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The Immorality of Punishment: A Reply to Levy

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Notes

  1. For a recent, penetrating discussion of the pertinent issues, see Feldman (2010).

  2. Levy (2011).

  3. It is worth noting that (c) differs from the following proposition: (c*) it is a necessary condition of being culpably ignorant that one’s ignorance is a consequence of some earlier “benighting” act or omission, regarding which one was not ignorant.

    The additional, italicized clause renders (c*) essentially equivalent to (a). Hence using (c*) in an argument for (a) would be a blatant instance of begging the question. It is also worth noting that, although Levy attributes (c*) to Holly Smith, in her 1983 article Smith is committed only to (c) and not also to (c*). (She sometimes makes remarks that suggest (c*)―e.g., at 565–66―but her official account at 556 of what it is to be to blame does not warrant inferring (c*) from (c).).

  4. Davidson (1980): 4.

  5. Montmarquet (1993): 3, (1995): 44–45.

  6. Smith (1983): 547.

  7. Waller (2011).

  8. I am in fact willing to concede that there may be a kind of culpability that does not require control over that for which one is culpable. Many so-called attributionists, such as Smith (2005) and Scanlon (2008), hold this view, as do some others, and, for certain moral judgments of the kind with which they are concerned, I tend to agree with them. I maintain, however, that for the kind of culpability that, as strong retributivism declares, renders one deserving of punishment in particular, control―freedom-level control―is indeed a necessary condition (although, as I note at Zimmerman (2002): 558 and discuss further at 567–68―a matter to which Levy alludes in his fourth footnote―there is a sense in which the Argument from Luck attenuates this condition).

  9. I believe these terms were coined by me in Zimmerman (1987). Like some others, Levy attributes the term “resultant luck” to Nagel (1979), but I don’t think it’s there. This isn’t a big deal, of course. What Nagel has in mind by “luck in the way one’s actions and projects turn out” (Nagel 1979: 28) is precisely what I have in mind by “resultant luck”.

  10. For an especially interesting discussion, see Hanna (2012).

  11. Nagel (1979), Williams (1981).

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Zimmerman, M.J. The Immorality of Punishment: A Reply to Levy. Criminal Law, Philosophy 9, 113–122 (2015). https://doi.org/10.1007/s11572-013-9285-y

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