GROUNDING	PROCEDURAL	RIGHTS N.	P.	Adams I.	INTRODUCTION If	Mary	culpably	commits	a	crime	and	then	is	punished	without	having	been found	guilty	of that crime through the	process	of a trial, is	Mary	wronged? Intuitively, yes. That is,	Mary	has a right not to be	punished absent a trial, even	for	things	that	she	has	done	and	deserves	to	be	punished	for.1	The	most commonsensical	and	direct	way	to	explain	this	wrong	is	to	appeal	to	Mary's pre-institutional	moral	right:	Mary	simply	has	such	a	right	in	virtue	of	what morality	requires	in	the	treatment,	particularly	in	the	punishment,	of	others. Such	a right	would	be	one	of	a class	of "general,	moral, judicial,	procedural rights."2	This	class	of rights is	often taken to	make	up	an important	part	of rule of law and to explain why our punitive institutions must take a particular	shape:	why	we	must	have	trials,	juries,	judges,	appeals,	competent legal representation, a right to present evidence, and so on. Absent such 1. Throughout the paper I assume a broadly Anglophone legal setting and appeal to intuitions developed in such a setting. But the rights at stake should generalize to legal settings where trials look very different. This discussion would benefit greatly from a comparative perspective, which unfortunately I do not have the space to provide here. Thanks	to	an	anonymous	referee	for	highlighting	this	important	point. 2.	Christopher	Heath	Wellman,	Procedural	Rights,	20	LEGAL	THEORY	286,	287	(2014). 2 procedures,	our	punitive	institutions	are	unjustified	because	they	violate	our (in	short)	procedural	rights. In a recent article, Christopher Heath Wellman argues for the surprising	claim	that there	are	no	procedural rights.3 His	characteristically clear and challenging argument goes against the orthodox and seemingly uncontested consensus that such procedural rights exist and are fundamental constraints on our legal systems. Wellman effectively undermines	potential	grounds	for	procedural	rights	that	other	theorists	have offered, so concludes that, in lieu of other possible grounds, we have no procedural	rights. Here	I	offer	two	novel	grounds	for	such	rights	and	so	conclude	that	we do	have	some	procedural	rights.	As	with	other	theorists	who	have	addressed this	problem,	including	Robert	Nozick,	R.	A.	Duff,	and	Larry	Alexander,	I	focus on	the	ideas	that	procedures	protect	us	against	unreasonable	risks	and	that using procedures can instantiate a certain kind of respectful treatment.4 Although I reject his general skeptical conclusion, Wellman forces us to 3.	Ibid. 4. ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA (1974); R.A. DUFF, TRIALS AND PUNISHMENTS (1991); Larry Alexander,	Are Procedural Rights Derivative Substantive Rights? 17 LAW	& PHIL.	19	(1998).	For	a	different	perspective	grounding	some	procedural	constraints	in	the rule of law, see Hock Lai Ho, The Criminal Trial, the Rule of Law and the Exclusion of Unlawfully	Obtained	Evidence,	10	CRIM.	LAW	&	PHIL.	106	(2016). 3 reconsider	both	which	procedural	rights	we	have	and	in	what	way	people	are wronged	when	such	rights	are	violated. In Section II I sketch Wellman's position and extrapolate some desiderata for an adequate theory of procedural rights. The details of his arguments	are	considered	more	fully	throughout	the	article	as	I	address	his concerns.	Section	III	focuses	on	the	idea	that	our	right	against	unreasonable risks	grounds	a	right	to	an	institutionalized	system	of	punishment	that	must include	certain	procedures.	Section	IV	applies	Philip	Pettit's	notion	of	robust goods to punishment and argues that we have a right to security that obligates others to follow certain procedures in some circumstances.5 I conclude	that	there	are	two	distinct	grounds-risk	protection	and	security- from	which	we	can	derive	procedural	rights	of	two	related	but	interestingly distinct	kinds. II.	THE	SKEPTICAL	CHALLENGE Wellman's	view	is	nuanced	and	can	easily	be	mistaken	for	more	implausible nearby	views.	To	be	clear	about	his	position,	it	is	first	important	to	make	two distinctions: first,	between	moral	and	legal	rights	and	second,	between	preinstitutional	and	post-institutional	moral	rights.	Wellman	does	not	deny,	for example,	that	United	States	citizens	have	a	positive	legal	right	against	double jeopardy and he does not deny that such a legal right	may very	well have 5.	PHILIP	PETTIT,	THE	ROBUST	DEMANDS	OF	THE	GOOD	(2015). 4 moral	grounds,	such	as	concerns	of	reliability.	Nor	does	he	deny	that	once	an institution	exists	and	has	committed	itself	not	to	prosecute	citizens	twice	for the	same	crime,	this	commitment	can	generate	a	moral	right	against	double jeopardy.	What	Wellman denies is the existence of pre-institutional moral procedural	rights. Wellman begins by arguing that we do not have a pre-institutional moral right against double jeopardy. It is clear that a right against double jeopardy provides us with some protections, particularly by preventing a sort	of	harassment	that	could	unreasonably	interfere	with	citizens'	lives	and that	might	lead	to	more	innocents	being	convicted	or	pleading	guilty	simply to avoid the costs of repeated prosecution. But if we can imagine an institutional arrangement that does a better job securing these benefits without a restriction on double jeopardy, is anything lost if we choose to change	our	institution	and	set	aside	the	restriction?	There	does	not	seem	to be	anything	about	repeatedly	trying	a	case	that	is	intrinsically	objectionable; after	all,	double	jeopardy	is	only	triggered	under	certain	conditions	and	with respect	to	certain	jurisdictions.	Wellman	gives	the	instructive	example	of	an institution that did not protect against double jeopardy but significantly raised	the	evidentiary	standard	that	must	be	met	for	conviction.	It	could	be the case that such an institution would convict more guilty people and convict fewer innocent people than an institution	with protections against double	jeopardy	but	a	lower	evidentiary	standard. 