Do Offenders Deserve Proportionate Punishments?

Abstract

The aim of the paper is to investigate how retributivists should respond to the apparent tension between moral desert and proportionality in punishment. I argue that rather than attempting to show that the term ‘proportionate punishment’ refers to whatever penal treatment the offender morally deserves, retributivists should maintain two things: first, that a punishment is proportionate when it is commensurate to the seriousness of the crime; second, that offenders morally deserve proportionate punishments. This view requires adopting a local theory of desert as opposed to a holistic one. In the second part of the paper, I argue that there are indeed good reasons to adopt a local theory of desert. Once retributivism is seen through the lens of local desert, there is no obvious mistake in saying that offenders morally deserve punishments that are proportionate to the seriousness of their crimes.

Full text

Vol.:(0123456789)
Criminal Law and Philosophy (2021) 15:463–480
https://doi.org/10.1007/s11572-021-09571-y
1 3
ORIGINAL PAPER
Do Offenders Deserve Proportionate Punishments?
GöranDuus‑Otterström1,2
Accepted: 12 April 2021 / Published online: 20 April 2021
© The Author(s) 2021
Abstract
The aim of the paper is to investigate how retributivists should respond to the appar-
ent tension between moral desert and proportionality in punishment. I argue that
rather than attempting to show that the term ‘proportionate punishment’ refers to
whatever penal treatment the offender morally deserves, retributivists should main-
tain two things: first, that a punishment is proportionate when it is commensurate to
the seriousness of the crime; second, that offenders morally deserve proportionate
punishments. This view requires adopting a local theory of desert as opposed to a
holistic one. In the second part of the paper, I argue that there are indeed good rea-
sons to adopt a local theory of desert. Once retributivism is seen through the lens
of local desert, there is no obvious mistake in saying that offenders morally deserve
punishments that are proportionate to the seriousness of their crimes.
Keywords Desert· Proportionality· Punishment· Retributivism
As indicated by the title of the essay, I am interested in whether people morally
deserve proportionate punishments for criminal wrongdoing. This question may
seem confused since, given the way these terms are often used, a ‘proportionate’
punishment is precisely what an offender morally deserves for a criminal wrong.
Yet there are situations in which proportionality and moral desert appear to come
apart. The most obvious examples involve people who have led morally decent lives
despite being unjustly treated at the hands of their community but then commit a
one-off crime without excuse or justification. In such situations, to mete out a pun-
ishment that matches the seriousness of the criminal act seems to clash with the idea
that punishment should be appropriate given the moral worth of the offender. When
the offender’s life already contains more than enough hardship, we might think that
* Göran Duus-Otterström
goran.duus-otterstrom@pol.gu.se
1 Department ofPolitical Science, University ofGothenburg, Box711, 41123Gothenburg,
Sweden
2 Institute forFutures Studies, Stockholm, Sweden
Content courtesy of Springer Nature, terms of use apply. Rights reserved.

464
Criminal Law and Philosophy (2021) 15:463–480
1 3
a proportionate punishment, while perhaps necessary for other reasons, would be
more than the offender morally deserves.1
My aim in this paper is to investigate how retributivists should respond to this
apparent tension between moral desert and proportionality. The question is an
important one since retributivists typically believe both that (negative) moral desert
plays a role in explaining why punishment is permissible or desirable and that pun-
ishments should be proportionate to the crime. I argue that retributivists should
indeed answer that proportionate punishments are morally deserved. That is, rather
than trying to convince us that the term ‘proportionate punishment’ refers to what-
ever penal treatment the offender morally deserves, retributivists should maintain
two things: first, that a punishment is proportionate when it is commensurate to the
seriousness of the crime; second, that offenders morally deserve proportionate pun-
ishments. I call this view proportionalism.
Now in itself this argument is probably unsurprising. To the extent that retribu-
tivists have pondered the relationship between proportionality and moral desert, I
suspect most have thought along the lines of proportionalism. Yet proportionalism
requires a careful defense of a ‘local’ theory of desert, because there is an unavoid-
able clash between proportionality and desert if we understand desert holistically.
Much of the discussion that follows, therefore, aims to show that we should reject
the so-called whole-life theory of desert in favor of the local theory. Some think that
the whole-life theory is a particularly compelling account of desert, and that retribu-
tivism is greatly weakened by its inability to coexist with this theory. I argue that the
local approach to desert is actually more plausible. If I am correct in this, then this is
welcome news for retributivists, because it clears a path for equating proportionate
punishments with an offender’s penal desert.
1 Proportionality andDesert
The topic of this paper, then, is the relationship between proportionality and moral
desert in the context of legal punishment. Let us begin by defining the two concepts
more carefully.2
Claims of moral desert are traditionally thought to take a three-place form
according to which an actor S deserves some object O in virtue of some desert base
B, such that it would be morally good in and of itself that S receive O.3 There is
1 In explaining the intuition that someone morally deserves a disproportionately lenient punishment, it
can be tricky to separate the offender’s moral desert from whether a would-be punisher has the right to
treat her according to her moral desert. When the offender has been treated unjustly, we might find a
lenient punishment is called for simply because the community has lost the moral standing to punish her.
For recent overviews of this debate, see Duus-Otterström & Kelly (2019) and Fritz (2019). I here want
to speak only about the content of moral desert. Thus, I assume that while unjust treatment is potentially
relevant for what a person deserves (e.g. how severe a punishment), it is not relevant for whether others
are morally permitted to bring this about.
2 The following two paragraphs draw heavily on Sher (1987), Feinberg (1999) and Olsaretti (2003).
3 I borrow the term ‘desert object’ from Berman (2013).
Content courtesy of Springer Nature, terms of use apply. Rights reserved.

