since all legal systems have to manage the burden of their own history, which may have been inconsistent with a history of respect for human dignity. The treatment of criminals, however, has been advocated as a good barometer of a civilised society: as Fyodor Dostoevsky said in his 1862 novel The House of the Dead, ‘the degree of civilisation in society can be judged by entering its prisons’, whether for punishment or as punishment. This is because the meaning of criminal punishment and forms of condemnatory expression are derived from the values of the community. Murphy cites Judge Richard Posner in Johnson v. Phelan 1995 [69 F.3d 144] (7th Cir) in his support of a realistic conception of the prison population which does ‘not exaggerate the distance between us [and them] for such exaggeration will make it too easy for us to deny that population the rudiments of humane consideration’ (p. 84). Since prison conditions are described as ‘unspeakable’ and ‘could easily be regarded by some as a fate worse than death’, it is somewhat disturbing that the incarceration rates in the US are the world's highest, at 724 people per 100,000 (pp. 176, 177). As a convenient answer to inconvenient questions, the punishment industry of mass incarceration provides the US with a source of employment, a means of treating addiction and mental illness, an economic ameliorative, and has been described as a useful form of social control, particularly in what Wacquant terms ‘the carceral management of poverty’:

4. The politics of the US penal system and the colour of justice

The US prison population is overwhelmingly poor and disproportionately Black; this racial disparity is evident at every stage of the criminal justice system, from arrest to trial to sentencing. Ascriptive characteristics such as race, ethnicity, religion and social class are often associated with typical behaviour or attributes which can be used to stigmatise and exclude someone from being treated as a member of society, and disqualify him from an entitlement to basic justice. Just as the colour of justice was a catalyst for activism in the early days of the civil rights movement in the American South – where White officials and juries applied a parallel set of rules to impose harsher penalties for Black people – the ‘abuse of discretion in the direction of harshness and cruelty is not a mere relic from the past’ (pp. 228–229).

At some level, the process of developing a classification of criminality entails either tacitly encouraging or at least failing to reject certain negative cultural stereotypes insofar as they consistently maintain the status quo, which ultimately has advantages for the stereotyper in privileging and perpetuating dominant cultural practices and institutions. The construction of sociocultural stereotypes, particularly ‘the dangerous classes’, may be implicit or triggered automatically and contrary to our consciously espoused beliefs and values: this does not render them any less harmful. Historical racial bias, stereotypical media depictions of African-Americans, and the FBI's endorsement of static ethnocentric criminal profiling have all contributed to the overrepresentation of this group within the US prison population. The creation of moral panic and the exaggeration of risk are unhelpful, and Murphy suggests ‘our legislatures and public officials must be less inclined to exploit the fears of citizens’ (p. 228).

Today a disproportionate number of African-American and Latino males continue to be incarcerated, with longer sentences being imposed for non-violent drug offences, leaving an increasing number of children effectively orphaned by the criminal justice system. The compulsory resettlement of criminalised Black youth and adults may be said to comprise a double diaspora, in that they are held captive away from their families and communities at the same time as identifying with their ancestral homelands in prison, as this represents their scattered existence. Being isolated from familiar contexts and forced to ‘work on chain gangs or wear pink underwear’ are described by Murphy as ‘mainly coercive exercises in humiliation and degradation’ (p. 106). He reasons that a legitimate civil society is characterised by legitimate punishment, and refers to the Kantian ‘state of nature’ in which people may feel excluded from civil society if familiar social conventions point one way and law points another:

With absolute freedom which imposes no external restrictions on human behaviour, autonomy is impossible. The only escape from this type of lawless freedom conferred by the ‘state of nature’ for Kant, in his 1795 essay Perpetual Peace: A Philosophical Sketch, is by the enactment of a republican constitution which upholds the principles of freedom for all members of society as equal, and founded on a consensus as to the content of a single common legislation. In other words, only constrained freedom is capable of granting autonomy, limited by a shared moral duty to submit to laws determined by the common will, which accord equal rights and protections in relation to everyone's realm of possible actions. This means the rules of criminal punishment must tie to certain values, particularly ‘the value of human beings – their rights and their welfare – and the relationships among human beings’: otherwise they will be counterproductive (p. 105). We are reminded of Kant's injunction, paraphrased by Murphy, that ‘all punishments even those directed at the worst criminals, must be kept free of any maltreatment that would degrade the humanity of the criminal or those administering the punishment’ (p. 87). Murphy further points out that cruel punishments do not build on the ‘moral self’: rather they ‘simply add extra punitive burdens and inconveniences (some of them quite grotesque) to the criminal's post-conviction life’ (p. 107).