5 If	we	lack	a	pre-institutional	moral	right	against	double	jeopardy,	then the	choice	between	these	institutional	arrangements	is	live	and	interesting:	it would	make	sense	to	investigate	the	choice	empirically	in	order	to	determine which arrangement is better. If we have a pre-institutional moral right against	double	jeopardy,	though,	then	only	the	institutional	arrangement	that protects	against	double	jeopardy	could	possibly	be	justified.	Of	course	even	if we lack a right against double jeopardy, it may still be the case that we should opt for a system with double jeopardy protections because the alternatives simply enable too	much harassment. But at this point we are weighing	the	costs	and	benefits	of	various	institutional	alternatives,	which	is precisely	the	sort	of	weighing	that	is	irrelevant	if	we	have	a	pre-institutional moral right	against	double jeopardy that serves	as	a side	constraint	on	our institutions.	It	is	hard	to	see	why	this	choice	would	not	be	open	to	us	based on	a	very	specific	pre-institutional	moral	right	against	double	jeopardy. Wellman's argument against a pre-institutional	moral right to a fair trial,	or	more	generally	each	individual's	"right	against	being	punished	until she	has	been	proven	guilty	by	a fair,	reliable,	and	public	process,"	proceeds differently.6	Wellman imagines	a case	where	a robbery is committed in the utopian Justland but the perpetrator cannot be discovered. In order to mitigate	the	effects	of	this	uniquely	unpunished	crime,	the	society	decides	by plebiscite to punish someone chosen by lottery. Sandra is chosen by the lottery and is subsequently punished but, in the challenging twist, Sandra 6.	Wellman,	supra	note	1,	at	290. 6 actually	committed	the	crime.	Wellman	contends	that	none	of	Sandra's	rights have	been	violated-Sandra	is	not	wronged	by	this	punishment-because	by committing	the	crime	she	forfeited	her	right	against	being	punished.7	There is no question of Sandra's legal or post-institutional rights being violated because ex hypothesi the Justlanders' institutions authorized the lottery. If none of Sandra's rights have been violated despite the fact that she was punished by such an arbitrary procedure, then she must not have a preinstitutional	moral	right	against	being	punished	absent	a	trial. To	be	clear,	the	Justlanders	may	be	blameworthy	for	using	the	lottery to punish Sandra. But	wrongness is a question of fact-relative or objective permissibility	whereas	blameworthiness	is	a	question	of	evidence-relative	or subjective	permissibility.8	Whether	Sandra	was	wronged	is	a	question	about the	rights	she	actually	has	while	whether	the	Justlanders	were	blameworthy is	a	question	about	their	mental	state	when	they	acted.	So	Wellman	is	willing 7.	On	Wellman's	rights	forfeiture	view	of	punishment,	see	Christopher	Heath	Wellman,	The Rights Forfeiture Theory of Punishment, 122 ETHICS 371 (2012). Much of the discussion below presumes at least a weak rights forfeiture view, which I endorse, but does not presume	the	strong	rights	forfeiture	view,	which	I	do	not. 8. On the distinction between fact-relative, evidence-relative, and belief-relative permissibility,	see	DEREK	PARFIT,	ON	WHAT	MATTERS	150	(vol.	1,	2012).	On	wrongness	as	a fact-relative	matter,	see	Peter	A.	Graham,	In	Defense	of	Objectivism	about	Moral	Obligation, 121 ETHICS 88 (2010). Of course, not everyone conceives of wrongness and blameworthiness in this	way	but	Wellman and I both	do; see	Wellman, supra note 1, at 297. 7 to admit that we should blame the Justlanders for employing an arbitrary procedure	that,	as	luck	would	have	it	and	unbeknownst	to	them,	happened	to punish the culpable offender.	The	distinct question for	procedural rights is whether	Sandra	was	wronged	by	the	Justlanders'	actions. Wellman's case for his broad skeptical conclusion that there are no procedural rights rests primarily on his discussion of these two cases. In support he also considers and rejects a variety of grounds that other theorists have proposed for procedural rights and he considers what implications	his skepticism	might	have for the	human	right to	due	process. Finding no firm basis for these two particular procedural rights in the literature,	Wellman generalizes his conclusion and claims that	we have no such	rights	at	all. In	order	to	address	this	skepticism	below,	it	helps	to	clarify	the	point of	a	theory	of	procedural	rights,	which	will	inform	what	sorts	of	rights	will	be plausible	components	of	such	a	theory.	As	noted,	certain	kinds	of	rights	will not do: positive legal procedural rights and post-institutional moral rights that arise out of a commitment by the institution to follow certain procedures. But why are these sorts of rights insufficient? What do preinstitutional	moral	procedural	rights	do	that	these	rights	cannot? Notice, first, what legal and post-institutional moral rights can do: they	can	explain	our judgment that subjects	of	a liberal constitutional legal regime are	wronged if they are punished absent a trial, or	more generally without first going through	a fair set of	procedures. Since such institutions 8 commit	themselves	to	using	trials	and	other	familiar	procedures,	subjects	of such institutions have legal and post-institutional moral rights that are violated	if	they	are	punished	without	the	appropriate	procedures	being	used. This is important for the skeptic because it provides the basis for a plausible error theory about pre-institutional moral procedural rights. I personally	have the intuition that	people	are	wronged if they	are	punished without first going through fair procedures even outside the context of a liberal constitutional legal regime. However, this may be because my intuitions	were formed in a context	where people	are so	wronged but the explanation	of	the	wrongness	that	fuels	my	intuitions	is	grounded	in	the	legal and post-institutional moral rights that I am familiar with, not preinstitutional	moral	rights.	If	we	can	explain	away	our	considered	judgments about such cases, then denying the existence of pre-institutional moral procedural	rights	is	not	as	implausible	as	it	may	seem	at	first	glance. That said, we often employ our judgments about punishment and procedural rights outside a liberal constitutional context and this is	where the	skepticism	matters.	