465
1 3
Criminal Law and Philosophy (2021) 15:463–480
great variety among ways of filling out this formula, but generally S is taken to be a
person and B an action or set of actions that S has already performed and which is
relevant to a moral assessment of S, particularly as regards her moral virtue. Saying
more at this point would be unwise since there is substantial disagreement about the
proper domain of a theory of moral desert. Suffice it to say here that moral desert
typically links certain desert objects—states of affairs or modes of treatment—to the
moral worth of people’s actions. The idea is that when someone morally deserves
some object in virtue of her actions, then it would be morally good in and of itself
if she got that thing. Put differently, morally deserved outcomes have non-instru-
mental and impersonal value: they are good in themselves and need not be good for
anyone.4
It is important to be clear about exactly what we mean when we talk about moral
desert, for there are several ways we use the term ‘desert’ in ordinary language. We
say, for example, that a student deserves a good grade for writing a good term paper,
or that the fastest runner deserves to win the race. Such remarks typically refer to
institutional desert in that they point to what people are entitled to given the way an
institution or practice is set up. Institutional desert is famously different from moral
desert, but the key difference between them is not, as it is sometimes claimed, that
institutional desert sees deserved outcomes as merely owed. After all, it is conceiv-
able that satisfying institutional desert can be morally good in and of itself. What is
distinctive about moral desert is instead the insistence on that the desert base must
draw on the moral quality of someone’s character or actions.5 When we say that a
student morally deserves a good grade, we have in mind something like the fact that
she worked hard. If the student effortlessly wrote an excellent term paper in virtue
of sheer inborn talent, we would not say that she morally deserves a good grade
although she is entitled to one given the prevailing grading criteria. Since I speak of
moral desert throughout the paper, from now I drop the prefix and write just ‘desert’.
What does this mean for punishment? When we say that a person ‘deserves’ a
punishment, the point is that giving her this punishment would be morally good in
and of itself considering the moral quality of her actions or character. More specifi-
cally, the punishment is optimal from the point of view of desert. Talk of ‘morally
deserved’ punishment sometimes admittedly refers to the weaker idea that punish-
ment must not exceed the maximum penalty to which the offender is morally liable,
but the kind of deserved punishments at stake in the paper are those that would be
best from the point of view of desert. Hence, I take the claim ‘person S deserves
punishment P’ to mean that any punishment greater or lesser than P would be infe-
rior to P from the point of view of desert.6
4 Note that saying that morally deserved outcomes have such value is not the same as saying that they
have great value. As Husak (2016) argues, desert might play a small role in what we should do all things
considered.
5 Some also take moral desert to refer to a specific desert object, namely well-being (Kagan 2012). I
am skeptical of this idea for reasons given below. In my view, although moral desert is a function of the
moral quality of one’s actions or character, this is compatible with a plurality of desert objects.
6 Some prefer to say that criminal wrongdoers deserve suffering rather than punishment, arguing that
this avoids circularity. I set this issue to one side, but see Berman (2011) for a nice discussion.
Content courtesy of Springer Nature, terms of use apply. Rights reserved.

466
Criminal Law and Philosophy (2021) 15:463–480
1 3
Consider next proportionality. This refers to matching relationship between the
severity of a punishment and the seriousness of the crime: we say that a punish-
ment is ‘proportionate’ if and only if its harshness is commensurate to the gravity of
the offense.7 The classical account of proportionality thus understood is lex talionis,
or the principle that the harm one inflicts on others should be inflicted in return.
Contemporary penologists, however, hold the more sophisticated view that a punish-
ment is proportionate if and only if its severity is commensurate to the seriousness
of the crime, where seriousness is some function of the harm or wrong caused or
risked and the offender’s culpability (see e.g. Moore 1998, p. 192; Duff 2001, p.
135; Husak 2008, p. 182; Matravers 2020, p. 77).8 From this account, then, a killing
is more serious than assault; an intentional killing is more serious than a negligent
killing; and so on.
Why would proportionality and moral desert thus defined be in conflict? The rea-
son is that the determinants of a person’s deservingness of punishment seem broader
than the factors that go into deciding how serious a criminal act is. The bank robber
who is nice to pets and senior citizens in everyday life, for example, appears more
deserving than an otherwise identical bank robber who is not. Yet being nice to pets
and senior citizens in everyday life does not make one’s bank robbery any less seri-
ous. The seriousness of a crime is determined by the harm caused or risked and the
offender’s culpability, not by whether someone is a ‘nice guy’. In that way, propor-
tionality seems a narrower notion than desert.
How could one respond to the tension? Some might just happily accept it. Indeed,
some prominent defenses of proportionate punishment have no apparent use for
the concept of desert in the first place. If punishment is supposed to communicate
‘the degree of reprehensibleness of the [criminal] conduct’ (von Hirsch 2009, pp.
118–19), for example, it is arguably irrelevant whether offenders deserve the punish-
ments that send the right message. Retributivists, however, are committed to both
desert and proportionality. They need to show why proportionality and desert are
co-extensive in the case of punishment after all. One possibility is to opt for the
view we could call,
Desertism. Any punishment that is deserved is also, thereby, proportionate.
Desertism resolves the tension between proportionality and desert by making the
concept of proportionality completely derivative of desert. Suppose we are deal-
ing with an unjustly impoverished offender (‘Aaron’) whose criminal wrongdoing,
though serious, is a departure from an otherwise morally upstanding life. Suppose
further that the judge decides to mete out an unusually lenient sentence because she
is moved by Aaron’s life history. On desertism, the central question is whether Aaron
deserves the unusually lenient sentence. If the answer is yes, then the sentence is
7 ‘Commensurate’ here can be vague between absolute and relative proportionality (Duus-Otterström
2020). I have absolute proportionality in mind in the paper.
8 There is considerable disagreement within this framework about the role of actual harm for criminal
seriousness (Alexander and Ferzan 2009; Moore 2010) and about the relationship between harm and cul-
pability (Ryberg 2020). I set these matters to one side here.
Content courtesy of Springer Nature, terms of use apply. Rights reserved.

467
1 3
Criminal Law and Philosophy (2021) 15:463–480
proportionate, no matter what we might think about it pre-theoretically. It is propor-
tionate because it matches, or stands in proportion to, Aaron’s negative desert, not
because it fits the crime as such.
Desertism should be rejected. In making proportionality a conceptual slave to
desert, it is at odds with deeply entrenched ordinary intuitions about proportionate
punishment. Indeed, given the right configuration of facts, desertism is compatible
with saying that a slap on the wrist is the proportionate punishment for murder.9 My
sense is that while it is conceivable that some murderers deserve an insignificant
punishment, it is simply implausible to think of this as a proportionate punishment
as opposed to a disproportionately lenient but deserved one. After all, the reason
everyone immediately recognizes ‘ten eyes for an eye’ as clashing with propor-
tionality is that we associate proportionality with the fit between the wrong and the
response. It seems to me that we can and should talk about whether a punishment is
proportionate irrespective of whether this treatment is deserved.
Since desertism is not viable, the remaining option to reconcile proportionality
and desert is to defend,
Proportionalism. Proportionate punishments are punishments whose severity
is commensurate to the seriousness of crimes. Offenders deserve proportionate
punishments.
Unlike desertism, proportionalism retains the standard idea that a punishment is pro-
portionate when its severity matches the seriousness of the crime. The challenge
for this view is of course to explain why proportionate punishments so understood
are necessarily deserved. Indeed, proportionalism may seem a complete nonstarter
since, as a long list of critics have noted, there is little reason to think that imple-
menting a scheme of proportionate punishment would be wise if our aim is to treat
people as they deserve. Even if retributivists could somehow explain why punish-
ment should be reserved for the guilty, so the argument goes, it is extremely unlikely
that punishing the guilty according to the seriousness of their crimes would be good
from the point of view of desert. Since a person’s desert is the product of many fac-
tors which must be considered in combination, to single out an isolated criminal act,
as proportionality would have us do, is too narrow and therefore bound to lead to
undeserved treatment. W.D. Ross summarized the problem well when he noted that
‘the criminals that a retributive theory of state punishment would call on us to pun-
ish … may well be persons who are more sinned against than sinning, and may be,
quite apart from our intervention, already enjoying less happiness than a perfectly
fair distribution would allow them’ (Ross 2002 [1930], p. 59).10
Whether proportionalism is too narrow depends on one’s theory of desert. I will
argue that there is a plausible theory of desert that vindicates the idea that people
can deserve proportionate punishments for criminal acts considered in isolation. The
9 Or that life imprisonment is the proportionate punishment for shoplifting.
10 The criticism is also developed by, for example, Ryberg (2004), Tadros (2011, pp. 66–73), and Kolber
(2020). These theorists do not subscribe to the whole-life theory; they simply argue that this is the theory
to which retributivists are committed. See also Sher (1987, pp. 82–90, pp. 132–149).
Content courtesy of Springer Nature, terms of use apply. Rights reserved.

