It is commonly held that we wrong someone if we punish them without first determining whether they are guilty through the process of a sufficiently fair and reliable procedure. This wrong is best explained by pre-institutional moral procedural rights. Recently, Christopher Heath Wellman has argued for the skeptical conclusion that there are no such rights, challenging a widely held orthodoxy. I propose two novel grounds for pre-institutional moral procedural rights and so answer Wellman's skepticism. First, we have rights not to be subject to punitive systems that do not include specific sorts of reliable procedures because otherwise we are subject to unreasonable risks of undeserved punishment. Second, not only do we have rights that others not harm us or unreasonably risk harming us, we have rights that they control for avoiding wrongfully harming us across relevant close possible worlds.
Thanks to Christopher Heath Wellman for discussion and to two anonymous referees at this journal for their comments.
1. Throughout the paper I assume a broadly Anglophone legal setting and appeal to intuitions developed in such a setting. But the rights at stake should generalize to legal settings where trials look very different. This discussion would benefit greatly from a comparative perspective, which unfortunately I do not have the space to provide here. Thanks to an anonymous referee for highlighting this important point.
2. Wellman, Christopher Heath, Procedural Rights, 20 Legal Theory 286, 287 (2014).
4. Robert Nozick, Anarchy, State, and Utopia (1974); R.A. Duff, Trials and Punishments (1991); Alexander, Larry, Are Procedural Rights Derivative Substantive Rights?, 17 Law & Phil. 19 (1998). For a different perspective grounding some procedural constraints in the rule of law, see Ho, Hock Lai, The Criminal Trial, the Rule of Law and the Exclusion of Unlawfully Obtained Evidence, 10 Crim. Law & Phil. 106 (2016).
5. Philip Pettit, The Robust Demands of the Good (2015).
6. Wellman, supra note 2, at 290.
7. On Wellman's rights forfeiture view of punishment, see Wellman, Christopher Heath, The Rights Forfeiture Theory of Punishment, 122 Ethics 371 (2012). Much of the discussion below presumes at least a weak rights forfeiture view, which I endorse, but does not presume the strong rights forfeiture view, which I do not.
8. On the distinctions between fact-relative, evidence-relative, and belief-relative permissibility, see 1 Derek Parfit, On What Matters (2012), at 150. On wrongness as a fact-relative matter, see Graham, Peter A., In Defense of Objectivism About Moral Obligation, 121 Ethics 88 (2010). Of course, not everyone conceives of wrongness and blameworthiness in this way but Wellman and I both do; see Wellman, supra note 2, at 297.
9. Wellman, supra note 2, at 288–289.
10. To be clear, this does not mean that what legal or post-institutional moral rights people might have under a particular regime cannot serve as a point of comparison between institutional alternatives. The point is that we cannot take the existence of such rights to constrain our choices between alternatives: the fact that you would have a right to P under regime A tells us nothing about whether choosing regime B, where you are not provided P, violates your rights and so tells us nothing about whether choosing regime B is unjustified. That having a right to P under A is a good-making feature of A is independent of whether opting for B violates your rights.
11. Finkelstein, Claire, Is Risk a Harm?, 151 U. Pa. L. Rev. 963 (2003); Oberdiek, John, Towards a Right Against Risking, 28 Law & Phil. 367 (2009).
12. I use “harm” in a non-moralized sense to mean the setback of interests. Some philosophers prefer to use it such that only wrongful setbacks are harmful. This seems to me quite mistaken, although I admit that there may be a constraint such that very minor setbacks are not properly thought of as harm. Thanks to an anonymous referee for pushing me to clarify this.
13. The relevant risk is risk of wrongful punishment: if I have culpably committed an offense and so forfeited my right against punishment, that punishment is not wrongful and so any risk of that punishment is not unreasonable, as Wellman emphasizes in the Sandra example.