First,	when	considering	areas	of	the	world	that lack rule	of	law,	we	are	tempted	to	say	that	people	who	are	punished	without	the relevant	procedures-without	trials,	without	juries,	without	presentation	of evidence, without an independent judiciary, and so on-are wronged. In these cases they cannot be	wronged in virtue of legal or post-institutional moral rights precisely because there are no such rights in the absence of institutions making specific commitments. If (even culpable) people are 9 genuinely	wronged	when	punished	in	such	circumstances,	it	must	be	because they	have	pre-institutional	moral	rights	that	are	being	violated. Second, and relatedly but not identically, pre-institutional moral rights	constrain	our	choices	between	institutional	alternatives,	as	illustrated with the example of double jeopardy.9 If there is a pre-institutional	moral procedural right to double jeopardy, then any institution that does not protect	subjects	against	double	jeopardy	is	necessarily	wronging	its	subjects, i.e. violating their rights.	But if such	a	procedural right	does	not	exist, then the reasons that count in favor of a right against double jeopardy can be balanced	against	other	considerations. Legal	or	post-institutional	moral rights cannot constrain	our choices among institutional alternatives precisely because such rights are absent without the institutions that we are choosing among.10 Skepticism about procedural	rights	importantly	entails	that	whatever	reasons	institutions	have to establish specific procedures, securing citizens' pre-institutional moral 9.	Wellman,	supra	note	1,	at	288-89. 10.	To	be	clear,	this	does	not	mean	that	what	legal	or	post-institutional	moral	rights	people might have under a particular regime cannot serve as a point of comparison between institutional	alternatives.	The	point is	that	we	cannot	take	the	existence	of	such	rights	to constrain	our	choices	between	alternatives:	the	fact	that	you	would	have	a	right	to	P	under regime	A	tells	us	nothing	about	whether	choosing	regime	B,	where	you	are	not	provided	P, violates	your	rights	and	so	tells	us	nothing	about	whether	choosing	regime	B	is	unjustified. That	having	a	right	to	P	under	A	is	a	good-making	feature	of	A	is	independent	of	whether opting	for	B	violates	your	rights. 10 procedural rights is not among them. This is in distinct contrast to many other cases: paramount among the reasons for there to be a law against murder	is	people's	pre-institutional	moral	right	to	life.	Any	legal	regime	that does	not	include	a	law	against	murder	is	unjustified	because	it	fails	to	protect that	right.	Denying	the	existence	of	pre-institutional	moral	procedural	rights thus changes the sort of justification that must be given for our choices among institutional alternatives. In sum, procedural rights of the relevant sort play two important roles: constraining choices among institutional alternatives and explaining the particular wrong of punishing someone absent	sufficient	procedures. Before proceeding, two notes: first, nothing I say here contradicts Wellman's conclusion that there is no pre-institutional	moral right against double jeopardy. In fact, Wellman convinced me that there is not. I take objection	to	his	argument	against	the	(to	my	mind	much	more	fundamental) right	to	a	fair	trial	and	to	his	more	general	skeptical	conclusion.	An	important lesson	of	his	article,	however,	is	that	at	least	some	of	what	we	conceive	of	as pre-institutional moral procedural rights should instead be understood purely	instrumentally.	Wellman's	argument	importantly	clears	the	way	for	a greater variety of institutional alternatives and so hopefully helps us think better	about	how	to	understand	and	improve	our	legal	institutions. Second, it is worth noting that Sandra has a pre-institutional	moral right	that	the	punitive	lottery	seems	to	violate:	the	right	to	be	treated	in	the same way as others under the same legal regime. In Justland, all other 11 punishments	have	resulted	from	trials,	but	in	this	one	case	Sandra	is	subject to a lottery and this seems to	wrong her because it is unfair. The sense of fairness	being	appealed	to	here	is	of	a	different,	more	relational	sort	than	the fairness	appealed to in the right to	a fair trial.	While it is	plausible that	we have a right to relationally fair treatment, however, the complaint of relational unfairness cannot ground procedural rights of the relevant sort. The primary problem is that seriously unjust legal regimes can treat everyone fairly in the	relational	sense	by	treating	them	all	equally	unjustly. Even worse, someone who metes out punishment to people without following any procedures at all can avoid the complaint of relational unfairness as long as they avoid procedures equally across cases. So relational	unfairness	of	this	kind	cannot	ground	procedural	rights	that	do	the work	we	want	them	to	do,	even	though	a	pre-institutional	moral	right	against relationally	unfair	treatment	can	explain	some	nearby	wrongs	(and	so	could also	contribute	to	the	skeptic's	error	theory). III.	SYSTEMIC	PROCEDURAL	RIGHTS Most discussions of procedural rights correctly focus on the idea of risk. People not only have pre-institutional moral rights against being harmed, they	have	rights	against	unreasonable	risks	of	harms.11	Such	rights	explain, 11. Claire Finkelstein, Is Risk a Harm? 151 U. PENN. LAW REV. 963 (2003); John Oberdiek, Towards	a	Right	Against	Risking,	28	LAW	&	PHIL.	367	(2009). 12 for	example,	why	I	wrong	you	if	I	take	five	bullets	out	of	my	revolver	and	fire it	at	you	for	my	amusement	but	happen	to	hit	an	empty	cylinder.	Even	though I did not physically harm you, as I would have had I fired the single remaining	bullet,	I	still	wronged	you	because	I	unreasonably	risked	your	life. As	this	example	makes	obvious,	what	amounts	to	reasonable	risk	depends	on a	variety	of	factors:	the	gravity	of	harm,	the	likelihood	of	harm,	the	purpose of	the	risk,	and	so	on.12	Imposing	a	small	risk	of	death	may	be	unreasonable while	imposing	a	large	risk	of	a	light	scratch	may	be	reasonable;	imposing	a tiny	risk	of	a	burn	to	save	many	lives	is	reasonable	while	imposing	a	tiny	risk of a burn for my amusement may not be. Since punishment involves the intentional infliction of harm, our general right against unreasonable risk also	protects	us	against	unreasonable	risks	of	punishment.13 A pre-institutional moral right against an unreasonable risk of punishment	can	ground	procedural	rights	of	a	certain	sort.	