468
Criminal Law and Philosophy (2021) 15:463–480
1 3
critics argue, however, that when we judge how a person deserves to be treated, we
must consider all of her deeds and not just an isolated act. Indeed, the critics of pro-
portionalism typically subscribe to the ultra-holistic theory of desert called,
The whole-life theory of desert. People deserve that their lifetime well-being
corresponds to their lifetime virtue.
Following the whole-life theory, we first consider the level of virtue and vice
embodied in a person’s life up to some pointin time. We then consider the sum of
well-being (e.g. happiness) the person has enjoyed up to the same point. Finally, we
assess whether the well-being matches the level of virtue. What people deserve is
that their lifetime well-being corresponds to their lifetime virtue.11
Before discussing why the whole-life theory clashes with proportionalism, it is
worth noting that the theory is not the only holistic account of desert. We can dis-
tinguish between accounts of desert along two axes, one spatial and one temporal.
Let us call a theory of desert that for the purposes of judging what a person deserves
counts all deeds a ‘wide’ theory of desert and a theory that looks at isolated deeds
a ‘narrow’ theory of desert. Let us further call a theory of desert that counts past
deeds a ‘diachronic’ theory and a theory that only looks at present deeds a ‘time-
sliced’ theory.12 Since the temporal and spatial axes are logically independent, as
Fig.1 shows we can distinguish between four different types of desert theory, and
the claim that we should be ‘holistic’ about desert is ambiguousbetween boxes 3 or
4. A theory of desert could count all of a person’s deeds while restricting the tempo-
ral extension of that calculus, say because it takes an episodic approach to morality.
On such a view, what someone deserves will be a function of all of their good and
bad deeds in the recent past.
Yet, the reason to count all deeds in the present—some kind of ‘completeness’—
typically also generates a reason to count deeds over time. Therefore, a holistic
approach to desert typically occupies box4 in the figure. The whole-life theory is
the paradigmatic example of a box4 view since it takes all deeds, past or present,
to be relevant for judging what a person deserves. The local theory I will espouse
occupies box1, though as I shall note it could also be developed as a diachronic
view and thus occupy box2.
Having noted that references to a ‘holistic’ approach to desert can be ambigu-
ous, let us now turn to the clash between the whole-life theory and proportionalism.
The reason the whole-life theory is incompatible with proportionalism is that there
is no reason to think that inflicting proportionate punishments on offenders would
bring their lifetime well-being and lifetime virtue into alignment. What if (to take
just one example) we are dealing with a one-time offender whose long list of good
11 Strictly speaking, the important thing is the outcome at the end of a person’s life, but since we do not
know whether an undeserved excess or lack of well-being will be offset by later on, it is reasonable to
take the whole-life theory as saying that there should be a continuous match between a person’s well-
being and moral virtue.
12 These are simplifications because the axes are dimensions, but writing about them as categories is
easier and does not obscure the point that references to ‘holism’ can be ambiguous.
Content courtesy of Springer Nature, terms of use apply. Rights reserved.

469
1 3
Criminal Law and Philosophy (2021) 15:463–480
deeds have gone unrewarded, such that their pre-crime sum of well-being was much
lower than it ought to have been? To be sure, committing a criminal wrong affects
one’s level of moral virtue negatively and so is a reason one should be faring less
well according to the whole-life theory. But the question is whether inflicting a pro-
portionate punishment would be good from the point of view of desert in a holistic
sense, and since there is a difference between the seriousness of a crime and a per-
son’s lifetime moral virtue, the whole-life theory at best gives us a contingent jus-
tification for proportionate punishments. Indeed, if we adopt the whole-life theory,
we may find ourselves having desert-based grounds to abolish the institution of legal
punishment altogether.
So proportionalism is hopeless if we adopt the whole-life theory. But why must
we adopt the whole-life theory? The obvious alternative is to argue that people
deserve punishments not because of their lifetime well-being and moral virtue but
because of having committed a criminal wrong. That is, retributivists could instead
embrace:
The local theory of desert. People deserve particular kinds of treatment in
virtue of context-specific desert bases.
This is just an empty formula that needs fleshing out, but it should immediately be
clear how taking a ‘local’ approach could resolve the tension between proportionate
punishments and desert. If what people deserve for criminal wrongdoing turns on
a context-specific desert base, and the context-specific desert base with respect to
legal punishment is the seriousness of one’s crime, then it is not puzzling why peo-
ple deserve proportionate punishments.
The question, though, is whether it is plausible to abandon the whole-life the-
ory in favor of the local theory. While the latter is not without defenders—I take
it that Joel Feinberg’s seminal essay ‘Justice and Personal Desert’ (1999 [1963])
and George Sher’s Desert (1987) espouse local theories, for example—it has been
argued that the whole-life theory is the ‘most attractive’ (Tadros 2011, p. 73) and
‘elegant’ (Kolber 2020, p. 185) account of desert. The whole-life theory certainly
has an impressive intellectual pedigree. It is endorsed by eminent historical think-
ers such as Leibniz, Kant, Sidgwick and Ross (Feldman and Skow 2020) as well
as by the most penetrating work on desert to date, Shelly Kagan’s book The Geom-
etry of Desert (2012).13 The reason the whole-life theory garners support is that it
is thought to explain important moral beliefs, in particular the idea that it is good
in and of itself when the virtuous fare better than the vicious. The argument is that
unless we adopted the whole-life theory, we could not explain, for example, that
serial wrongdoers deserve greater punishment than morally decent first-time offend-
ers for committing similar crimes.
Remarks like these could lead us to think that retributivists would be ceding
something centrally important if they were to abandon the whole-life theory—they
13 While Kagan does not restrict his arguments to the whole-life theory, he does note that the main
object of moral desert is well-being, that the predominant basis for moral desert is virtue, and that count-
ing desert across whole lives seems ‘preferable’ (2012, pp. 6–12).
Content courtesy of Springer Nature, terms of use apply. Rights reserved.

