Punishment and Moral Risk

For every interesting moral question, we should have at least some doubt that we know the right answer. Legal theorists ignore this moral uncertainty at their peril. To take one important example, for retributivists to inflict punishment, they must believe not only that a defendant is guilty but that all other prerequisites for deserved punishment are satisfied as well. They must believe offenders have free will, even though philosophers have debated the topic for centuries. They must believe offenders can be punished proportionally, even though no one has convincingly determined how to assess proportionality. And they must believe it appropriate to make offenders suffer in response to the suffering they caused, even though some find this view barbaric.

These retributivist commitments, along with several others, are clearly controversial. One would be hard-pressed to believe a single one—let alone the conjunction—with the 95% or 99% confidence frequently attributed to the beyond-a-reasonable-doubt standard used to assess guilt. Reasonable retributivists, I argue, face too much uncertainty to justify punishment under the standard of proof they would likely set for themselves. Consequentialists, by contrast, are less vulnerable to this challenge. They can accept greater risk when punishing because they face countervailing risk by failing to adequately punish.

More generally, I argue that we hold not just beliefs but “portfolios of beliefs” that can exacerbate or hedge moral risks. These portfolios sometimes do a better job of explaining our moral and legal views than existing theories, and I show how “epistemic hybrid” theories that combine retributivism and consequentialism can avoid the inconsistencies facing current hybrid theories. We are not necessarily retributivists or consequentialists but, say, 60% retributivists or 90% consequentialists. Portfolios of beliefs can also help us understand other areas of law and morality, such as the perplexities of threshold deontology and the puzzles of tort law. Indeed, portfolios of beliefs may not only explain our beliefs but also offer normatively appealing alternatives to our existing theories that fail to take moral risk into account.

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