The Elementary epistemic arithmetic of the law II: the inadequate resources of moral theory for dealing with the criminal law

Abstract

In this lecture, I identify two key areas of the theory of crime and punishment that are demonstrably not derivable from deontological or retributive moral theory. In the first section, I will show that deontological moral theories are helpless when faced with the challenge of either justifying or deriving a standard of proof for criminal trials. In the second section, I will show that existing moral theories of punishment (especially Retributivism) in fact are nothing of the sort, in that they lack the resources to justify or derive a schedule of punishments or even a nonarbitrary definition of the just deserts for any given crime. Put differently, while Deontic theories stress the importance of convicted defendants receiving their just deserts, they have no machinery for figuring out what the just deserts are for any given crime. This pair of arguments is an ambitious agenda so let me turn to it straightaway