In recent years, the counterintuitive claim that criminals consent to their own punishment has been revived by philosophers who attempt to ground the justification of punishment in some version of the social contract. In this paper, I examine three such attempts—“contractarian” essays by Christopher Morris and Claire Finkelstein and an essay by Corey Brettschneider from the rival “contractualist” camp—and I find all three unconvincing. Each attempt is plausible, I argue, but its plausibility derives not from the appeal to a social contract but from considerations of fair play. Rather than look to the social contract for a justification of punishment, I conclude, we would do better to rely on the principle of fair play.

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Copyright © 2011, Ohio State University's Michael E. Moritz College of Law. This article first appeared in Ohio State Journal of Criminal Law 8:2 (2011), 341-368.

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