470
Criminal Law and Philosophy (2021) 15:463–480
1 3
would resolve the tension between desert and proportionality by, as it were, butcher-
ing the real meaning of desert. I want to argue that this is mistaken. In my view, the
local theory offers a more compelling account of desert. I argue for this claim in the
next two sections. My strategy is to show that the whole-life theory faces significant
difficulties that the local theory avoids and that the objections that can be directed
against the local theory are less worrisome in comparison.
2 Rejecting theWhole‑Life Theory ofDesert
To see why the whole-life theory is implausible, consider the following case:
Helpful Scoundrel. Bert has lived his life in a selfish and ruthless way, using
deceit and dirty tricks to pursue a successful corporate career. The strategy
has worked; Bert has never gotten his comeuppance but has led a comfortable
and happy life. One day, on the way to a business meeting, Bert notices a dog
escaping from the leash of a passerby. The dog runs into the street. Upon see-
ing this Bert, suddenly and totally out of character, rushes into the street and
saves the dog from the oncoming traffic. He does this without ulterior motive:
he genuinely wants to help the dog and its owner.
Suppose that saving the dog was neither morally required nor socially normal in
the sense that it is just ‘what anyone would do’ when witnessing a similar situation.
Suppose further that saving the dog involved a non-trivial risk to Bert. Does Bert
then deserve praise or gratitude for his act? It seems to me that the answer is yes.
Bert did a nice thing at a risk to himself. Surely, he deserves to be praised or thanked
for this, despite being a bad person in general. The whole-life theory, however, can-
not explain this. Bert’s lifetime well-being, we can safely assume, far exceeds his
moral virtue. According to the whole-life theory, therefore, Bert should fare worse
and not better. True, in rescuing the dog, Bert’s level of moral virtue improves, mak-
ing his happiness less problematic than it was before. But it is not plausible that the
act of rescuing the dog totally redeems Bert: he is presumably still better off than he
deserves to be given his overall moral virtue. This means that Bert does not deserve
praise or gratitude for rescuing the dog according to the whole-life theory. Indeed,
if the dog owner knew all the facts, she would see that it would be better to actively
reduce Bert’s well-being, say by insulting him. This is quite counterintuitive.
Fig. 1 Four types of desert
theory
Time-sliced Diachronic
Narro
w1. 2.
Wide 3. 4.
Content courtesy of Springer Nature, terms of use apply. Rights reserved.

471
1 3
Criminal Law and Philosophy (2021) 15:463–480
Defenders of the whole-life theory will no doubt reply that the Helpful Scoundrel
case simply does not speak to their theory since the case asks us to consider whether
someone deserves praise or gratitude and not whether someone deserves to be far-
ing well. The idea is that since the whole-life theory focuses specificallyon well-
being, it can grant that Bert deserves praise or gratitude for rescuing the dog without
undermining the separate point that he also deserves a less happy life.
This would be a good response if praising or thanking someone and making them
happy were always two separate things, but this is clearly incorrect. We can and
typically do enhance people’s happiness by praising them or offering them a heart-
felt thanks. This blocks the idea that the whole-life theory can explain why some-
one like Bert deserves praise or gratitude just because the theory focuses on well-
being. Indeed, the notion of separating out people’s well-being from the way they
are treated is odd to begin with since one’s well-being in large part depends on the
way one is treated. According to the whole-life theory, if a heartfelt thanks from the
dog owner would make Bert happier, it would not be deserved for the indirect rea-
son that it would bring about undeserved happiness.
There are only three situations in which the whole-life theory could say that prais-
ing or thanking Bert for rescuing the dog would be consistent with his desert. The
first is if praising or thanking him would for some peculiar reason reduce his well-
being. Praising or thanking him would then be deserved since it would bring about
deserved unhappiness. The second is if praising or thanking him would leave his
well-being unaffected. It would then be compatible with the whole-life theory to say
that he deserves praise or gratitude for some reason other than overall moral virtue.
The third is if we would offset the well-being improvement Bert would gain from
praise or gratitude by reducing his well-being in some other way (e.g. kicking him
on the leg immediately after thanking him). The first two situations are clearly unu-
sual and the third is downright strange. Moreover, only the first describes an entail-
ment of the whole-life theory; the other two merely show how the whole-life theory
could coexist with some other account of desert which tells us that Bert deserves
praise or gratitude. In the normal situation where praising or thanking Bert would
make him happier, the whole-life theory is at odds with the idea that Bert deserves
such treatment. It is also worth noting that even if the whole-life theory would some-
how be able to say that Bert deserves praise or gratitude for rescuing the dog, it is
unlikely that this will be for the right reasons, for the theory sees deservingness of
praise and gratitude as contingent on its effects. It is plausible that Bert deserves
gratitude from the dog owner independently of whether it affects his well-being, but
this is not something the whole-life theory could say.
The whole-life theory could not be rescued from this result by disaggregating
Bert’s desert into claims about how he deserves to be treated by different agents.
When we consider the Helpful Scoundrel case, it is natural to think that Bert
deserves praise and gratitude specifically from the dog owner and scorn from those
he has treated badly. However, while it seems true that desert can be ‘agent relative’
Content courtesy of Springer Nature, terms of use apply. Rights reserved.

472
Criminal Law and Philosophy (2021) 15:463–480
1 3
in this sense, it is not an idea the whole-life theory can help itself to.14 The whole
point of the whole-life theory is that we should focus on overall well-being and over-
all virtue. Once the dog owner adopts this outlook and realizes that Bert fares better
than he deserves, she would draw the same conclusion as everyone else, namely that
thanking Bert would be bad from the point of view of desert if it would make him
happier.
Someone might still want to defend the intuitive attractiveness of the whole-life
theory by pointing out that if a nicer person than Bert had rescued the dog, then that
person would have been more deserving of praise or gratitude than Bert. But on
this point, I am quite prepared to bite the bullet. In my view, there is no difference
between Bert and the nicer person in terms of their deserving praise or gratitude for
saving the dog, since what they deserve to be praised or thanked for is the act of
rescuing the dog and this is an act both Bert and his nicer counterpart performed.
It seems to me, then, that the right thing to say is that either person would deserve
praise or gratitude for rescuing the dog, but that Bert in addition would deserve
scorn for his ruthless behavior.
3 The Local Theory ofDesert
The reason the whole-life theory fares so badly in a case like Helpful Scoundrel is
its monism, i.e. the fact that it makes virtually all questions of desert a matter of
aligning moral virtue and well-being. It stands to reason, then, that a more plausi-
ble approach to desert is to reject monism.15 This is the main message of the local
theory of desert.
The local theory of desert has two notable features. First, it adopts a pluralis-
tic approach to desert. Whereas the whole-life theory treats desert as a relationship
between one particular desert object (well-being) and one particular desert base
(virtue), the local theory maintains that there are many different desert objects and
that the desert base may well differ between them. We might say that, for the local
theory, desert must be broken down into different ‘spheres’ of desert, where a sphere
is defined in terms of a distinctive desert object and is governed by its own standard
as to how the relevant object is allocated. The things that make someone deserv-
ing of gratitude, for example, are not necessarily the same as the things that make
us deserving of punishment. This follows Feinberg’s observation that ‘the bases of
desert vary with the mode of deserved treatment’ (Feinberg 1999, p. 73).16
15 An additional ground to doubt the whole-life theory is that it is imperialistic: because it takes moral
virtue to be relevant for the distribution of all sources of well-being, it makes almost everything a ques-
tion of desert.
16 Sher (1987) for the most part prefers to divide spheres of desert based on different desert bases (e.g.
effort) rather than different desert objects.
14 I do not want to overstate the agent relativity of desert, because while gratitude appears to be agent
relative, this does not seem to hold for desert objects in general. To see this, suppose orbiting aliens hap-
pened to observe Bert as he rescued the dog. While it would have been odd for the aliens to think that
they owed Bert a thank you before they zoomed off into space, they might well have had a desert-based
reason to land and dish out some praise. The difference, if there is one, could be explained by Feinberg’s
(1999, p. 82) remark that ‘anyone can admire or deplore’.
Content courtesy of Springer Nature, terms of use apply. Rights reserved.

