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In Playing Fair, Richard Dagger provides a unified theory of political obligation and the justification of punishment that takes its bearings from the principle of fair play. Dagger argues that members of a just polity have an obligation to obey its laws because they have an obligation of reciprocity or fair play to one another.

Although few want to deny the importance of individual rights, many political theorists have recently complained that their importance has been greatly over-emphasized. The result, as they see it, is an excessive individualism that blinds people to the needs of the community or state to which they belong. We should be less concerned with our rights, in their view, and more concerned with our responsibilities. Those who advanced this view typically argue against liberalism. In Civic Virtues, a compelling addition to the distinguished Oxford Political Theory series, Richard Dagger takes a different approach. Finding the proper relationship between rights and responsibilities requires us not to choose between liberalism and republicanism, he argues, but to unite them in a republican form of liberalism.

While much has been written on both political obligation and the justification of punishment, including numerous essays in recent years that approach one or the other topic in fair-play terms, there has been no sustained effort to link the two in a fair-play theory of political obligation and punishment. In Playing Fair, Richard Dagger aims to fill this gap and provide a unified theory of political obligation and the justification of punishment that takes its bearings from the principle of fair play. To do this, he first establishes the principle of fair play - the idea that citizens in a cooperative venture have obligations to each other to shoulder a fair share of the burdens because they receive a fair share of the benefits of cooperation - as the basis of political obligation. Dagger then argues that the members of a reasonably just polity have an obligation to obey its laws because they have an obligation of reciprocity or fair play to one another. This theory of political obligation provides answers to fundamental and still debated questions about how to justify punishment, who has the right to carry it out, and how much to punish. Playing Fair brings two long-standing concerns of political and legal philosophy together to rebuke those who deny the possibility of a general obligation to obey the law, to defend the link between political authority and obligation, and to establish the proper scope of criminal law. ; https://scholarship.richmond.edu/bookshelf/1299/thumbnail.jpg

This chapter rests on two assumptions, at least one of which is controversial. The first is that something is wrong when a society imprisons as many people as the United States now does. According to a widely published columnist, George Will, the rate of imprisonment was about 100 per 100,000 Americans until the 1970s. Since then the rate has shot up, to the point where "700 per 100,000" are now in prison; "America," Will reported in 2013, "has nearly 5 percent of the world's population but almost 25 percent of its prisoners." It is possible, of course, that these figures are just where they ought to be, or even too low. When a professed conservative such as Will takes them to be alarming, however, there seems little need to defend the assumption that something is amiss. The second assumption is that the principle of fair play underpins the justification of legal punishment. This assumption is clearly controversial, for only a few scholars nowadays justify punishment in terms of fair play. For present purposes, however, I shall simply point to the defenses I have offered elsewhere and respond to criticisms of the fair-play approach only in passing. In effect, I shall be presenting an oblique defense of this approach by demonstrating how it provides a helpful way of addressing the problem of excessive incarceration. In doing so, I shall also address the concern that democratic societies are especially prone to this problem because of their tendency to foster what has come to be known as penal populism. My argument is that democracy leads to mass imprisonment only when an otherwise democratic polity neglects what Albert Dzur calls the "moral dimension" of democracy: "Because citizens are lawgivers as well as law abiders, they have a special obligation in a republic to be vigilant to the possibility that their laws are unfairly burdening some over others, that their laws are exclusionary or discriminatory." Dzur makes no explicit reference to the principle of fair play here or elsewhere in his book, but I hope to show that the vigilance he calls for requires attention to that principle.

One of the abiding concerns of the philosophy of law has been to establish the relationship between law and morality. Within the criminal law, this concern often takes the form of debates over legal moralism--that is, "the position that immorality is sufficient for criminalization" (Alexander 2003: 131). This paper approaches these debates from the perspective of the recently revived republican tradition in politics and law. Contrary to what is usually taken to be liberalism's hostility to legal moralism, and especially to attempts to promote virtue through the criminal law, the republican approach takes the promotion of virtue to be one of the necessary aims of a polity. The virtue in question, however, is a specifically civic virtue, and calling for its promotion does not entail that the criminal law should be a straightforward reflection of the conventional morality of a society. What republicanism offers, instead, is a form of legal moralism resting on a distinctively civic morality that lays particular stress on such virtues as fair play and tolerance.

Abstract
In this article, I try to show how the principle of fair play provides insight into the problem of excessive incarceration. I also address the concern that democratic societies are especially susceptible to this problem because of their tendency to foster what has come to be called penal populism. My argument is that democracy leads to mass imprisonment only when an otherwise democratic polity neglects what Albert Dzur calls the "moral dimension" of government by the people. In particular, this moral dimension requires an understanding of the polity as a cooperative enterprise according to rules that specify the terms of fair play. Mass incarceration of the kind that now characterizes the United States is a sign that this polity is failing to play fair when it imprisons many of those who violate its laws.

Retributivists thus face a difficult challenge. Either we must go against the social grain, and perhaps our own intuitions, by insisting that a criminal offense carry the same penalty or punishment no matter how many previous convictions an offender has accrued; or we must find a way to justify the recidivist premium. I shall take the second route here by arguing that recidivism itself is a kind of criminal offense. In developing this argument, I shall rely on Youngjae Lee's insightful analysis of "recidivism as omission." I shall complement his analysis, however, by grounding it in a conception of criminal law as a cooperative practice-a grounding that Lee's defense of the recidivist premium otherwise lacks. In doing so, I shall incorporate Lee's "recidivism as omission" into the familiar theory that justifies punishment as a matter of fair play.

Oddness aside, however, I think there is much to recommend the attempt to restore rehabilitation to a central place in the practice of punishment. Nor do I think that rehabilitation must displace retribution in that practice. Properly understood, the two aims are not only compatible but also complementary. If we are to understand them properly, though, we shall need to see them as components of a theory of punishment that is grounded in considerations of fair play. Such a theory also has the advantage of offering guidance with regard to other controversial matters of penal policy, such as the question of whether prisoners should have the right to vote, or whether recidivists should receive harsher sentences than first-time offenders, or whether prisons should be operated privately or publicly.