Like Aristotle, David Hume and Adam Smith, rather than focus on thoughts and actions Jeffrie Murphy deliberates on the emotions that motivate our thoughts and galvanise us into action, viewing them as a proper object of critical inquiry. In considering whether there can be an honourable emotional basis for moral punishment specifically and justice in general, he suggests that a sense of ‘justice (properly understood) may be entailed by love (properly understood) … and [quoting Lord Denning in The Influence of Religion on Law] that justice is the primary form of love in social organisation’ (p. 44). Through the eyes of neighbourly loving concern, we are all vicariously liable for laws of exclusion which produce and entrench marginality – those rules which oppose the ideals of noble values such as generosity, kindness, hospitality, empathy and love – so we bear joint responsibility for the consequences of not speaking out.

This brings to mind the famous poetic statement, often misquoted, attributed to Nazi resister Pastor Martin Niemöller: ‘First [the Nazis] came for the Communists, but I was not a Communist – so I said nothing. Then they came for the Social Democrats, but I was not a Social Democrat – so I did nothing. Then they came for the trade unionists, but I was not a trade unionist. And then they came for the Jews, but I was not a Jew, so I did little.’ This famous reproach of the German intellectuals for their apathy and inactivity in the face of a divide and rule regime of oppression concludes: ‘then they came for me, and there was no one left to stand up for me.’ For Murphy, such callous indifference to the suffering of others whom we regard as outsiders deserves a place next to hatred (pp. 58–59). It is not enough to cower behind legal rules and look the claimants in the eye whilst endorsing, along with the judge, a harsh judgment simply because it has been sanctioned by Parliament. Although Murphy does not subscribe to any particular grand theory, he wishes to ‘advance the conversation’ in connection with the moral obligation incumbent on each person to show mutual solidarity in promoting a sense of public justice. This is to be founded on legal rules which must be reconciled with private justice as the exercise of imagination and empathy, in line with a Kantian indirect duty to cultivate innate feelings of compassion. Quoting from Kant's Doctrine of Virtue, we are admonished to:

For Murphy, the US criminal justice system is in need of a radical overhaul and stands accused of being ‘a moral and administrative mess – a great bloated monster driven by competing and often inconsistent values, and sometimes by no values at all but simply by cruelty or indifference or institutional inertia’ (p. 174). Although judicial activism by the US appellate courts has traditionally been considered the most effective way of bringing about enlightened criminal justice, the recent reluctance of the Supreme Court to apply the Eighth Amendment prohibition on cruel and unusual punishment to prison conditions means it is now pertinent for philosophers of punishment to consider what Jeremy Waldron (Reference Waldron1999) calls ‘the dignity of legislation’, which focuses on the role of the legislature in their capacity for undertaking a programme of statutory reform (p. 230).

5. The communicative function of just punishment and the virtue of moral humility

More initiatives by legislative bodies would help to lessen the conditions of poverty and alienation responsible for breeding crime and dangerous people, by addressing the often brutal foundations of authority that provoke violence and the shared discontent that inflames public anger which, in turn, threatens social and political cohesion. Murphy believes that only statutory reform can combat the prevailing stern rhetoric of retribution towards what are urban ills and socio-moral disorders, rhetoric which reflects the current fearful and cruel mood towards criminals and punishment in the US penal system (pp. 223, 225–232). He further advises that we shun the idea that in punishing, we are involved in some ‘cosmic drama of good and evil’; rather ‘we should act with caution, regret, humility, and with a vivid realization that we are involved in a fallible and finite human institution – one that is necessary but regrettable’ (p. 42). Although perhaps an overstatement, the advice of novelist Henry James given to his nephew, Billy James, is repeated as a corrective to the dominant values of the criminal justice system: ‘Three things in life are important. The first is to be kind. The second is to be kind. The third is to be kind’ (p. 232). This resonates with other chapters in the book, which quote Simone Weil from Cahiers II: ‘love sees what is invisible; it sees [and seeks] what does not exist’ (Reference Weil1953, pp. 90, 202). The idea that the poor and other outsiders are invisible to most of us unless seen, as they rarely are, with the eye of love, confirms that ethics and morality are, for Murphy, products of the will.