Wellman	admits this when he considers a modified Justland case where, instead of simply 12. A terminological note: I use 'harm' in a non-moralized sense to mean the setback of interests. Some philosophers prefer to use 'harm' such that only	wrongful setbacks are harmful.	This	seems	to	me	quite	mistaken,	although	I	admit	that	there	may	be	a	constraint such that very minor setbacks are not properly thought of as harm. Thanks to an anonymous	referee	for	pushing	me	to	clarify	this. 13.	The	relevant	risk	is	risk	of	wrongful	punishment:	if	I	have	culpably	committed	an	offense and	so	forfeited	my	right	against	punishment,	that	punishment	is	not	wrongful	and	so	any risk of that punishment is not unreasonable, as Wellman emphasizes in the Sandra example. 13 using	a	lottery	in	one	aberrant	instance,	the	punitive	lottery	is	routinely	used to mete out punishment.14 It is clear that a lottery system exposes all Justlanders to unreasonable risks of punishment precisely because the lottery	is	arbitrary	and	does	not	track	who	is	liable	to	punishment.	Because lotteries are arbitrary, we have a pre-institutional moral right against a system that uses routine punitive lotteries. Like the ostensible procedural right	against	double jeopardy, this is	a	negative	procedural right: it tells	us what kinds of procedures are insufficiently protective of our rights against unreasonable	risks. Similarly, we have a pre-institutional moral right to an institutionalized	system	of	punishment	in	general.	This	is	part	of	the	familiar Lockean justification for the state, which Wellman has endorsed.15 In the state of nature, private individuals	will take it upon themselves to punish. However,	due	to	personal	bias,	disagreements,	and	other	factors,	this	would lead to a great deal of wrongful punishment. Being in the state of nature, where	ex	hypothesi	there	are	no	political	institutions,	puts	us	at	unreasonable risk	of	punishment	and	so	violates	our rights.	This	very	general right to	an institutionalized system of punishment is not yet a procedural right of the relevant sort but thinking about unreasonable risk of punishment in this manner	can	also	ground	rights	to	more	specific	procedures. 14.	Wellman,	supra	note	1,	at	292. 15.	Christopher	Heath	Wellman,	Samaritanism	and	the	Duty	to	Obey	the	Law,	in	CHRISTOPHER HEATH	WELLMAN	&	A.	JOHN	SIMMONS,	IS	THERE	A	DUTY	TO	OBEY	THE	LAW?	2,	6-10	(2005). 14 Consider	the	procedure	of	the	trial in	its	most	general	sense.	Can	we imagine	any	system	that	does	not	include	trials	but	is	sufficiently	reliable	at meting out deserved punishment? What plausible alternatives are there? Summary punishment of suspects by law enforcement? Following mob mentality?	The	general	notion	of	a	trial	encompasses	many	variations;	even	a king	hearing	both	sides	of	a	case	and	simply	deciding	on	his	own	monarchical judgment is a trial (if an inadequate	one). Institutions	without trials	of any sort	seem	paradigmatically	unreliable	precisely	because	they	by	definition	do not	include	testing	of	the	claim	of	guilt	via	consideration	of	the	details	of	the case.	These	examples	are	somewhat	ludicrous	and	I	do	not	want	to	be	unfair to the	skeptic.	But it is	difficult for	me to imagine	a judicial institution that does	not	include	trials	and	is	sufficiently	reliable	such	that	it	does	not	violate its	subjects'	right	against	unreasonable	risk	of	punishment.	If	this	is	correct, then	we	have	a	pre-institutional	moral right to	a	punitive system that	uses trials	to	determine	guilt. This argument schema can show that we have further particular procedural	rights.	For	example,	a	trial	system	that	did	not	include	an	appeal process	of	some	sort	seems	unreasonably	risky	given	that	any	particular	trial can	fail	in	a	huge	variety	of	unseen	ways.	Similarly,	the	right	to	a	speedy	trial follows	from	the	fact	that lengthy	and	indefinite	detention	without	a	trial is unreasonably risky given that it significantly harms people irrespective of 15 determination	of	their	guilt.16	The	point	is	that	focusing	on	unreasonable	risk in the system shows that there are at least some familiar procedures the absence of which would make the system unreasonably risky. Some procedural	rights	that	we	take	for	granted	cannot	be	grounded	in	this	way,	as Wellman's discussion of double jeopardy demonstrates. I cannot here undertake	the	large	task	of	considering	our	legal	systems'	many	procedures and	ask	whether	their	absence	or	presence	is	absolutely	necessary	to	avoid an unreasonable risk of punishment. The point is that we have some procedural	rights. Procedural	rights	of	this	systemic	sort-rights	to	an	institutionalized system	of	punishment	that	includes	certain	procedures-can	clearly	play	one role	we identified for	a theory	of	procedural rights in the	previous section. Systemic rights set constraints on our choices between institutional alternatives.	When	considering	whether	we	are justified in	establishing	and operating	a	punitive	system	without	trials	or	with	trials,	we	have	to	choose the	system	with	trials.	Although	the	system	without	trials	may	be	much	less costly in terms of time and resources, such a system would impose an unreasonable	risk	of	undeserved	punishment	on	all	its	subjects	and	so	would 16. As an anonymous referee emphasized, this is not quite the same as "meting out hard treatment,"	which is how I originally framed the problem.	Note, however, that I am	not claiming	that	pre-trial	detention	in	general	is	problematic	but	that	"lengthy	and	indefinite" detention is. The details will depend on how the various values that undergird the justification of pre-trial detention are balanced against the harms imposed by such detention. 16 violate their pre-institutional	moral rights.	