473
1 3
Criminal Law and Philosophy (2021) 15:463–480
Second, the local theory insists on the mutual independence between spheres of
desert. This stands in stark contrast with the fungibility that characterizes the whole-
life theory. Suppose Betty performs a helpful act but once escaped punishment for
a crime. The whole-life theory might here say that it would be good to withhold
any expression of gratitude towards Betty as compensation for the fact that Betty
escaped punishment in the past. The local theory, by contrast, maintains that desert
must be disaggregated into mutually independent spheres, meaning that there is no
master desert that allows for fungibility between all types of treatment. For that rea-
son, rather than seeing not thanking Betty as an appropriate way to offset a prior
mistake, the local theory will regard it as another violation of desert. To not thank
Betty would add the error of ingratitude to the already existing error of insufficient
punishment.
To be sure, this is a bare-boned account. To flesh out the local theory, much
more would need to be said, for example, about how many ‘spheres’ of desert there
are. Feinberg (1999) famously divided desert into five modes of treatment—prizes,
grades, rewards and punishments, praise and blame, and compensation—but no
doubt other lists could be drawn up.17 Likewise, more would need to be said about
the desert bases that govern different spheres of desert. I do not need that kind of
detail here, however, because the important thing for my argument is—apart from
the reasonable assumption that punishment is a sphere of desert—just the idea that
different spheres call for different and mutually independent allocations. It is this
structural feature of the local theory that ensures that it provides a more plausible
approach to desert. Consider again the case Helpful Scoundrel, in which it seemed
intuitive that Bert deserves praise or gratitude for rescuing the dog despite being a
bad person. The local theory is able to explain this precisely because it treats Bert’s
desert for rescuing the dog and for his ruthless behavior as two separate things.
Since the local theory refuses to subsume all questions of desert under some kind
of master desert, it allows that people can simultaneously deserve praise or gratitude
for one act and blame for another.
The local theory resembles various local approaches to justice, such as those by
Michael Walzer (1983) and Jon Elster (1990). These approaches sometimes come
with controversial metaethical commitments, so it is important to note that we need
not endorse conventionalism just because we accept that there are different spheres
of desert.18 What the local theory shares with these approaches is just the (plau-
sible) insistence that it would often be a mistake to allocate goods without recog-
nizing their distinctive properties. This point is even more striking on a theory like
Walzer’s because it deals with distribution in general and not just with desert. Yet
the same point stands even when we restrict out attention to desert, because just like
we do not think that, say, winning a Nobel Prize should affect one’s access to health
care, we do not think that people who are rude to strangers cannot deserve good
17 Feinberg did not explicitly defend mutual independence between spheres of desert, but it is arguably
implicit in his account. Sher is somewhat more explicit on mutual independence since he mentions that
different kinds of desert can be incommensurable (see e.g. Sher 1987, p. 84).
18 I lay out my reasons against conventionalism about desert in Duus-Otterström (2018).
Content courtesy of Springer Nature, terms of use apply. Rights reserved.

474
Criminal Law and Philosophy (2021) 15:463–480
1 3
grades for working hard on their term papers. To be sure, there are cases where dis-
aggregation into mutually independent contexts of desert starts to look implausible.
For example, it would be fanatic to insist on praising Bert for rescuing the dog if
Bert were a mass murdering pedophile. But what drives these reactions is arguably
that morally vicious people are so deserving of blame and punishment that it drowns
out our reason to praise them for the good deeds they may nevertheless perform. We
may think that someone deserves praise for an act but maintain that acting on this
desert is insignificant given everything else that the person deserves.
Let us now return to proportionalism, the view that offenders deserve punish-
ments that are proportionate to the seriousness of their crimes. We have seen that
critics think that proportionalism is too narrow. The local theory shows that this
criticism is wildly underspecified. On a local approach to desert, the question of
whether proportionalism clashes with desert depends entirely on whether propor-
tionality is an appropriate principle of desert in the sphere of punishment. Suppose
we were to accept Mitchell Berman’s account of deserved punishment, which says
that:
An individual who engages in wrongdoing deserves that her life go less well
than it otherwise would have gone, and less well in proportion to the blame-
worthiness of her wrongdoing, and that she understands that it goes less well
as a consequence of her wrongdoing (Berman 2013, p. 88).
There would then be no tension between proportionality and desert. Getting a pro-
portionate punishment is simply part of how desert works in relation to punishment.
Complaining that punishment so conceived will fail to align well-being and virtue is
just to fail to respect the plurality and mutual independence of spheres of desert.19
That proportionalism succeeds must of course be demonstrated. We cannot
defend proportionalism without considering arguments for and against proportional-
ity as the standard of local desert in the sphere of punishment. It is not part of my
ambition here, though, to defend proportionalism as a substantive view (although I
am inclined to think that it is correct). I merely want to point out that once retribu-
tivists adopt the local theory of desert, then a space is carved out that makes propor-
tionalism a viable idea. There is nothing strange about saying that criminal wrong-
doers deserve proportionate punishments because this could be the correct standard
of desertin the sphere of punishment.
4 Objections totheLocal Theory
Let me now respond to some objections to the local theory. The most obvious objec-
tion is that the local theory is unable to account for the fundamental attraction of
desert, which is its likeness to divine justice. Consider the following passage from
Adam Kolber:
19 Berman (2013, p. 104) captures this point by calling retributivism a ‘localized’ theory of justice.
Content courtesy of Springer Nature, terms of use apply. Rights reserved.