In considering whether there can be an honourable emotional basis for retribution, Murphy suggests that there is an incumbent moral responsibility to look for the decent core of the wrongdoer in the spirit of moral humility. For Murphy, this rightful disposition of the soul acknowledges one's own cognitive limitations in being unable to know either the heart of others or our own capacity for evil. A measure of what psychotherapists refer to as ‘cognitive restructuring’ is urged in the behaviour of those making moral judgments against others, in order to avoid overdramatising or overmoralising. This requires being aware of the often flawed foundations of our own predispositions and reconnecting with our innate sense of justice, described by Rawls as a state of ‘reflective equilibrium’, by means of which it is possible to test the adequacy of a moral theory (p. 123). We may have been lucky in the ‘natural and social lottery’, and because of privileged circumstances never tempted, or perhaps our law-abiding disposition is more influenced by the consequences of disobedience than any pure impulse.

Murphy offers the example of the Ring of Gyges (from the stories of Herodotus and Plato), which makes its wearer invisible, to illustrate that the prospect of unlimited freedom to act without consequences may entice an otherwise virtuous person to perform anonymous acts of considerable evil as much as charitable gestures (pp. 83, 207). In any case, the scriptural advice to ‘let him who is without sin cast the first stone’ is followed by ‘judge not that ye be not judged’ as a caution against forming final judgments of deep character which may serve to justify inhumane sanctions such as torture or mutilation (pp. 82, 205). In demonising and dehumanising the wrongdoer by denying him human dignity so he becomes a target for the infliction of cruel punishments, there is a danger of dismissing both parties from the human race. The personal and social consequences of failing to act with moral humility are illustrated by the Nietzschean aphorism: ‘Whoever fights with monsters should see to it that in the process he does not become a monster. And when you look long into an abyss, the abyss also looks into you’ (p. 269).

In Orwell's satire Animal Farm, the animals depose the tyranny of human control only to find that the oppressed become the oppressors and are indistinguishable. In the last paragraph of the book, the pigs are wearing trousers, getting drunk, smoking cigars and gambling: ‘the [once again, enslaved] creatures outside looked from pig to man, and from man to pig, and from pig to man again; already it was impossible to say which was which’ (Reference Orwell1996 [1945], p. 139). The allegorical message expresses the danger of malevolently contemplating the darker elements of humanity (gazing into the abyss), an action which is capable of irrevocably altering one's mindset, and may even culminate in the perpetration of our own monstrous acts against the monsters, rendering both them and us interchangeable. A healthier alternative is to consider punitive practices with a reformative character that promotes the moral and spiritual rebirth of criminals and eases their reintegration into society (pp. 50, 51). The US Prison Dog Project is given as an example of how, through a process of habituation, by caring for their designated dog, prisoners have learned to develop the virtues of empathic kindness which may have been absent from their former lives. Here Murphy contends not only that emotions are essentially personal and have special significance by being experienced by the bearer, but that a concern for the moral welfare of others can also be nurtured.

6. Forgiveness, repentance and moral punishment

Murphy considers the communicative function of punishment to be very important in explicating the moral underpinnings of the legal order. Whilst expressing the moral outrage of society at criminal behaviour, he suggests there is a need for the criminal to acknowledge his wrongdoing in terms of how it has impacted on his relationships with others. Many modern philosophers maintain that the continuation of relationships fractured by wrongdoing requires a moral re-evaluation of the wrongdoer, of which forgiveness is an essential component. The Western philosophical tradition, for example, seeks to maximise individual human flourishing or well-being and views forgiveness as a necessary step towards maintaining wider social cohesion, in that ‘we share a common humanity and are not giving up on them’, whilst the theologians prize forgiveness as a necessary part of ‘their own moral rebirth’ and divine salvation (pp. 212–213).

Murphy has been sceptical about the consideration of forgiveness and mercy in criminal justice decision-making in earlier writing. In Forgiveness and Mercy, his earlier work with Jean Hampton, he expressed a wariness of ‘too much uncritical boosterism of forgiveness’, suggesting that forgiveness may consequently be understood as a ‘vice of servility’ and a failure to show proper or sufficient self-respect or indeed respect for the moral order if conferred hastily or too easily (Reference Murphy and Hampton1988, p. 16). He still believes that although forgiveness should be encouraged, it should not be coerced or mandatory, and that if we ‘do not show some resentment to those who, in victimizing us, flout [the moral order] then we run the risk of being complicitous in evil’ (pp. 12, 16). The vindictive passions or retributive emotions such as anger, hate, indignation and resentment would need to be subjugated by the victim for a moral reason and not, for example, because it is expedient or the wrongdoing has been forgotten.

