Do Offenders Deserve Proportionate Punishments?

The aim of the paper is to investigate how retributivists should respond to the apparent tension between moral desert and proportionality in punishment. I argue that rather than attempting to show that the term ‘proportionate punishment’ refers to whatever penal treatment the offender morally deserves, retributivists should maintain two things: first, that a punishment is proportionate when it is commensurate to the seriousness of the crime; second, that offenders morally deserve proportionate punishments. This view requires adopting a local theory of desert as opposed to a holistic one. In the second part of the paper, I argue that there are indeed good reasons to adopt a local theory of desert. Once retributivism is seen through the lens of local desert, there is no obvious mistake in saying that offenders morally deserve punishments that are proportionate to the seriousness of their crimes.

Hegel’s Treatment of the Free Will Problem

G.W.F. Hegel offers a thorough, complex, and unique theory of free will in the Philosophy of Right. In what follows, I argue that Hegel’s conceptualization of free will makes the mistake of collapsing the possibility of organic freedom (the ability to act freely of causal determination) into the potential for moral freedom (the capacity to act in accordance with Reason). This article engages in three distinct tasks in making this argument. First, I provide a critical overview of Hegel’s conception of free will – namely, how he envisages the movement from the abstract, incomplete, and undeveloped will, to that of a concrete, complete, and developed one through the unfolding of Reason. Second, I introduce the contemporary debate regarding nomological determinism between libertarians and skeptics, of both the in compatibilist and compatibilist variety. I suggest that, in the context of the modern free will debate, Hegel is best categorized as a compatibilist as he both accepts causal determinism but remains committed to the notion that certain persons can act in concert with their own volition. Third, I argue that Hegel’s compatibilist understanding of free will has important and problematic consequences for legal theory, particularly normative jurisprudence. Compatibilism, generally, and Hegel’s particular version, substantiates the idea of basic moral desert which poses a serious threat to the possibility of moral progress from a retributive justice system to a consequentialist one.

Harm Reduction and Moral Desert in the Context of Drug Policy

The target of my discussion is intuitions lay people have about justice in the context of drug policy—intuitions that take on a more or less moral-desert-based shape. I argue that even if we think desert is the right measure of how we ought to treat people, we ought still be in favour of Harm Reduction measures for people who use drugs. Harm Reduction measures are controversial with members of the public, and much of the opposition seems to come from something like an appeal to a desert conception of justice—the notion that a just state of affairs is one in which everybody gets what they deserve, no more, no less. A recent study, for example, found that ‘moral outrage’ predicts a preference for prevalence reduction (criminal sanction, etc.) over Harm Reduction. The thinking seems to be that, since drug use is wrong, letting people who use drugs suffer and/or die as a consequence of their use is just. Aiding their health and safety, while perhaps compassionate, is unjust. I argue that there is a bad desert fit between using drugs and suffering avoidable harm even if using drugs is morally wrong. Many of the possible harms of drug use are socially/policy driven, and much problematic drug use is context dependent, not cleanly attributable to the decisions of the person who uses drugs. This means that even if drug use is wrong, people who use drugs deserve Harm Reduction policies, at minimum.

Independent living for all: renewing social care through a rights-based approach

The 1948 welfare state settlement perpetuated social care as stuck in the Poor Law. However, its capacity to deliver short-term political expedients has allowed it to remain in place and defy decades of efforts to reform it, creating an intellectual and moral desert. The concept of independent living developed by the disabled people’s movement could fill the vacuum and become the driving vision for a sustainable system of social care based on rights. This would require the dismantling of the pernicious eligibility system to be replaced by one based on claimable legal rights. The article sets out a route to achieve this, beginning by making the recording of need a reality. This in itself would have a transformative impact on how the system works, creating pressure for change by highlighting political responsibility.

The Perpetrators of Evil

This chapter outlines John Kekes’s attempt to develop a perpetrator-based account of evil that holds that evil entails undeserved harms inflicted on others. This leads him to distinguish between different types and degrees of harm, as well as to develop what he calls a ‘character-based’ morality against the historically dominant ‘choice-morality.’ However, he also claims that evil is not simply caused by the actions of individuals but emanates from the conditions of life itself, including contingency, indifference, and destructiveness. Because these induce the harm that Kekes associates with evil, he concludes that evil is in-built into human existence. However, while there is no escaping all forms of evil, Kekes introduces the notion of moral desert to argue that the job of morality is to face evil and ensure that it is suffered only to the extent that it is deserved based on the actions and hence character of the individual. The implication being that some individuals deserve to suffer the evils that befall them whereas others suffer evil without deserving it. The conclusion identifies a number of problems inherent in Kekes’s account.