14. Wellman, supra note 2, at 292.
15. Wellman, Christopher Heath, Samaritanism and the Duty to Obey the Law, in Christopher Heath Wellman & A. John Simmons, Is There a Duty to Obey the Law? 2, 6–10 (2005).
16. As an anonymous referee emphasized, this is not quite the same as “meting out hard treatment,” which is how I originally framed the problem. Note, however, that I am not claiming that pre-trial detention in general is problematic but that “lengthy and indefinite” detention is. The details will depend on how the various values that undergird the justification of pre-trial detention are balanced against the harms imposed by such detention.
17. Personal correspondence.
18. Wellman, supra note 2, at 290.
20. Pettit, supra note 5. A look at the text reveals the range of theoretical commitments that Pettit draws upon, including in ethics, action theory, and other domains. However, I think that the idea of robustness—of controlling for outcomes in one's deliberations through dispositions of concern—can be extracted from Pettit's broader theory, including his conclusions about what degree of robustness is required for certain goods and about political philosophy. This is why I think it is fair below to present my argument as a particular way of explaining a general constraint of respectful treatment that others discussing punishment have appealed to without using Pettit's framework. Teasing out the nuances of the idea independent of all of Pettit's arguments is a large task that must be put aside for our purposes here.
21. Simmons, A. John, Locke and the Right to Punish, 20 Phil. & Pub. Aff. 311, 341 (1991). Original emphasis. Simmons attempts to explain this idea of respect in contractarian terms by appealing to what equal subjection to a system of norms requires, as well as in Kantian terms by appealing to not being used as a mere means.
22. Regarding precise grounds, Duff is a notable exception, offering a detailed argument that connects particular features of punitive systems to the demands of respect for others in a Kantian sense, as autonomous moral agents whom the law calls to account; see Duff, supra note 4, at 6. In distinct contrast, my focus is on how we must treat others when we risk harming them.
23. Pettit, supra note 5, at 35.
24. Cocking, Dean & Oakley, Justin, Indirect Consequentialism, Friendship, and the Problem of Alienation, 106 Ethics 86 (1995).
25. Pettit, supra note 5, at ch. 5.
26. Id. at 108.
27. Seth Lazar, Risky Killing, J. Moral Phil. (forthcoming); Lazar, Seth, Risky Killing and the Ethics of War, 126 Ethics 91, 91–117 (2015). Cf. Pettit, supra note 5, at 175–176.
28. Lazar, Risky Killing, J. Moral Phil. (forthcoming), at 8.
29. Cf. Oberdiek, supra note 11, at 373ff.
30. Lazar, Risky Killing, J. Moral Phil. (forthcoming), at 8–9.
31. Note that the only role of this case is to illustrate robust goods and how to consider them. Their particular role in justifying procedural rights is articulated below and the contrast with other ways of accounting for similar concerns, like focusing solely on levels of risk, is emphasized at that point. These other methodologies may well account for the Allie case just as well as robust goods do; the point is the distinct roles they play with respect to punishment. Thanks to an anonymous reviewer for pushing me to clarify this point.
32. There is a fourth possibility: Allie checks thoroughly but Bruce is undiscoverable and he dies when she demolishes the building. My inclination is to say of this case that Allie gave Bruce the good of security—she surely did not violate any right he has to security—because she did her due diligence but that she still violates his right to life (since he had done nothing to forfeit or waive it). Bruce was as secure as Allie could make him but security is not everything. The way Pettit defines robust goods seems to make this impossible, though, because one can only give someone a robust good when one also gives the thin good and Allie did not secure the thin good of avoiding wrongfully harming Bruce. This is one place where our theory of robust goods can come apart from Pettit's but it is also tangential to our discussion of procedural rights. One thing we can agree on is that Allie expressed the concern that security requires and that she treated him as a person with equal status in her community, as far as she was able. (Analogously, there may be cases where someone acts as a friend should, and so remains your friend, even when she cannot give you the thin good of care for reasons outside her control, like if she suffers a debilitating accident.)