Properly understood, forgiveness is, for Murphy, the voluntary action of a moral agent who has experienced a principled overcoming of feelings of resentment that have been properly directed toward a person who has done one a moral injury. So then, morally legitimate justifications alone are capable of providing an appropriate basis for forgiveness; these may include retributive grounds such as what wrongdoers deserve and whether their wrongful actions were wholly or partly defensible. An apology, however, may have merit in some situations, but it is not considered to be sufficient to qualify as forgiveness because apologies may be given without regret or any attempt at restitution or reconciliation.

In Chapter 7, ‘Remorse, Apology and Mercy’, the modern cynical ‘culture of apology’ is discussed in connection with the legal implications of expressions of regret prior to sentencing, and political figures attempting to avoid responsibility. The use of an apology as a ‘strategy for advancing self-interest’ is argued to have undercut to a substantial degree the social value of the apology ritual (pp. 144–148, 177). Murphy offers the example of bankruptcy, which was once a shameful event and now is simply a business planning mechanism. He locates the modern incarnation of apology and remorse in the context of a ‘sentimental ideology of therapy and healing rather than, say, an ideology of truth and justice’, and laments the fashionable ‘celebration of apology’ and uncritical extension of that celebration into criminal law (p. 174). Only repentance is viewed as capable of signifying guilt and remorse:

Whilst Murphy's earlier writing vigorously asserts that punishment and other forms of strong condemnation are justified on retributive grounds, in Punishment and the Moral Emotions this stance has been replaced by a mollified version of retributivism; for instance repentance by the wrongdoer is no longer viewed as a precondition of forgiveness. It can, however, be a relevant ground for reducing a criminal sentence.

In Chapter 6, ‘Repentance, Mercy, and Communicative Punishment’, repentance is presented as a valuable repudiation of the wrongdoer's message of contempt and humiliation for the victim, conveyed by the criminal act. As a valuable component also of restorative justice, repentance indicates a will to restore equality with the victim and pursue reintegration into the moral community, which the wrongdoer freely and sincerely acknowledges has been damaged (pp. 126, 127). This does not mean Murphy would be comfortable with the ideal non-punishment restorative justice ethos, even though he does not claim that punishment is always necessary, because:

However, Murphy would agree with those aspects of voluntariness and responsibility assumed by the offender in relation to the burden of self-reform and reparation.

7. Christian morality, agapic love and the treatment of offenders

Love as a guiding moral force is a recurring feature in this collection of essays. As an alternative to Rawls's claim that justice is the first virtue of all social institutions, the organisation of criminal law around the idea of a particular type of selfless spiritual love (based on the ancient Greek word agape) is explored in Chapter 3, ‘Christian Love and Criminal Punishment’. Murphy offers a personal view on ‘The Parable of the Good Samaritan’, which is taken to illustrate the principle of neighbourliness: every neighbour is deserving of loving concern and one's neighbour is described by Kierkegaard as the ‘very first person you meet when you open your front door’ (pp. 47–50). This idea is considered to be central to the moral outlook of Christianity (as well as some facets of Stoicism and Judaism), and forbids punishment conceived in hatred or other vindictive passions.

It should be noted that, in the manner of Kant, Murphy uses his own background and experiences to explore and develop his philosophy; and so certain tenets associated with Christianity provide, therefore, a hypothetical belief system in order to explore the utility of, in this instance, agapic love. He considers Notre Dame law professor Thomas Shaffer's view that agapic forgiveness is incompatible with the demand for punishment, and considers it to be mistaken, in that ‘agape is not simply a matter of being nice and cuddly – of giving everyone a warm hug … those motivated by agape will seek punitive practices that contribute to, or at least do not retard, the moral and spiritual rebirth of criminals … helping their characters to grow in virtue’ (pp. 49–50, 57). The implications for the penal system would mean an end to the death penalty, but would not extend to the abolition of prisons, although prisoners must be treated with humanity: incarceration may be compatible with promotion of the common good. As such, Murphy reasons that forgiveness and punishment are not inherently in conflict; rather, the interceding virtue is mercy as distinguished from forgiveness. This distinction allows us to see why ‘there is no inconsistency in fully forgiving a person for wrongdoing but still advocating that the person suffers the legal consequence of criminal punishment (p. 55). The urge, or motivation, to punish is what is significant: ‘hatred and cruelty’ must be kept in moral check and always ‘guarded against in the realm of punishment’ (p. 58).

