AR 21

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25: APR 21

  • Shaw, Elizabeth. "Justice Without Moral Responsibility" (15)

Shaw, Elizabeth. "Justice Without Moral Responsibility"

  • Interested in the implications of MR scepticism. Specifically, wants to address retributivist concerns about the rights of offenders and those accused of crimes.
  • Many Concerns:
  • 1. Framing the Innocent
  • 2. Grossly disproportionate punishment
  • 3. Absence of due process safeguards (against evidentiary requirements for coercive treatment and right to challenge one's case).
  • Insight: Retribs aren't just advocating a view of just punishment, but also (often) defending a set of rights.
  • Major argument premise: There are examples in the law from non-retributive contexts (where moral desert doesn't even arise) to suggest that MR sceptics can address the "rights violation concerns" of retributivists.
  • 97: Sim/diff with Pereboom and Caruso.
  • Moral Responsibility and Retribution
  • Basis of retributive theory in punishment based on moral desert.
  • MR Scepticism doesn't rule out a "moral protest" account of MR (New in the course!!) - add to earlier idea of "accountability" Moore: "Suffering of the guilty intrinsically good."
  • C.S. Lewis' retributivist intuition: No "just cure" . Removing someone from a deserved punishment is unjust. It removes them from the sphere of justice altogether. Shaw rejects this.
  • Framing the Innocent
  • Presents the retributivist argument: Utilitarians would go along with framing an innocent person (under conditions described). But, compare to framing a non-responsible person, Timothy. Retributive desert doesn't arise, but we don't have trouble describing what is unjust about framing Timothy.
  • worries about the quarantine model: Public health law allows detention without finding of harm. Scarier analogy for rights violation worries.
  • Non-retribs can appeal to prohibitions against manipulation.
  • Benjamin Vilhauer (2013) Rawlsian account. Note rationale: For FW skeptic, no moral desert so it is a morally arbitrary thing about you. Should be excluded from veil. Claims contractors would rule out "framing the innocent". (Interesting digression on how it might be rational to allow the state to deceive the public under some circumstances. 104.
  • Proportionality
  • Rights violation concern: state might medicalize criminality and lose sight of proportionality.
  • Reply: This concern ignores how we actually currently protect the rights of individual where no moral desert arises (care of non-responsible persons). Stricter protection than utilitarian.
  • Due Process
  • Note: Dennett's view can justify either retributivism or non-retributivism (pause on this. It might matter to your papers.)
  • Again, Shaw plays here "major argument premise" -- there are lots of due process protections in contexts where moral desert and criminality do not arise.