Criminal Quarantine and the Burden of Proof

Philosophia 47 (4):1095-1110 (2019)
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In the recent literature a number of free will skeptics, skeptics who believe that punishment is justified only if deserved, have argued for these two points: first, that the free will realist who would justify punishment has the burden of establishing to a high level of certainty - perhaps beyond a reasonable doubt, but certainly at least by clear and convincing evidence - that any person to be punished acted freely in breaking the law; and, second, that that level of evidence is simply not there. In this paper I make two parallel points against a quarantine theory of criminal justice. First, the free will skeptic who would justify universal criminal quarantine is also faced with a burden of proof, the burden to establish to a similarly high level that no human being ever acts freely. Second, there is not sufficient evidence for that conclusion either. I believe that the quandary that this creates for criminal justice can be resolved by distinguishing the methods associated with a particular approach from the approach itself: if our choice is between the methods of punishment and the methods of quarantine, the methods that constitute punishment are, I would argue, morally preferable to those that constitute quarantine.



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Michael Louis Corrado
University of North Carolina (System)

References found in this work

Free Will, Agency, and Meaning in Life.Derk Pereboom - 2014 - New York: Oxford University Press.
Living Without Free Will.Derk Pereboom - 2001 - New York: Cambridge University Press.
Living without Free Will.Derk Pereboom - 2001 - Philosophical Quarterly 53 (211):308-310.
Living without Free Will.Derk Pereboom - 2003 - Philosophy and Phenomenological Research 67 (2):494-497.
Punishment and Responsibility.H. L. A. Hart - 1968 - Philosophy 45 (172):162-162.

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