The agapic Christian obligation to advance a person's moral and spiritual character inevitably involves a paternalistic approach in seeking to establish legal practices and institutions with the lofty aim of promoting a virtuous character in the souls of otherwise criminally minded individuals. Murphy recalls Aristotle's definition in Nichomachean Ethics of the ‘perfect form of friendship’ as a complete sort of friendship between people who are ‘good and alike in virtue’ (p. 49). For Aristotle, virtue is often acquired ‘through a process of habituation – becoming by doing’ which is amplified by collective action; this induces a feeling of ‘human solidarity [which] like compassion, deserves to be classified as a moral feeling’ (p. 98). There is a danger of judging a person who lacks this feeling of solidarity as having a prima facie moral deficiency of character. Using the example of pornography, Murphy illustrates how an agapic love may distinguish between a right to ‘do your own thing autonomy’ and a limited right to ‘choose only among options that could all be part of a good life’, in which case the conversation as to what might constitute a ‘good life’ would be a central concern of law and politics rather than simply a ‘private’ matter (p. 50).

The dominant religious groups in Western societies have long been in agreement on foundational social mores, and so their influence has been historically viewed as a lesser source of disagreement and hostility within the general populus. Under English common law, for example, heterosexual monogamy traditionally served as a religiously sanctioned and decisive source of social norms versus polyandry, polygamy, same-sex relationships and bigamy. The last century, however, witnessed a backlash against the imposition of objective moral truths in supporting the criminalisation of behaviour which is reasoned by the moral majority to be corrupt or corrosive; this was a persistent source of conflict between religion and some forms of political liberalism. In recent times, the English courts have acquired a more secular disposition; as Lord Justice Laws, in MacFarlane v. Relate Avon Ltd [2011] EWCA Civ 880 (para. 21), stated: ‘The general law may of course protect a particular social or moral position which is espoused by Christianity, not because of its religious imprimatur, but on the footing that in reason its merits commend themselves’ (Shaw, Reference Shaw2013, pp. 104–106). Deciding against the idea of legal moralism as a legitimate basis for fixing the boundaries of what constitutes criminal behaviour in a particular society, and for enforcing a subjective code of private or sexual morality on individuals, Murphy quotes the late liberal philosopher Jean Hampton: ‘what makes a state liberal … is its rejection of the idea that any enforcement of moral behaviour should include punishment of immoral behaviour which nonetheless has no victim other than the offender himself’ (p. 75).

8. From disgust to dignity: legal moralism, autonomy and the Hart–Devlin debate revisited

The communitarian notion of shared moral beliefs as a basis for criminalising behaviour was the subject of the famous Hart–Devlin debate, following publication of the ‘Wolfenden Report’ in 1957, which recommended the decriminalisation of homosexuality between consenting adults in private. This is discussed in Chapter 4, ‘Legal Moralism and Retribution Revisited’ (pp. 66–72), and Chapter 11, ‘Moral Reasons and the Limitations of Liberty (pp. 244, 245). For Devlin, the moral standards generally accepted in Western civilisation are those that belong to Christianity and, as such, morals and religion are inextricably joined. In The Enforcement of Morals, he insists that any deviation from the legal and religious marriage-based family model, or any attack on society's constitutive morality, would lead to the inevitable disintegration of society. Murphy discusses Devlin's rejection of the idea of a sphere of private morality, his insistence in The Enforcement of Morals that as society is based upon shared political and moral values ‘the law must protect … the institutions and the community of ideas, political and moral, without which people cannot live together’, a view which underpins Devlin's belief that there is a concomitant obligation to make laws which both protect and defend that morality (p. 23). Devlin famously compared private acts of sodomy to treason, warning that both have a tendency to undermine society; for Hart, this strange analogy shared similarities with Emperor Justinian's claim that homosexuality causes earthquakes (Devlin, Reference Devlin and Devlin1965, p. 50).