475
1 3
Criminal Law and Philosophy (2021) 15:463–480
The whole-life view has been likened to divine justice for a reason. When we
picture divine justice, we tend to imagine an omniscient deity that dispenses
good or bad treatment based on full knowledge of a person’s desert. We might
think the current-crime approach deficient to the extent that it ignores aspects
of moral desert. What started as the relatively attractive intuition that good
people deserve good things and bad people deserve bad things turns out to
ignore much of (and probably most of) a person’s moral desert. It’s as if entry
to the Pearly Gates were calculated only on weekend behavior while entirely
ignoring weekday behavior (Kolber 2020, p. 190).20
Two (connected) points are being raised here. The first is that the local theory
‘ignores aspects of moral desert.’ The second is that the local theory is, thereby,
unlike divine justice. I discuss them in order.
Kolber argues that taking a local approach to punishment would be a mistake
because, in looking only atwhat a person deserves in virtue of committing a crime,
we would ignore all the other determinants of a person’s desert, including the fine
qualities the person might have exhibited in other areas of life. The selective focus
on the crime is especially problematic, Kolber argues, because it all but ensures that
many offenders would be overpunished for their crimes.21 It is tantamount to treat-
ing someone according to their worst behavior without giving them credit for good
behavior or for past hardships endured.
The key thing to note in response is that the local theory does not ignore aspects
of desert as much as it compartmentalizes them. Suppose someone is simultane-
ously an extraordinarily selfless parent and guilty of a criminal wrong. Kolber seems
to think that the local theory would somehow force us to ignore that people deserve
credit for being selfless parents. But the local theory does no such thing, it only
rejects that we must factor in someone’s parenting skills when determining what she
deserves for breaking the law.
Once we see that the local theory does not ignore aspects of desert any more than
the whole-life theory does, we see that everything turns on whether compartmen-
talizing desert is plausible. If the answer is yes, then there is nothing structurally
wrong with meting out proportionate punishments as far as desert is concerned. In
particular we could not say that proportionate punishments are practically guaran-
teed to be undeservedly harsh. Kolber assumes that overpunishment means ‘more
than deserved given all of a person’s deeds’, but if we are right to compartmentalize
desert and proportionalism is correct, overpunishment means ‘more than deserved
in light of the seriousness of the offender’s crime’. A proportionate punishment then
cannot be undeservedly harsh.
20 By the ‘current-crime approach’, Kolber means roughly what I call proportionalism. It should be
stressed that Kolber wants to reject the whole-life theory as well. A desert skeptic, his overall argument
is that retributivists cannot formulate a satisfactory answer to various ‘time frame’ problems. Still, he
thinks the whole-life theory better captures what seems attractive about desert.
21 Kolber assumes that overpunishment is a worse error than underpunishment for retributivists. I agree
with this (Duus-Otterström 2013).
Content courtesy of Springer Nature, terms of use apply. Rights reserved.

476
Criminal Law and Philosophy (2021) 15:463–480
1 3
This brings us to Kolber’s claim that the local theory does not look anything like
divine justice. On this score, I am in agreement with Kolber. Since the local theory
treats our desert as occurring over a series of local allocations, each in accordance
with the logic that is appropriate for the treatment in question, it does not resemble
the kind ofcomprehensive weighing up we imagine would take place at the Pearly
Gates. But unlike Kolber I suspect this might be a feature of the theory rather than
a flaw. We have seen that refusing to disaggregate desert leads to problems, such
as thinking that bad people can never deserve praise or gratitude. To the extent the
whole-life theory mimics divine justice, then, there is reason to question how just
divine justice really would be.
I recognize, however, that the divine justice metaphor is compelling. The reason
many are attracted to desert in the first place is that they believe that virtuous people
should be happy and that vicious people should be unhappy. The local theory does
not guarantee these outcomes. Since the theory treats desert as emerging from a
series of mutually independent allocations, it is compatible with an overall outcome
where the virtuous are unhappy, or unhappier than the vicious. This may suggest
that the whole-life theory should be endorsed after all.
I admit to feeling the force of this objection and want to say three things in
response. First, it would be a mistake for a proponent of the local theory to try to
deflect it by making ‘lifetime well-being’ a separate sphere of desert.22 The sources
of well-being are so diverse and all-encompassing that this will inevitably end up
making the local theory either pointless or internally inconsistent. The whole-life
theory and the local theory are rivals precisely because the local theory does not
work with some kind of master desert. Second, the local theory is able to explain
things that are somewhat similar to the idea that the virtuous deserve to fare better
than the vicious. Consider Kolber’s claim that ‘good people deserve good things
and bad people deserve bad things’ (Kolber 2020, p.190). The local theory can
certainly explain that, because if good (bad) people are people who perform good
(bad) actions, then they will come to deserve good (bad) treatment in different local
contexts of desert. Indeed, we can even say something stronger. Because it is likely
that a good person will attract positive desert in many situations, and a bad person
negative desert, we can expect a society ruled by the local theory to lead to differ-
ent overall outcomes for good and bad people even though there is no grand theory
governing the whole scheme. This is certainly not the same as allocating happiness
according to virtue, but it would be surprising if a faithful application of the local
theory would produce, for example, a world in which the vicious are happier than
the virtuous. Third, the very idea of happiness according to virtue looks less force-
ful once we seriously consider the local theory. If we had a perfectly devised local
theory that were perfectly implemented, we would have a situation in which people
are treated exactly as they deserve in each individual situation. It is not clear what
would be missing from this picture as far as desert is concerned, apart from the fact
that people may derive different amounts of happiness or unhappiness from their
deserved grades, punishments, heartfelt thanks, and so on.
22 This is arguably a mistake Sher (1987, pp. 132–149) makes.
Content courtesy of Springer Nature, terms of use apply. Rights reserved.

477
1 3
Criminal Law and Philosophy (2021) 15:463–480
The idea of desert as a series of local allocations is also able to explain another
intuition that is thought to speak in favor of the whole-life theory, namely our sense
that past actions should matter for what someone deserves for a current act. To see
this, suppose that offenders deserve punishments that are proportionate to the seri-
ousness of their crimes. Suppose further that we are dealing with two men that have
committed similar thefts, but whereas one man has committed numerous thefts in
the past, the other is a first-time offender. Here it can seem odd to suggest, as the
local theory would, that the two men deserve similar punishments. But note that if
the local theory were faithfully implemented, then the repeat offender would have
gotten what he deserved for each of his previous thefts. His slate would in that sense
be wiped clean, making the idea that the two offenders now deserve similar pun-
ishments much more plausible. As this shows, when we consider the role of past
actions in the local theory, it is important to be clear about whether we assess the
theory under ideal or non-ideal circumstances, i.e. whether we assume that the the-
ory is generally implemented or not (Rawls 1999, p. 8).23
But what would happen if the repeat offender did not get what he deserved for
his previous thefts? Should he still be punished the same as the first-time offender?
The question is ambiguous, because we need to know what the repeat offender is
punished for. He certainly deserves punishment for the thefts he got away with, so
from the point of view of local desert it would be good to punish him for these thefts
now; and if the only way to do that would be for us to enhance his punishment for
his latest theft, then doing so would also be good.24 It is another matter whether the
previous thefts also mean that the repeat offender deserves a greater punishment for
his latest theft. There are arguments on both sides here, but I tend to think that past
offending does not make one’s current crime any more serious.25 Hence, I would
say that if the repeat offender were proportionately punished for his past thefts, he
would not deserve a greater punishment for his latest theft compared to the first-time
offender. To use the terms introduced in Sect.2, this means that I would espouse a
‘time-sliced’ local approach rather than a ‘diachronic’ one. It is worth underlining
that taking a time-sliced approach is not the same as ignoring past actions tout court,
as the two thieves case demonstrates.
Let us finally consider the problem of credit served for wrongful conviction,
which is interesting because it demonstrates how uncorrectable mistakes might be
handled by the local theory. Consider the following case:
Robberies. Carl is prosecuted for robbing a bank. Carl is in fact innocent, but
had he robbed the bank in the way alleged, he would have deserved five years.
23 The whole-life theory also fares better when considered as an ideal theory. For example, if Bert would
be at the wellbeing level he deserved when he rescued the dog, then improving his well-being by praising
him would be good from the point of view of whole-life desert (since his virtue improves by rescuing the
dog).
24 Note that I am speaking strictly about desert-based value here. There are obviously rule of law-related
reasons why people should not be punished for crimes other than the ones prosecuted.
25 For a helpful overview of the debate, and an original argument for why repeat offenders are more cul-
pable, see Lee (2009).
Content courtesy of Springer Nature, terms of use apply. Rights reserved.