We cannot undertake the same weighing	of costs	and	benefits	as	we	could	when	we	were	considering two systems	that	do	not	violate	pre-institutional	moral	rights, like	one	including double	jeopardy	and	one	not.	We	have	to	opt	for	the	institutional	alternative that	incorporates	trials. That said, there is a significant problem with systemic procedural rights: they utterly fail to play the other role that we identified, namely explaining how actually punishing someone using an unfair procedure wrongs	them.	Systemic	rights	are	not	triggered	by	a	particular	unfair	trial	or unjust	procedure.	Instead,	they	are	in	some	sense	environmental:	without	a system	with	the	appropriate	procedures,	we	are	all	subject	to	a	constant	risk of unjustified punishment. This	means systemic rights are silent in both of the cases where the role of identifying particular wrongs by unfair procedures	is	most	pressing. First,	in	the	state	of	nature,	we	would	all	be	wronged	all	the	time	by the	lack	of	political	institutions	for	meting	out	punishment.	But,	as	Wellman notes,	systemic	rights	are	only	plausibly	held	against	collectives	because	no individual can establish and maintain an institutionalized system of punishment on her own.17 An individual in the state of nature	may have a duty	to	do	her fair	share	towards	establishing	such	a	system,	but if	she	has done	her	fair	share	systemic	rights	cannot	make	any	more	demands	on	her. Thus	if	we	imagine	a	case	where	she	has	done	her	fair	share	but	there	is	still 17.	Personal	correspondence. 17 no punitive system because not enough others have contributed, systemic rights	are	silent.	If	she	proceeds	to	punish	someone	on	her	own	under	such conditions,	then,	systemic	rights	do	not	provide	any	basis	for	saying	that	she acts	wrongfully,	regardless	of	whether	she	uses	fair	procedures	or	not. Similarly, in the case where Justland uses routine punitive lotteries rather	than	trials,	all	Justlanders	are	being	wronged	by	the	unreasonable	risk of undeserved punishment that they constantly face due to the features of their	system.	But	in	the	original	Sandra	case,	Justland	is	stipulated	to	have	a generally	just	system	of	punishment.	In	normal	cases,	Justland	uses	trials	and courts	and	appeals	and	everything	else	that	we	want.	What	makes	Sandra's case	difficult	is	precisely	that	the	punitive	lottery	is	an	aberration	rather	than a	regular	feature	of	the	system	and	so	Sandra	seemingly	has	no	complaint	of being exposed to an unreasonable risk of punishment from the system. In both cases systemic procedural rights fail to explain the wrong that procedural	rights	are	often	precisely	used	to	explain,	namely	how	individuals are	specifically	wronged	by	punishment	that	results	from	unfair	procedures. The	wrong	of	an	unreasonable	risk	of	punishment from	unreliable	punitive systems and the wrong of punishment that results from particular unfair procedures	are	simply	distinct. This is	a	significant	problem	for	grounding	procedural rights	only in systemic concerns. In the rest of this section I push the case for systemic procedural	rights	as	far	as	I	plausibly	can.	In	part	this	is	because	I	think	the Justland	case	obscures	an important feature	of	systemic	rights	and	pushing 18 the	case	for	such	rights	illuminates	the	nature	of	systemic	procedural	rights more	broadly.	Ultimately,	however,	I	am	not	confident	that	this	problem	can be	satisfactorily	answered	by	appealing	only	to	systemic	procedural	rights.	If not, and if systemic rights are the only solid ground for procedural rights, then we may simply have to accept that procedural rights cannot do everything	we	have	traditionally	taken	them	to	do.	But	this	is	also	why	I	offer another ground for procedural rights in the next section. I think these distinct	arguments	are	both	correct	and	that	they	ground	related	but	distinct kinds	of	procedural	rights. Systemic rights can explain why Sandra is wronged in Justland because the risk that Sandra is exposed to is not simply the risk of the arbitrary	punitive	lottery.	The	Justlanders'	system	imposes	an	unreasonable risk on its subjects simply because it can allow a punitive lottery to be enacted. In	our	own	actual legal systems, such	a	plebiscite	would	be	struck down	by the	courts	even if it successfully	passed.	Sandra is	wronged in the one-off lottery	case	precisely	because	the Justlanders'	system	lacks the	sort of contra-majoritarian checks that a fair and reliable judicial system	must contain.	Fair	and	reliable systems	have judicial review	precisely to restrain the	majority	from	making	this	sort	of	"wacky"	decision.18	A	system	that	does not have serious restraints on the sorts of clearly arbitrary treatment of individuals that this lottery represents is ipso facto violating its citizens' rights.	All	the	Justlanders	are	subject	to	an	unfair	and	unreliable	system.	The 18.	Wellman,	supra	note	1,	at	290. 19 fact	that	they	only	used	the	lottery	once	is	irrelevant;	the	problem	is	that	they could	ever	use	a	punitive	lottery	at	all. A	resolute	skeptic	about	procedural	rights	might	object	that	the	mere capacity	of	the	Justlanders	to	use	a	one-off	punitive	lottery	does	not	subject Sandra to unreasonable risks, for two reasons. The first is that the Justlanders only use the lottery after a rigorous process: "After extensive public discussion and deliberation, all ten	million Justlanders voted in the plebiscite,	and	the	motion	was	affirmed	by	a	two-thirds	majority."19	Not	only was	there	a	vote, it	was	a	direct	vote	rather	than	by	representatives, it	was taken only after extensive public deliberation, there was unanimous participation, and the plebiscite passed with two-thirds of the vote rather than	a	mere	majority.	While	the	Justlanders'	system	contains	some	risk,	it	is not	an	unreasonable	risk	because	the	stringent	conditions	on	this	lottery	are very	unlikely	to	be	met	again.	The	mere	fact	that	the	risky	outcome	occurred does	not	show	that	the	risk	was	unreasonable. This	goes	well	with	the	other	point the	resolute	skeptic	might	make, namely that no system can perfectly protect against such a risk. Given the two-thirds majority, for example, the U.S. Constitution could have been amended to make such a lottery legally permissible, rendering judicial review irrelevant. Yet we do not think that the mere possibility that the Constitution	could	be	amended in	such	a	way	means	that	we	are	subject to unreasonable risk of punitive lotteries. We need some notion of 19.	