Devlin's legal moralism has justifiably attracted much criticism – for example, for the unproven connection between immorality and social decay. However, Murphy supposes that if expressed differently this view has some merit for criminal lawyers. For instance, Murphy reasons that if society is bound by moral values and a link can be proved between the open flouting of moral norms and significant social disintegration, such as family breakdown, divorce, adultery and general promiscuity, then the solemn invocation of Mill's ‘Harm Principle’ (Reference Mill1997 [1859]) would not necessarily preclude criminal legal sanctions (p. 71). Still, after discussing moral and non-moral disapproval, Murphy reaches the conclusion that ‘even if a majority has a right to enforce its moral convictions and finds the homosexual practices revolting … not all revulsion is moral revulsion, [so] it does not follow that … the majority has the right to use the criminal law to target homosexual sodomy’ (p. 253). Paraphrasing Ronald Dworkin, Murphy further proposes that:

In an earlier passage on the retributive outlook, Murphy considers how the assumption of an overstated degree of responsibility in maintaining public moral virtue has resulted in a series of cruel initiatives aimed at the coercive transformation of the transgressor into a compliant member of the social order. One consequence is the ‘advocacy of a therapeutic state’ in which conduct considered morally dubious is pathologised and treated as an illness, thereby legitimating a range of involuntary chemical and other personality-altering intrusions (p. 86). Brilliant mathematician Alan Turing, who investigated a range of questions relating to the mechanistic nature of reality, free will and the law, was punished by experimental hormone therapy for homosexual urges (otherwise known as ‘chemical castration’) instead of prison after being convicted of gross indecency in 1952. The venal English criminal justice system also branded him a security risk, ironic considering his machine was instrumental in cracking the Enigma code which neutralised a major security risk, thereby helping Britain to win World War II and, in turn, ended Hitler's regime of prosecuting and gassing homosexual men. Following a vigorous campaign by prominent scientists including Stephen Hawking, Turing received a posthumous pardon on 24 December 2013, some fifty years after his death by suicide two years after his humiliating sentence was handed down. This is a difficult, perhaps even hypocritical, decision in that it seems Alan Turing received the royal prerogative of mercy only because of his exceptional talent. If so, this implies the other estimated 75,000 men who suffered a similar fate were viewed as less deserving of, in the words of Justice Secretary Chris Grayling, ‘a just reward’, because of their lesser ability. Although since the 2012 Protection of Freedoms Act anyone convicted of homosexuality offences could make a request for the removal of their criminal record if the facts of the case would no longer be considered a crime, it still requires a personal application in every instance.

Comprising what he refers to as ‘fundamental constitutional liberties’, the importance of sexual freedoms is considered by Murphy in general terms, relating to their necessity in assisting individuals to live worthwhile and meaningful lives, weighed against the relative incompetence of the state to make such quintessentially moral judgments. This goes to the heart of the problem of resolving questions relating to the good life or a meaningful life, and what values (if not those of religion) law can use to establish appropriate secular legal criteria. With regard to homosexuality, Murphy identifies the question of the ‘good’ of intimate same-sex relationships as pivotal, with reference to determining the constitutionality of criminal prohibition in the state of Texas (p. xv). Murphy offers the proper application of the ‘rational basis test’ in Justice Kennedy's majority opinion in Lawrence v. Texas 2003 [539 U.S. 558] as an example of the evolving moral vision of the Supreme Court. Overturning Bowers v. Hardwick 1996 [478 US 186], the Court held that there was ‘no compelling government interest’ in criminalising consensual homosexuality, and certainly more than mere animus, an ‘emotion of hatred’, would need to be evidenced in order to justify criminal imprisonment (pp. 73–74). Murphy then briefly ponders whether sexual liberty should trump other liberties before deciding to agree with Hart in opposing the criminalisation of homosexuality, and with Devlin on his rationale for privileging public morality. It is unfortunate that Hart's eloquent and powerful criticisms of Devlin's view are conspicuously absent. Although this is perhaps one of the weaker sections, it nonetheless contains some interesting, if not entirely convincing, propositions. A recently published journal article addresses this gap by challenging the manner in which vice and sexual liberty are discussed in Hart's text (Murphy, Reference Murphy2013).

