Patrick Tomlin

Retributivism is often explicitly or implicitly assumed to be compatible with the harm principle, since the harm principle (in some guises) concerns the content of the criminal law, while retributivism concerns the punishment of those that break the law. In this essay I show that retributivism should not be endorsed alongside any version of the harm principle. In fact, retributivists should reject all attempts to see the criminal law only through (other) person-affecting concepts or “grievance” morality, since they should endorse the criminalization of conduct that is either purely self-harming or good for somebody and bad for nobody (i.e., Pareto improvements)

In his book Democratic Authority, David Estlund puts forward a case for democracy, which he labels epistemic proceduralism, that relies on democracy's ability to produce good – that is, substantively just – results. Alongside this case for democracy Estlund attacks what he labels ‘utopophobia’, an aversion to idealistic political theory. In this article I make two points. The first is a general point about what the correct level of ‘idealisation’ is in political theory. Various debates are emerging on this question and, to the extent that they are focused on ‘political theory’ as a whole, I argue, they are flawed. This is because there are different kinds of political concept, and they require different kinds of ideal. My second point is about democracy in particular. If we understand democracy as Estlund does, then we should see it as a problem-solving concept – the problem being that we need coercive institutions and rules, but we do not know what justice requires. As democracy is a response to a problem, we should not allow our theories of it, even at the ideal level, to be too idealised – they must be embedded in the nature of the problem they are to solve, and the beings that have it.