478
Criminal Law and Philosophy (2021) 15:463–480
1 3
The court mistakenly finds Carl guilty and sentences him to five years. The
mistake is never detected and Carl serves the sentence in full. Upon release,
Carl robs a bank in exactly the same way as the robbery for which he was mis-
takenly punished.
Suppose again that the local standard we endorse is that offenders deserve propor-
tionate punishments. Kolber argues that this has implausible implications in Robber-
ies, because if we were to look only at the seriousness of Carl’s crime, Carl would
end up spending ten years in prison, which would be more than he deserves. The
conclusion Kolber draws is that retributivists need a wider account of desert if they
are to handle credit for time served (Kolber 2020, pp. 193–94).
Two points can be made in response. First, taking Carl’s undeserved punishment
into account is not the same as taking all of his deeds into account, let alone his
overall well-being. A retributivist could argue that Carl deserves a lenient punish-
ment because of the wrongful conviction without having to say that he also deserves
a lenient punishment in virtue of, say, being nice to pets or senior citizens. It would
be a mistake to take the intuition that Carl deserves little or no punishment for
the second robbery as evidence for the whole-life theory. To put things in proper
perspective it should be noted that the whole-life theory can endorse things that a
retributivist would find much more troubling than the idea of punishing Carl again,
such as using punishment against innocent but undeservedly happy people.
Second, even if the local theory would say that Carl deserves five years for the
second robbery, it is not clear that this result is objectionable. The local theory holds
that Carl’s desert for robbing the bank and for being mistakenly punished are two
separate questions. Thus understood, there is no reason why Carl’s compensation
must come in the form of credit for time served in the first place. Carl most likely
deserves a public apology plus a sizeable check from the government for the mis-
taken punishment, not a get-out-of-jail-free card.
Kolber responds that credit for time served ‘would more accurately compensate’
(Kolber 2020, p. 194). That may be so, but notice that the local theory’s aim is not
that Carl must end up no worse off. Kolber seems to assume that it would be a prob-
lem from the point of view of desert if Carl would be worse off in the situation
where he robbed the second bank and was compensated compared to the counter-
factual state of affairs in which he was never mistakenly punished in the first place.
The local theory, however, rejects precisely this sort of fungibility between mutually
independent allocations of desert. In terms of overall well-being, the compensation
Carl deserves may well be insufficient to offset the punishment that Carl also, for
independent reasons, deserves. The same would hold for offenders that are overpun-
ished for their crimes. Overpunishment is regrettable, and grounds for compensa-
tion, but excessive punishment for a crime would not make a corresponding under-
punishment for a future crime deserved.
Content courtesy of Springer Nature, terms of use apply. Rights reserved.

479
1 3
Criminal Law and Philosophy (2021) 15:463–480
5 Conclusion
I have argued that the potential conflict between proportionality and desert in pun-
ishment is dissolved once retributivists adopt the local theory of desert. When
deserved punishment is seen as a ‘local’ issue, nothing stops retributivists from
endorsing proportionalism, i.e. the view that an offender morally deserves a propor-
tionate punishment. If proportionalism is correct, the concern that proportionality
calls for undeservedly harsh punishments goes away.
It is worth repeating that I have not offered positive arguments for why pro-
portionalism is correct. My aim has merely been to clear a path for this approach.
Determining the extent to which proportionality is a plausible standard of desert in
the sphere of punishment is a topic for another day. While the substantive relation-
ship between proportionality and desert no doubt raises difficult questions, following
this paper we at least know two things: first, retributivists should reject the whole-
life theory in favor of the local theory; second, once retributivists adopt the local
theory, their defense of proportionality will be exactly as strong as the case for why
people deserve proportionate punishments.
Acknowledgements Previous versions of the paper were presented online at meetings organized by
Georgetown University, Aarhus University, and the University of Gothenburg. I am grateful for the com-
ments I got during those events, especially from the authors that contribute to this special issue. I am also
grateful for the extensive written comments I received from Kasper Lippert-Rasmussen and Søren Midt-
gaard. Finally, I would like to give special thanks John Hasnas and Douglas Husak for conceiving of the
workshop on proportionality and for deciding to run it online after the pandemic hit.
Funding Open access funding provided by University of Gothenburg.
Open Access This article is licensed under a Creative Commons Attribution 4.0 International License,
which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as
you give appropriate credit to the original author(s) and the source, provide a link to the Creative Com-
mons licence, and indicate if changes were made. The images or other third party material in this article
are included in the article’s Creative Commons licence, unless indicated otherwise in a credit line to the
material. If material is not included in the article’s Creative Commons licence and your intended use is
not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission
directly from the copyright holder. To view a copy of this licence, visit http:// creat iveco mmons. org/ licen
ses/ by/4. 0/.
References
Alexander, Larry, and Kimberly Kessler Ferzan. 2009. Crime and Culpability. Cambridge: Cambridge
University Press.
Berman, Mitchell. 2011. “Two Kinds of Retributivism.” In Philosophical Foundations of Criminal Law,
edited by Antony Duff and Stuart Green. Oxford: Oxford University Press, 433–57.
Berman, Mitchell. 2013. “Rehabilitating Retributivism.” Law and Philosophy 32 (1): 83–108.
Duff, Antony. 2001. Punishment, Communication, and Community. Oxford: Oxford University Press.
Duus-Otterström, Göran. 2013. “Why Retributivists Should Endorse Leniency in Punishment.” Law and
Philosophy 32 (4): 459–83.
Duus-Otterström, Göran. 2018. “Retributivism and Public Opinion: On the Context Sensitivity of
Desert.” Criminal Law and Philosophy 12 (1): 125–42.
Content courtesy of Springer Nature, terms of use apply. Rights reserved.