9. A sentimental basis for justice-based moral punishment

History is replete with pogroms, inquisitions and crusades which have taken place in the name of Christianity, and so in Chapter 12, ‘The Elusive Nature of Human Dignity’, ‘desanctifying’ acts of evil are proposed as a justifiable reason for being sceptical about the moral value of grand totalising ethical schemes and their moral claims. In Chapter 8, ‘The Case of Dostoevsky's General: Some Ruminations on Forgiving the Unforgiveable’, the story of a child brutally murdered for accidentally hurting the paw of a General's favourite dog, in Dostoevsky's The Brothers Karamazov, is used to illustrate that whilst it would be morally legitimate to refuse forgiveness and hold the General in contempt, his human dignity should still be respected. Whilst being in broad agreement with this proposition Murphy also, rather provocatively, suggests that even though the General is without remorse he deserves our pity, not only as a fellow human being, but because he has ‘irreparably damaged his very soul’. He offers the modern example of Saddam Hussein filmed crawling out of a rat hole where he had been hiding for a long time, having the appearance of a frail and scared elderly man as opposed to the architect of great evil. Murphy points out that his victims may have felt very differently: there are great psychological differences between victims and third parties, and these have moral significance (pp. 181, 211, 261–267).

Should an expression of remorse, apology or plea for forgiveness make any difference? Murphy suggests such a gesture from a ‘reflective and self-deceiving wrongdoer’ would be ‘a day late and a dollar short’, and offers the example of Adolf Eichmann. Even if his role in the Holocaust (including arranging transportation to the death camps) was, as claimed by Hannah Arendt, motivated by self-interest, in this case career advancement rather than any genuine ideology (demonstrating what she termed ‘the banality of evil’), Eichmann's lack of conviction or dangerous stupidity did not lessen his complicity in the suffering of the Jews and the evil perpetrated by the Nazi regime (Reference Arendt1963, p. 252). An apology under such circumstances would be ‘worse than that of an unreflective thug who delights in cruelty’, which poses a dilemma of sorts (p. 209). It is easier to distance oneself from the cruel thug than a smooth psychopathic criminal wrongdoer, who can also be a good father, brother, have a love of animals and fine art, and yet is capable of truly terrible acts of violence (pp. 134, 135, 209). As Murphy points out, the moral question of forgiveness in such cases, and any implications for criminal law, are inconclusive. When people use the term ‘unforgivable’, they often mean the wrongdoer who committed the unspeakable act is unforgivable because the injury is irreparable, and in the case of murdered or massacred loved ones this is certainly the case – the injury is beyond repair. Furthermore, since only the victim can forgive the wrong done to them, in the most tragic instances this is impossible, as only ghosts would have the necessary standing.

To advance the notion of the possibility of justice in punishment philosophically and theologically, Murphy promotes forgiveness as a basic concept of humanity and ethical judgment which transcends the given law. It could also be argued that Western philosophy and criminal legal theory are indebted to their Christian heritage, and so this nuanced and complex account draws on theology as much as philosophy to explore the moral foundations of punishment. Nietzsche and the Bible both advise that any abstract hypothesising in moral theory cannot be separated from its social setting and must always begin by recognising our own personal psychology. As novelist Iris Murdoch counsels, the first question that should be asked of any philosopher is ‘What is he afraid of?’ Influences on the author embrace a broad church, and range from the philosophy of Aristotle, Kant and Nietzsche to Rawls, Nozick and Posner, encompassing Jesus and the former Archbishop of Canterbury, William Temple and Sigmund Freud, by way of Rilke, Wordsworth, Dostoevsky, J. M. Coetzee, Walt Whitman, W. H. Auden and Seamus Heaney. This is because, for Murphy, moral judgment is comparable in form to aesthetic judgment in that both are derived from sentiment and not reason.

Literature works against the dulling effects of habitual deference to the stultifying structures of power; it awakens the imagination and provides an alternative sentimental jurisprudence within which to contextualise and rationalise the location of the self and societal forces. In this way, the aesthetic form is alleged to fulfil a democratic ideal in its capacity to create an empathic space within which it is possible to share knowledge and articulate the concerns and aspirations, in particular of those individuals constructed by a social institution which too often fails to accord to them their human dignity as autonomous moral agents (Shaw, Reference Shaw2012, p. 74). Murphy credits the poets and other literary artists with doing the best job of offering a vision around which, not just our thinking but our sensibilities can be organised; so then before being quick to judge we are invited to consider Auden's counsel to ‘love your crooked neighbour with your crooked heart’, in the spirit of moral humility which is regarded as crucial to just punishment (pp. 18–20).

