- Monday, September 23, 2019 at 4:30PM - 6:00PM
- Room 127
- Open To The Yale Community
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The Norm-Shift Theory of Punishment
In this lecture, Yaffe will offer a new philosophical theory of punishment and draw out some of its implications. Under the theory proposed, punishments necessarily involve a narrowing of the class of actions that are permissibly performed by the offender, and a prerogative on the part of the punisher to “target-harden,” or make it difficult or impossible for the offender to perform actions made impermissible by the punisher. In addition to providing a clear explanation for why tort damages are not punishments, this theory provides a novel argument for the impermissibility of highly invasive conditions of confinement; they exceed the target-hardening prerogative. It also implies that corporal punishments are (almost always) disproportionally harsh; they severely demean by making self-defense against bodily invasion impermissible. And it implies that the case of Smith v. Doe (2006), in which the Supreme Court upheld the constitutionality of ex post facto sex offender registration, was incorrectly decided; forced registration is punishment and so is impermissible if imposed ex post facto. In short, the theory provides a framework for conceptualizing our punishment practices that has potentially far-reaching implications.