Recent defences of abortion on demand have located the morally relevant difference between normal adult human beings and non-viable fetuses in the possession of personhood by the former but not by the latter. It is, so the story goes, morally wrong to kill innocent human beings because they are persons, but non-viable fetuses, though they be biologically human, are nevertheless not persons and may therefore be killed without doing anything morally wrong.

We argue in this essay that any society that organizes itself to punish criminals should in justice consider itself strictly liable to punish only those who are guilty in fact of the crimes for which they are punished. We argue that justice, not utility, is the basis of the obligation society has not to punish the innocent and that any society that is just would bind itself by statute to compensate the innocents it punishes by mistake. We hope to have (...) made it evident that when the justice of criminal punishment is the issue justice and strict liability are not incompatible; rather, we hope to have shown that one does not understand the nature of justice unless one recognizes that society is strictly liable and therefore owes compensation when, through no fault of its own, it punishes the innocent. (shrink)