480
Criminal Law and Philosophy (2021) 15:463–480
1 3
Duus-Otterström, Göran. 2020. “Weighing Relative and Absolute Proportionality in Punishment.” In Of
One-Eyed and Toothless Miscreants, edited by Michael Tonry. Oxford: Oxford University Press,
30–50.
Duus-Otterström, Göran, and Erin I. Kelly. 2019. “Injustice and the Right to Punish.” Philosophy Com-
pass 14 (2): 1–10.
Elster, Jon. 1990. “Local Justice.” European Journal of Sociology 31 (1): 117–40.
Feinberg, Joel. 1999. “Justice and Personal Desert.” In What Do We Deserve?, edited by Louis Pojman
and Owen McLeod. Oxford: Oxford University Press, 70–83.
Feldman, Fred, and Brad Skow. 2020. “Desert.” In The Stanford Encyclopedia of Philosophy, edited by
Edward N. Zalta, Winter 2020. https:// plato. stanf ord. edu/ archi ves/ win20 20/ entri es/ desert/.
Fritz, Kyle G. 2019. “Hypocrisy, Inconsistency, and the Moral Standing of the State.” Criminal Law and
Philosophy 13 (2): 309–27.
Hirsch, Andrew von. 2009. “Proportionate Sentencing: A Desert Perspective.” In Principled Sentencing:
Readings on Theory and Policy, edited by Andrew Ashworth, Andrew von Hirsch, and Julian Rob-
erts. Portland: Hart, 115–25.
Husak, Douglas. 2008. Overcriminalization. Oxford: Oxford University Press.
Husak, Douglas. 2016. “What Do Criminals Deserve?” In Legal, Moral and Metaphysical Truths: The
Philosophy of Michael S. Moore, edited by Ferzan, Kimberly Kessler and Stephen J. Morse. Oxford:
Oxford University Press.
Kagan, Shelly. 2012. The Geometry of Desert. New York: Oxford University Press.
Kolber, Adam. 2020. “The Time-Frame Challenge to Retributivism.” In Of One-Eyed and Toothless Mis-
creants, edited by Michael Tonry. Oxford: Oxford University Press, 183–208.
Lee, Youngjae. 2009. “Recidivism as Omission: A Relational Account.” Texas Law Review 87: 571–622.
Matravers, Matt. 2020. “The Place of Proportionality in Penal Theory.” In Of One-Eyed and Toothless
Miscreants, edited by Michael Tonry. Oxford: Oxford University Press, 76–96.
Moore, Michael. 1998. Placing Blame. Oxford: Oxford University Press.
Moore, Michael. 2010. Causation and Responsibility: An Essay in Law, Morals, and Metaphysics.
Oxford: Oxford University Press.
Olsaretti, Serena. 2003. “Introduction: Debating Desert and Justice.” In Desert and Justice, edited by
Serena Olsaretti. Oxford: Oxford University Press, 1–24.
Rawls, John. 1999. A Theory of Justice. Revised ed. Oxford: Oxford University Press.
Ross, David. 2002. The Right and the Good. Oxford: Oxford University Press.
Ryberg, Jesper. 2004. Proportionate Punishment: A Critical Investigation. New York: Kluwer Academic.
Ryberg, Jesper. 2020. “Proportionality and the Seriousness of Crimes.” In Of One-Eyed and Toothless
Miscreants, edited by Michael Tonry. Oxford: Oxford University Press, 51–75.
Sher, George. 1987. Desert. Princeton: Princeton University Press.
Tadros, Victor. 2011. The Ends of Harm: The Moral Foundations of Criminal Law. Oxford: Oxford Uni-
versity Press
Walzer, Michael. 1983. Spheres of Justice. New york: Basic Books.
Publisher’s Note Springer Nature remains neutral with regard to jurisdictional claims in published
maps and institutional affiliations.
Content courtesy of Springer Nature, terms of use apply. Rights reserved.

1.
2.
3.
4.
5.
6.
Terms and Conditions
Springer Nature journal content, brought to you courtesy of Springer Nature Customer Service Center
GmbH (“Springer Nature”).
Springer Nature supports a reasonable amount of sharing of research papers by authors, subscribers
and authorised users (“Users”), for small-scale personal, non-commercial use provided that all
copyright, trade and service marks and other proprietary notices are maintained. By accessing,
sharing, receiving or otherwise using the Springer Nature journal content you agree to these terms of
use (“Terms”). For these purposes, Springer Nature considers academic use (by researchers and
students) to be non-commercial.
These Terms are supplementary and will apply in addition to any applicable website terms and
conditions, a relevant site licence or a personal subscription. These Terms will prevail over any
conflict or ambiguity with regards to the relevant terms, a site licence or a personal subscription (to
the extent of the conflict or ambiguity only). For Creative Commons-licensed articles, the terms of
the Creative Commons license used will apply.
We collect and use personal data to provide access to the Springer Nature journal content. We may
also use these personal data internally within ResearchGate and Springer Nature and as agreed share
it, in an anonymised way, for purposes of tracking, analysis and reporting. We will not otherwise
disclose your personal data outside the ResearchGate or the Springer Nature group of companies
unless we have your permission as detailed in the Privacy Policy.
While Users may use the Springer Nature journal content for small scale, personal non-commercial
use, it is important to note that Users may not:
use such content for the purpose of providing other users with access on a regular or large scale
basis or as a means to circumvent access control;
use such content where to do so would be considered a criminal or statutory offence in any
jurisdiction, or gives rise to civil liability, or is otherwise unlawful;
falsely or misleadingly imply or suggest endorsement, approval , sponsorship, or association
unless explicitly agreed to by Springer Nature in writing;
use bots or other automated methods to access the content or redirect messages
override any security feature or exclusionary protocol; or
share the content in order to create substitute for Springer Nature products or services or a
systematic database of Springer Nature journal content.
In line with the restriction against commercial use, Springer Nature does not permit the creation of a
product or service that creates revenue, royalties, rent or income from our content or its inclusion as
part of a paid for service or for other commercial gain. Springer Nature journal content cannot be
used for inter-library loans and librarians may not upload Springer Nature journal content on a large
scale into their, or any other, institutional repository.
These terms of use are reviewed regularly and may be amended at any time. Springer Nature is not
obligated to publish any information or content on this website and may remove it or features or
functionality at our sole discretion, at any time with or without notice. Springer Nature may revoke
this licence to you at any time and remove access to any copies of the Springer Nature journal content
which have been saved.
To the fullest extent permitted by law, Springer Nature makes no warranties, representations or
guarantees to Users, either express or implied with respect to the Springer nature journal content and
all parties disclaim and waive any implied warranties or warranties imposed by law, including
merchantability or fitness for any particular purpose.
Please note that these rights do not automatically extend to content, data or other material published
by Springer Nature that may be licensed from third parties.
If you would like to use or distribute our Springer Nature journal content to a wider audience or on a
regular basis or in any other manner not expressly permitted by these Terms, please contact Springer
Nature at
onlineservice@springernature.com