33. Lazar addresses some of these concerns in the case of security and, of course, Pettit considers many in the general case of robust goods. It is worth noting that Wellman pursues similar sorts of debunking strategies against other proposed grounds for procedural rights, so he may well be amenable to pressing them here as well.
34. Lazar mostly refrains from discussing a right to security because his concern is with its exacerbating or aggravating role but he says that a right to security is plausible. See Lazar, Risky Killing, J. Moral Phil. (forthcoming), at 7 n.20, 16.
35. Wellman, supra note 2, at 298 raises a similar complaint against a publicity constraint: it may be good for justice to be done publicly but that is distinct from having a right to public justice.
36. Alexander, supra note 4, at 33.
37. This distinction could collapse if pro tanto wrongs of the sort referred to in Lazar's definition of security are restricted to violations of essential interests. But this seems too strong: because of my property rights it is pro tanto wrongful to harm my property, for example by scratching my car, but having an unscratched car seems in no way essential to my well-being. Some wrongs are minor.
38. Restricting the right to security to cases of essential interests answers an argument from Wellman, supra note 2, at 296–297. He gives the example of Elizabeth and Philippa: Philippa takes twenty dollars from Elizabeth but later Elizabeth, not knowing Philippa had taken her money and fully intending to steal from Philippa, takes her own twenty dollars right back. Wellman contends that Elizabeth has done nothing wrong (although she is blameworthy). If a right to security covered wrongful harms of any kind, it might run afoul of this case (assuming you agree with Wellman's assessment). But while Elizabeth might be undermining Philippa's interest in security, since it only involves a small amount of money Philippa's right to security does not cover such a case and so Elizabeth has not violated Philippa's rights in this case.
39. Note also that the duty correlated to this right holds even when someone in the state of nature has done their fair share to establish institutions that would better protect and respect this right. Consider an analogy to emergency aid services, an issue of importance for Wellman's Samaritan justification for the state. One implication of the pre-institutional rights that people have is that they be aided when they are in danger and aid is of little cost to bystanders. The only way to secure these rights generally in our actual conditions, where natural disasters and accidents and so forth are a regular, if unpredictable, feature of the world, is to set up institutions like police and firefighters and paramedics. Imagine someone who has done their fair share in the state of nature to set up such institutions but, because other people are not contributing, such institutions do not exist. This does not mean that if this person comes across a situation of easy rescue that she does not have a duty to aid the person in harm's way. The institutional duty and the individual duty may rest in the same concern for the person as an individual who matters, but fulfilling one does not entail fulfilling the other. Similarly, then, even the person who has done her fair share to set up fair punitive institutions but remains in a state of nature still has the duty not to make others insecure in their essential interests.
40. The distinction between pro tanto and prima facie wrongs matters a great deal for our purposes here. A pro tanto wrong is genuinely wrongful but it may be outweighed all things considered, so it may be justified to inflict the wrong. A prima facie wrong is only wrong in usual circumstances; in some circumstances it may not be wrong at all. A prima facie wrong can become pro tanto wrong when we consider it in particular circumstances. The point, then, is that since intentionally harming is usually wrong, absent special circumstances, to show appropriate concern for avoiding actually wronging someone when we intentionally harm them, we have to be very sure that the special circumstances are met.
41. This is perhaps more complicated in the case of defensive harm, where time is often a factor and so following procedures may be self-defeating. That is not a concern in our context of punishment. But notice that even in the context of defensive harm, the time crunch is why we want the people who are most likely to have to deal defensive harm to follow strict procedures in their training. We try to inculcate the appropriate procedures into the level of reflex precisely so the procedures can control the imposition of harm even under severe time constraints. This is why police practice shooting courses where some targets are innocents: it builds the procedure of checking for innocence (if at a shallow level of appearance) into the moment where wrongful harm is most likely and most devastating.
42. Compare Ronald Dworkin, Taking Rights Seriously (1978), at 13.
* Thanks to Christopher Heath Wellman for discussion and to two anonymous referees at this journal for their comments.
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