10. Emotions, moral judgment and criminal justice: ‘kisses are a better fate than wisdom’

Murphy's interdisciplinary work demonstrates how, by theorising on the essential function that moral emotions perform in sentencing and other types of condemnation, it is possible to explore them in a variety of important and meaningful ways. Envy can lead someone to break the law; resentment can be overcome by exercising forgiveness; also mercy, motivated by compassion, may reduce the severity of punishment. The inimical relation between justice and compassion, mercy and forgiveness, provides a variety of enduring conceptual conundrums of the type that analytic philosophers usually like to ponder, often in obscure and rarefied language which is often beyond the grasp of traditional lawyers. Such an approach is eschewed by Murphy, as this collection of essays does not constitute a structured historical review of Christian theology and religious scholarship; neither is it a methodical comparison of competing legal doctrine or first principles relating to criminal justice and punishment.

There are other significant absences: for example, he does not address restorative justice specifically, even though restorative justice protagonists and retributive thinkers share the same interest in accentuating the role of emotions in response to offending. Women are, similarly, only briefly mentioned in relation to infanticide and honour killing in the final chapter, along with an earlier reference to the moral and epistemic dimensions of remorse in relation to the exercise of mercy in the case of Tucker v. Texas 1988 [771 S.W.2d 523], in which US death row prisoner Karla Faye Tucker's clemency plea was rejected in spite of substantial evidence of repentance (pp. 137, 276–281). There is no coherent or sustained discussion of gender inequality, nor to what extent gender shapes our understanding of crime and punishment; neither is the treatment of women in the criminal justice or penal system explored, for example, as either too lenient or unduly harsh due to their doubly deviant crime against femininity, even though like race, gender is a social construct which is both binding and determinative. There are, however, plenty of scholarly works which reflect on ethics and moral philosophy, and these tend to adopt a singular focus on specific thoughts and actions in relation to criminal law and justice. Of these undertakings, Murphy paraphrases Aristotle, summarising ethics as a ‘rather messy area’ in which it is a mistake to ‘aim for a level of precision that one might legitimately expect in other fields of philosophy’: ‘neat theories in ethics’ fail to illuminate but rather produce what H. L. A. Hart once called ‘uniformity at the price of distortion’ (pp. xi, 5).

Being suspicious of grand theory, Murphy recommends the next inspirational book in the area of ethics as one that would ‘do justice to the complex and conflicted nature of our actual moral lives’; so instead of having as its title ‘A Theory of …’, it would, more fittingly, be titled something along the lines of ‘Stumbling Along or Muddling Through’ (p. 272). Murphy's belief that moral philosophy is embodied means that for him human emotions instinctively produce moral thoughts capable of motivating moral actions, and so the emotions are intrinsically implicated in creating the values which underpin legal rules. To this end, his exploration of moral emotions does not guarantee solutions in the form of definitive principles or rules that are capable of producing specific results, although he offers a certain degree of normative guidance. The book comprises a particular personal view of the interdependent nature of law, morality, emotion and theology based on forty years of experience in relating key aspects of Anglo-American philosophy to American criminal law. Whilst making no claim to new insights in this volume, Murphy draws on an appealingly catholic range of sources, proposing that the transformation of the criminal justice system depends upon the affective and caring disposition of individuals, in preference to comparing the intellectual rationality of grand totalising schemes and concepts:

Although rationality is historically presented as a restraining, compelling and legitimating authority, it is the passions that define our relationships with others in the world. The emotional drives, our desires, inclinations and intuitions impose on our individual psyche and are further inured by social interaction: ‘man can find justification of his own existence only in the existence of other men’ (de Beauvoir, Reference De Beauvoir2000, p. 17). In this way, the critical development of legal authorities comprises, for Murphy, an evaluative process in which emotion is a major motivational force, and although formal (legal) and informal (ethical) obligations embrace a broad set of external social relations with consequences for real people, without emotion there is no shared humanity and no inclusivity, only instrumentality.

Murphy's privileging of an emotional frame of reference rather than a purely rational framework is reminiscent of the poem ‘since feeling is first’ by e.e. cummings:

Cummings's assertion that life cannot be captured in writing, and the best gesture of his brain is of less consequence than the impassioned flutter of an eyelid, signifies the importance of emotion and feeling over intellectual thought and text. This is also the essence of Murphy's inspired essay collection, in that the passions are at the heart of law, just as they comprise an integral part of human life. They are not simply reducible to expressions of arbitrary subjective inclination; rather the moral emotions are shared equally by all humans, and connect us closely to an external value system which is capable of creating its own organic unity. Whilst avoiding the stance of a ‘bleeding heart, soft-on-crime sentimentalist’, from the perspective of a jurisprudence of love and forgiveness Murphy also recommends the application of moral humility in tempering any urge towards overly harsh, unreasonably punitive and dehumanising judgments.