Ibid. 20 unreasonable risk that does not entail that any fallible system, i.e. every actual	system,	is	unreasonably	risky. While it is true that there are no perfect systems, this ignores two salient points. The first is that some legal systems, like Germany's, have rights that explicitly cannot be amended by the population regardless of a vote;	perhaps there is	good	reason to think that lacking	such	unchangeable elements is unreasonably risky in light of the vagaries of majority rule. Indeed, this seems to be the most obvious justification for the German system,	which	was implemented	after	World	War II.	Of course, even this is not	perfect	as	the	constitutional	order	as	a	whole	could	collapse. This leads to the second	point. The fairness and reliability of a trial must be assessed relative to the overall system in which the trial occurs. Consider all the elements of a trial that contribute to its fairness and reliability.	First, there	are	all the	norms that	are independent	of the formal constraints.	These	norms	are	a	community	matter,	developed	over	time	and tested	in	innumerable	cases.	No	matter	the	formal	features	of	a	single	trial,	it would	need	to	be	bolstered	by	reliable	norms	because	how	rules	operate	in practice is	a function	of	norms. It	was	not	only the Justlanders' institutions that	failed,	it	was	also	their	sense	of	justice. Second, the fairness and reliability of all the formal features that contribute	to	the	fairness	and	reliability	of	a	trial-the	judge,	presentation	of evidence, adequate legal representation, and so on-are themselves dependent on the entire system. The sort of judge that profoundly 21 contributes to the fairness and reliability of a trial is bound by jurisprudential	norms	and	precedent,	is	trained	in	jurisprudence,	is	beholden to	reputational	and	other	social	constraints,	makes	their	decisions	publicly	so that	they	can	be	subject	to	review,	and	so	on.	A	truly	systemic	understanding of fairness and reliability concerns more than the explicit legal system, extending to include institutions that train and regulate judges. Fair and reliable	trials	require	the	presentation	of	evidence,	but	evidence	is	not	simply recitation	of	facts.	The	sort	of	presentation	of	evidence	that	contributes	to	the fairness	and	reliability	of	a	trial	is	subject	to	rules	of	relevance	and	standards of	fairness	and	reliability	itself.	The	fairness	and	reliability	of	the	trial	is	not merely a function of the fact that it makes room for the presentation of evidence, but of the institutions that study and regulate what constitutes admissible	evidence,	how	it	is	collected,	and	so	on.	When	we	complain	of	an unfair trial then, it often	makes sense to in fact locate the complaint in the broader system, upon which the fairness and reliability of the trial necessarily depend. The unfairness of the lottery is not just in its arbitrariness but in its place in an overall unreliable system that does not prevent	such	an	arbitrary	punitive	practice. But	there	remains	a	limit	to	what	systemic	procedural	rights	can	do.	I can	explain	why	Sandra	is	wronged	but	again	I	appealed	to	systemic	features rather	than	the	particular	fact	that	the	lottery	was	arbitrary.	Even	if	there	is something	wrong	in	Justland,	I	must	admit	that	no	system	is	perfect,	so	there is always the possibility that someone could be subject to an unfair trial 22 within a system that was otherwise as realistically good as I want to stipulate, i.e.	within	a	system	that	did	not	violate their systemic	procedural rights. Call such a case Justland+. Consider Sandra+, who is punished following	a	trial	where	a	single	rogue	investigator	manufactured	evidence	in such	a	way	that	is	not	reasonably	discoverable	by	the	system.	The	possibility of	such	a	case	cannot	be	ruled	out	for	human	institutions	in	all	their	fallibility. If the	wrong	of	an	unfair trial is	only	systemic, then it looks like	Sandra+ is not	wronged	since	she,	like	Sandra,	actually	committed	the	crime	that	she	is framed	for.	The	right	to	a	fair	trial	in	the	traditional	sense	is	precisely	primed to identify	particular	wrongs like this	but the	more systemic right finds	no fault. IV.	THE	ROBUST	GOOD	OF	SECURITY To	review,	appealing	to	a	pre-institutional	moral	right	against	unreasonable risk	of	punishment	can	ground	pre-institutional rights to the	establishment and operation of institutions that follow certain procedures. Such rights constrain choices among institutional alternatives and so fulfill the role of procedural rights in one important sense. But systemic procedural rights cannot	ground	a	claim	that	someone is	wronged	by	a	particular instance	of punishment imposed without following certain procedures.	We have good reasons	to	want	to	be	able	to	explain	such	wrongs.	In	this	section	I	make	the case	for	a	more	specific	procedural	right	that	can	play	precisely	this	role. 23 A	caveat:	my	argument	in	this	section	is	more	controversial	than	the argument	for	systemic	rights.	There	I	appealed	to	widely	accepted	premises like a right against unreasonable risk. In this section I employ significantly more controversial conceptual and moral premises, so some who may be convinced	by	my	case	for	systemic	rights	may	remain	unmoved	by	the	case for more specific procedural rights in this section. Importantly, the two arguments	are	entirely	independent	of	one	another,	although	they	present	a richer	picture	of	procedural	rights	when	taken	together. When	Sandra	(or	Sandra+) is	punished	by	the lottery,	she is	harmed beyond simply the costs of punishment or the risk of punishment. Sandra also	suffers	the	denial	of	a	robust	good	to	which	she	has	a	right.	The	idea	of	a robust	good	comes	from	Philip	Pettit	and	it	rests	on	the	distinctive	notion	of robustness, according to which an agent controls for a certain outcome across relevantly close possible worlds.20 For our purposes the important 20.	