The Difficulty of Tolerance: Essays in Political Philosophy

This essay will consider how some central issues that Carlos Nino discussed in his writings on the philosophical theory of punishment are relevant to the difficult empirical and political problem of building a legal order that preserves the rule of law and provides remedies for victims of past human rights abuses. Carlos Nino was remarkable in combining philosophical scholarship with important and courageous contributions to this difficult political problem. My first contact with him came when he submitted his article “A Consensual Theory of Punishment”to the journal Philosophy and Public Affairs, of which I was then an associate editor. This article attempts to provide a justification for criminal penalties that avoids retributivism but also explains why a system of penalties cannot be justified solely on the basis of its deterrent effects. It was, for me, an exciting paper to read. I very much agreed with the main line of Nino's theory, although I thought that there were certain rather subtle ways in which it went astray. We had a brief but stimulating correspondence about these issues. In retrospect it is striking—indeed, to someone like me who has spent his adult life in the sheltered academy it is truly amazing—that the seemingly academic issues discussed in Nino's article, including the rather subtle point on which we disagreed, turned out later to be of very considerable practical importance.Philosophical reflection on the problem of punishment has focused on two general questions: the justification for punishment and the limits on its legitimate application. Theoretical reflection of this kind bears on the practical problems we are discussing in at least four ways:

1.	It bears on the grounds and interpretation of the prohibition against retroactive punishment.
2.	It bears more generally on the state of mind required in an offender as a precondition of legal guilt.
3.	It bears on the permissibility of selective punishment. Nino stated, for example, in his response to Diane Orentlicher in the Yale Law Journal that only a retributivist theory of punishment requires punishing all of

-219-