The structure of rights forfeiture in the context of culpable wrongdoing

Philosophia 29 (1-4):57-88 (2002)
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Abstract

A person deserves a punishment if and only if he did a culpable wrongdoing and in virtue of this it is other-things-being intrinsically good that he receive punishment and if he were to receive that punishment then it would be through a non-deviant causal chain that includes the culpable wrongdoing. The wrongdoing may be institutional or pre-institutional depending on whether the moral right that the wrongdoer trespasses upon is dependent on a political institution’s goal. Desert in general, and punitive desert in particular, has a ground for which the agent is blameworthy or praiseworthy and it does not itself general a duty on anyone’s behalf. Both features make desert a different type of moral entity than a moral right. In addition, the two stand in a different relation to autonomy: rights protect a sphere in which autonomy may be exercises whereas desert, including punitive desert, provides a guide to the exercise of autonomy. They thus have different connections to one of the most important value-creating features of a person. This difference between desert and moral rights indicates the need for a separate analysis of each in the context of punishment.

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Stephen Kershnar
Fredonia State University

References found in this work

Locke and the right to punish.A. John Simmons - 1991 - Philosophy and Public Affairs 20 (4):311-349.
A consensual theory of punishment.C. S. Nino - 1983 - Philosophy and Public Affairs 12 (4):289-306.
Prima facie obligations.John Searle - 1978 - In Joseph Raz (ed.), Practical Reasoning. Oxford University Press. pp. 81--81.
Locke and the Right to Punish.A. Simmons - 1994 - In A. John Simmons, Marshall Cohen, Joshua Cohen & Charles R. Beitz (eds.), Punishment: A Philosophy and Public Affairs Reader. Princeton University Press. pp. 219-258.

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