PETTIT,	supra	note	4.	A	look	at	the	text	reveals	the	range	of	theoretical	commitments	that Pettit	draws	upon,	including	in	ethics,	action	theory,	and	other	domains.	However,	I	think that the idea of robustness-of controlling for outcomes in one's deliberations through dispositions of concern-can be extracted from Pettit's broader theory, including his conclusions about what degree of robustness is required for certain goods and about political philosophy. This is why I think it is fair below to present my argument as a particular way of explaining a general constraint of respectful treatment that others discussing	punishment	have	appealed	to	without	using	Pettit's	framework.	Teasing	out	the nuances	of	the	idea	independent	of	all	of	Pettit's	arguments	is	a	large	task	that	must	be	put aside	for	our	purposes	here. 24 point	is	this:	Sandra	is	wronged	by	the	lottery	because	she	would	have	been punished	even	if	she	had	not	committed	the	crime.	This is	not	simply	about an	increased	risk	of	undeserved	harm,	as	Wellman	admits	occurs	in	the	case where the punitive lottery is a regular practice. The lottery is not like an accident; it is not something that simply happened. The Justlanders employed	the	lottery	specifically	with	the	intention	to	inflict	hard	treatment on someone regardless of their culpability. They would have punished Sandra even if she had not committed the robbery,	which is obvious since they	punish	her	even	though	they	do	not	believe	she	committed	the	robbery. It does not matter to them whether she deserves the punishment she receives.	Despite	the	fact	that	she	actually	does	deserve	the	punishment	she receives,	being	treated	in	this	manner	is	itself	a	harm	that	Sandra	did	not- indeed,	could	not-forfeit	her	right	against. The	point	of this section is to	make	good	on these	claims	by further investigating the idea of a robust good and to show that we have a preinstitutional	moral	right	that	protects	us	against	the	sort	of	harm	that	Sandra suffers.	I	take	myself	to	be	explaining	something	that	various	theorists	have gestured	towards	when	discussing	procedural	rights.	For	example,	Simmons writes, "we forfeit rights by our	misconduct only to the extent that	makes possible	respectful	punishment."21	This	notion	of	respect	is	also	connected	to 21.	A.	John	Simmons,	Locke	and	the	Right	to	Punish,	20	PHIL.	&	PUB.	AFF.	311	(1991),	at	341. Original	emphasis.	Simmons	attempts	to	explain	this	idea	of	respect	in	contractarian	terms 25 the	idea	of	individualization:	punishment	must	be	tailored	to	the	individual, taking account of her particular circumstances. While the general idea is relatively	commonplace,	its	precise	grounds	are	often	less	well	explained	and grounding	it	in	robust	goods	is,	as	far	as	I	am	aware,	completely	novel.22 A.	Robust	Goods To understand how I employ the notion of robust goods in the case of procedural	rights,	it	will	help	to	first	step	outside	the	context	of	punishment. Friendship is one of Pettit's paradigmatic robust goods. For every robust good,	there	is	an	associated	thin	good,	which	in	the	case	of	friendship	is	care and attention. Friends treat each other	with care and attention but simply providing care is not sufficient for friendship. Someone	who provides you care	only	when	it	is	convenient	for	them	and	when	it	advances	their	interests is not your friend because they give the thin good of care but never the robust good of friendship. As Pettit notes, "the fair-weather friend is no by	appealing	to	what	equal	subjection	to	a	system	of	norms	requires,	as	well	as	in	Kantian terms	by	appealing	to	not	being	used	as	a	mere	means. 22.	Regarding	precise	grounds,	Duff	is	a	notable	exception,	offering	a	detailed	argument	that connects	particular	features	of	punitive	systems	to	the	demands	of	respect	for	others	in	a Kantian	sense,	as	autonomous	moral	agents	whom	the	law	calls	to	account;	see	DUFF,	supra note	3,	at	6. In	distinct	contrast,	my focus is	on	how	we	must treat	others	when	we	risk harming	them. 26 friend	at	all."23	They	may	provide	you	with	care	on	particular	occasions	and you	may	believe	them	to	be	your	friend,	but	they	are	only	your	friend	if	they not	only	provide	care	but	control	for	providing	care	over	a	suitable	range	of counterfactuals	or	possible	worlds,	including	some	where	it	is	costly	to	them. When	they	control	for	giving	you	care	in	this	way,	they	give	you	care	robustly and	so	also	give	you	friendship. The	notion	that	friendship	requires	the	provision	of	a	robust	good	is related to the idea that true friendship is necessarily non-instrumental.24 When	I	provide	the	good	of friendship,	Pettit	argues, I	do	so	out	of	concern for	you	in	particular,	not	just	for	the	idea	of	friendship	in	general	or	because of	the	goods	that	I	might	gain	from	our	friendship.	I	cannot	be	willing	to	swap friends	in	an	instant	if	I	think	it	would	be	abstractly	optimific	for	me	to	do	so. Instead friendship necessarily involves individualized concern and a disposition to provide friends with care when appropriate. When friends control	for	caring	for	one	another	across	a	suitable	range	of	relevant	possible circumstances, they express the value that they place in their relationship and	the	respect	that	they	reciprocally	have	for	each	other. A	notable	advantage	of	the	robustness	schema	is	that	it	steers	us	away from	conceiving	of	relations	to	others	solely in	terms	of	expected	value.25	If 23.	PETTIT,	supra	note	4,	at	35. 24.	Dean	Cocking	and	Justin	Oakley,	Indirect	Consequentialism,	Friendship,	and	the	Problem	of Alienation,	106	ETHICS	86	(1995). 25.	PETTIT,	supra	note	4,	ch.	5. 27 you	are	my friend, it is true that I get	more expected care from	you than I would otherwise, but that is not what makes us friends. What makes us friends is that I have a special, protected role in your deliberations. It is a decision	you	make,	and	keep	making	through	the	maintenance	of	a	favorable disposition, to treat	me-me specifically-as a friend. I am	protected from your ill-will and certain bad outcomes because of my place in your deliberations,	not	simply	because	you	are	a	mechanistic	source	of	value for me.	