Proportionality’s Function

Abstract

In this paper I argue that punishment should be proportional to desert; that desert turns solely on culpability and not on results: that culpability is a function of what the actor perceives are the risks of his act to others’ interests and the reasons he perceives that might justify, excuse, or aggravate taking those risks; that because culpability is a complex function, ordinally ranking acts in terms of culpability is quite difficult; that converting the ordinal ranking into cardinal measures of deserved punishment must perforce be controversial; and that deserved punishment, which is deserved suffering, must somehow deal with the fact that the actor may have already suffered undeservedly (or may have benefitted undeservedly).

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Notes

  1. 1.

    I believe this is the view of retributivists such as Michael Moore and Leo Zaibert. See, e.g., Michael S. Moore, “Responses and Appreciations, “in Legal, Moral, and Metaphysical Truths: The Philosophy of Michael S. Moore, K.K. Ferzan and S.J. Morse, eds. (Oxford: Oxford University Press, 2016), 444-448; Leo Zaibert, Rethinking Punishment (ALdershot: Ashgate Publishing, 2018). See Also Mitchell M. Berman, “Modest Retributivism,” in Legal, Moral, and Metaphysical Truths, 35. It is surely my view.

  2. 2.

    See Larry Alexander and Kimberly Kessler Ferzan, Crime and Culpability: A Theory of Criminal Law (Cambridge: Cambridge University Press, 2009).

  3. 3.

    My frequent co-author, Kim Ferzan, is obviously one. See id. But so, for example, was Sanford Kadish. See, e.g., “The Criminal Law and the Luck of the Draw,” 84 J. Criminal Law and Criminology 1501 (1994).

  4. 4.

    Matters would be different if the search for the ring were viewed by Sam, Sue, and their parents as a lottery, with the yard to search as the lottery ticket and a prize awarded only to the one who finds the ring. As I have imagined the situation, however, it does not have those characteristics.

  5. 5.

    See Alexander and Ferzan, supra note 2, at chs, 2,4.

  6. 6.

    I believe that constitutive luck, if it undermines desert, also undermines all normativity, with all “oughts” translatable into “was,” “is,” and “will be.” See Larry Alexander, “The Most Persuasive Frankfurt Example and What It Shows: Or Why Determinism is Not the Greatest Threat to Moral Responsibility,” 4 Open J. Phil. 141 (2014). See also Larry Alexander, “Hard Incompatibilism and the Rejection of Moral Responsibility: A Skeptical Look at an Optimistic Account, “http://ssrn.com/abstract=2909237.

  7. 7.

    Obviously, there is more to say about circumstantial luck than I have said or will say here. One thing to note, however, is that the closest possible world to which theorists advert when they claim that there is a truthmaker to counterfactuals about what people would have done had circumstances differed is that the closest possible world will itself be the product of circumstantial luck. What Hilda would have done had a Nazi-fleeing Jew sought refuge with her will itself reflect what she would have done in some other circumstances that did not obtain, and so on and so on.

  8. 8.

    Obviously, this raises the issue of the truth of counterfactuals.

  9. 9.

    See Alexander and Ferzan, supra note 2, at 184–185.

  10. 10.

    I omit here the issue of whether the actor’s views about justifications, mitigations, and aggravations are material to his culpability, an issue that is much debated. For a sample of that debate, see Larry Alexander and Kimberly Kessler Ferzan, Reflections on Crime and Culpability: Problems and Puzzles (Cambridge: Cambridge University Press, 2018), chap. 6.

  11. 11.

    See Alexander and Ferzan, supra note 10, at chap. 8.

  12. 12.

    See id.

  13. 13.

    See id.

  14. 14.

    This was one problem with Victor Tadros’s account of the proper level of punishment. See Larry Alexander, “Can Self-Defense Justify Punishment?.” 32 Law and Phil. 159 (2013).

  15. 15.

    See Alexander and Ferzan, supra note 10, at ch. 10. See also Larry Alexander, “Retributive Justice,” in S Olsaretti, ed., Oxford Handbook of Distributive Justice (Oxford: Oxford University Press, 2018).

  16. 16.

    Again, with the qualification that there are often good reasons to punish less than is deserved, though that will entail the loss of an intrinsic good.

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Alexander, L. Proportionality’s Function. Criminal Law, Philosophy (2021). https://doi.org/10.1007/s11572-021-09564-x

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Keywords

  • Proportionality
  • Punishment
  • Culpability
  • Suffering
  • Risks