Expanding The Scope of The Epistemic Argument to Cover Nonpunitive Incapacitation
Main Article Content
Abstract
A growing number of theorists have launched an epistemic challenge against retributive punishment. This challenge involves the core claim that it is wrong (intentionally) to inflict serious harm on someone unless the moral argument for doing so has been established to a high standard of credibility. Proponents of this challenge typically argue that retributivism fails to meet the required epistemic standard, because retributivism relies on a contentious conception of free will, about whose existence we cannot be sufficiently certain. However, the scope of the epistemic challenge should not be limited to doubts about free will or retributivism. In this article, I argue that the epistemic challenge should be expanded beyond the original focus on justifications of punishment. By “expanding the epistemic challenge” I mean demanding that other purported justifications for serious (intentional) harm be held to a high standard of credibility. To provide a focus for the argument, I will concentrate on the “Public Health Quarantine Model” defended by Gregg Caruso, but my arguments have wider implications beyond this model. A growing number of “abolitionist” theorists believe that punishment is wrong in principle. If retributive punishment, or punishment in general, were abandoned, we would need to ask, “how else should we respond to crime?”. My arguments suggest that all such abolitionists will have to face the same epistemic standard as penal theorists if they wish to replace punishment with the intentional imposition of non-punitive severe coercive measures.
Article Details
This work is licensed under a Creative Commons Attribution 4.0 International License.
By submitting his/her work to the Editorial Board, the author accepts, upon having his/her text recommended for publication, that Diametros applies the Attribution 4.0 International (CC BY 4.0) license to the works we publish. Under this license, authors agree to make articles legally available for reuse, without permission or fees. Anyone may read, download, copy, print, distribute or reuse these articles without asking prior permission from the publisher or the author, as long as the author and original source are properly cited. The author holds the copyright without any other restrictions. Full information about CC-BY: https://creativecommons.org/licenses/by/4.0/legalcode.
How to Cite
References
Anscombe E. (1982), “Medalist’s Address ‘Action, Intention and ‘Double Effect’,” Proceedings of the American Catholic Philosophical Association 56: 12-25.
Aquinas, Saint Thomas (c. 1273), “Whether It Is Lawful to Kill a Man in Self-Defense?” [in:] Summa Theologica, Second Part of the Second Part, Question 64, Article 7, URL = www.newadvent.org/summa/3064.htm#article7 [Accessed 16/04/23].
Ball D. (2011), “The Civil Case at the Heart of Criminal Procedure: In re Winship, Stigma, and the Civil-Criminal Distinction,” American Journal of Criminal Law 38 (2): 117-180.
Caruso G. (2020), “Justice without Retribution: An Epistemic Argument Against Retributive Criminal Punishment,” Neuroethics 13(1): 13-28.
Caruso G. (2021), Rejecting Retributivism: Free Will, Punishment and Criminal Justice, CUP, Cambridge.
Caruso G. (2021b), “Retributivism Free Will Skepticism and the Public Health-Quarantine Model: Replies to Corrado, Kennedy, Sifferd, Walen, Pereboom and Shaw,” Journal of Legal Philosophy 46(2): 161-215.
Chiesa L. (2020), “Selective Incompatibilism, Free Will, and the (Limited) Role of Retribution in Punishment Theory,” Rutgers University Law Review 71: 977-1001.
Corrado M. (2019), “Criminal Quarantine and the Burden of Proof,” Philosophia 47(4): 1095-1110.
FitzPatrick W. (2006), “The Intend/Foresee Distinction and the Problem of ‘Closeness,’” Philosophical Studies 128: 585-617.
Glazebrook P. (1995), “‘Permissible Killing: The Self-Defense Justification of Homicide’ by Suzanne Uniacke,” The Cambridge Law Journal 54(1): 210-211.
Hanna N. (2022), “Punitive Intent,” Philosophical Studies 179: 655-669.
Hanna N. (2023), “Against Legal Punishment,” [in:] The Palgrave Handbook on the Philosophy of Punishment, M. Altman (ed.), Palgrave Macmillan, London: 559-578.
Hoskins Z., Duff, A. (2021), “Legal Punishment,” [in:] The Stanford Encyclopedia of Philosophy, E. Zalta (ed.), URL = https://plato.stanford.edu/archives/sum2021/entries/legal-punishment/ [Accessed 28/03/24].
Jeppsson S. (2021), “Retributivism, Justification and Credence: The Epistemic Argument Revisited,” Neuroethics 14: 177-190.
Kaufman W. (2009), Justified Killing: The Paradox of Self-Defense, Rowman & Littlefield, Lanham.
Kolber A. (2018), “Punishment and Moral Risk,” University of Illinois Law Review 2, 487-532.
Leverick F. (2006), Killing in Self-Defense, OUP, Oxford.
Levy S. (1986), “The Principle of Double Effect,” Journal of Value Inquiry 20: 29-40.
McIntyre A. (2001), “Doing Away with Double Effect,” Ethics 111(2): 219-255.
Montaldi D. (1986), “A Defense of St Thomas and the Principle of Double Effect,” Journal of Religious Ethics 14: 296-332.
Pereboom D. (2001), Living without Free Will, CUP, Cambridge.
Ragavan S. (2014), “An Intermediate Standard of Proof in Serious Civil Cases in England and Wales,” Northern Ireland Legal Quarterly 65: 81-100.
Richard D. (2002), “The Moral Hardness of Libertarianism,” Philo 5: 226.
Sangero B. (2006), Self-Defense in Criminal Law, Bloomsbury Publishing, Oxford.
Shaw E. (2014) Free Will Punishment and Criminal Responsibility (PhD thesis), University of Edinburgh, URL = https://era.ed.ac.uk/bitstream/handle/1842/9590/Shaw2014.pdf?sequence=2&isAllowed=y.
Shaw E. (2021), “The Epistemic Argument Against Retributivism,” Journal of Legal Philosophy 46(2): 155-160.
Tadros V. (2011), The Ends of Harm: The Moral Foundations of Criminal Law, OUP, Oxford.
Uniacke S. (1994), Permissible Killing: The Self-Defense Justification of Homicide, CUP, Cambridge.
Vilhauer B. (2009), “Free Will and Reasonable Doubt,” American Philosophical Quarterly 46 (2): 131-140.
Waller B. (2011), Against Moral Responsibility, MIT Press, Cambridge.