To	treat	friendship	as	a	matter	of	expected	value	is	to	take	the	objective stance towards friends, to treat friends as	mere things, rather than to take the	reactive	stance	that	is	appropriate	when	dealing	with	a	person	who	you recognize can exercise choice and so whom you must trust to use their discretion wisely. Evaluating situations in terms of their expected value works well in some cases, but when applied to our relations with other persons, it treats us all too mechanically. (As I explain below, for our purposes	this	matters	because	a	risk	of	harm	from	something	impersonal	like a natural disaster is different from a risk of harm from another person's intentional	actions.) Pettit uses the same basic structure-providing thin goods out of a disposition that controls for the	provision	of those goods across a relevant set of close possible worlds-to analyze not only friendship but love, honesty,	respect,	and	many	other	goods,	ultimately	claiming	that	the	general schema is widely applicable.26 Following this lead, Seth Lazar recently 26.	Id.	at	108. 28 applied the idea of robust goods to issues of harm and risk.27 Lazar's discussion	is	illuminating	given	our	concern	with	these	same	issues,	although modified	to	fit	our	context	of	punishment. Lazar	argues	that,	all	else	equal,	killing	an	innocent	is	worse	when	that killing	is	riskier	precisely	because	riskier	killings	fail	to	give	others	the	robust good	of	security	that	they	deserve.	The	good	of	security	is robust avoidance of pro tanto wrongful harm. To enjoy security,	one	must	not	only	avoid	wrongful	harm	in	the	actual world,	but	also	do	so	across	relevant	counterfactual	scenarios: those in	which	the	victim	does	not	get lucky.	We	are insecure to	the	extent	that	others	make	our	avoidance	of	wrongful	harm depend	on	luck.28 Just like friendship, security as a robust good has important instrumental benefits, such as peace of mind, but is also non-instrumentally valuable. Security, Lazar argues,	partly constitutes autonomy	because	being insecure gives	you	less	control	over	your	life.29	Security	also	partly	constitutes	what	it means to be a member in good standing of a community, where others 27. Seth Lazar,	Risky	Killing, J.	MORAL PHIL. (forthcoming); Seth Lazar,	Risky	Killing and the Ethics	of	War,	126	Ethics	91	(2015):	91-117.	Cf.	Pettit,	supra	note	4,	at	175-76. 28.	Lazar,	Risky,	id.	at	8. 29.	Cf.	Oberdiek,	supra	note	10,	at	373ff. 29 express their concern for you through a disposition to protect you against wrongful	harms.30 A modified version of one of Lazar's examples can help us better understand the robust good of security. Consider Allie, a worker who is tasked with demolishing a building. Unbeknownst to Allie, Bruce is in the building. Allie knows that there could be people in the building-such a possibility	is	intrinsic	to	the	task	of	demolishing	large	structures.	In	the	first case, she thoroughly checks the building because she is concerned with people's lives: she	does	not	want to	kill anyone	and it is relatively	easy for her	to	take	the	time	and	effort	to	go	through	the	building	before	she	destroys it.	She	finds	Bruce	and	removes	him.	In	this	case	she	gives	Bruce	the	robust good of security and expresses her concern for others in her community, including Bruce.31 In the second case, she decides not to check and demolishes the	building,	killing	Bruce. In this case,	not	only	did she	violate his	right	to	life,	she	failed	to	give	him	security:	she	was	indifferent	to	the	very live possibility that someone might be in the building she was going to demolish.	Finally,	in	the	third	case,	she	decides	not	to	check	but	Bruce	is	able 30.	Lazar,	Risky,	supra	note	24,	at	8-9. 31.	Note	that	the	only	role	of	this	case	is	to	illustrate	robust	goods	and	how	to	consider	them. Their particular role in justifying procedural rights is articulated below and the contrast with	other	ways	of	accounting for	similar	concerns, like focusing	solely	on levels	of	risk, is emphasized	at	that	point.	These	other	methodologies	may	well	account	for	the	Allie	case	just as well as robust goods do; the point is the distinct roles they play with respect to punishment.	Thanks	to	an	anonymous	reviewer	for	pushing	me	to	clarify	this	point. 30 to	escape	with	his	life.	In	this	case	she	did	not	violate	his	right	to	life	but	she did fail to give him security precisely because she still acted on her indifference	to	the	possibility	that	he	was in	the	building	and	that	he	might be	wrongfully	killed.32	Bruce	is	alive	but	insecure:	the	fact	that	he	lived	was	a result	of	luck,	not	of	Allie	controlling	for	avoiding	wrongfully	harming	him. The	proposed robust good	of security is intuitively plausible. Critics may	want	to	account	for	security-or	even	robust	goods	in	general-strictly in	terms	of	expected	value,	or	blameworthiness	rather	than	permissibility,	or 32.	There	is	a	fourth	possibility:	Allie	checks	thoroughly	but	Bruce	is	undiscoverable	and	he dies	when	she	demolishes	the	building.	My	inclination	is	to	say	of	this	case	that	Allie	gave Bruce the good of security-she surely did not violate any right he has to security- because	she	did	her	due	diligence	but	that	she	still	violates	his	right	to life	(since	he	had done nothing to forfeit or waive it). Bruce was as secure as Allie could make him but security is not everything. The way Pettit defines robust goods seems to make this impossible,	though,	because	one	can	only	give	someone	a	robust	good	when	one	also	gives the	thin	good	and	Allie	did	not	secure	the	thin	good	of	avoiding	wrongfully	harming	Bruce. This is	one	place	where	our	theory	of	robust	goods	can	come	apart	from	Pettit's	but it is also tangential to	our	discussion	of	procedural rights.	One thing	we	can	agree	on is that Allie	expressed	the	concern	that	security	requires	and	that	she	treated	him	as	person	with equal status in	her community, as far	as she	was	able. (Analogously, there	may	be	cases where	someone	acts	as	a	friend	should,	and	so	remains	your	friend,	even	when	she	cannot give you the thin good of care for reasons outsider her control, like if she suffers a debilitating	accident.) 31 with	a	variety	of	other	strategies.33	I	will	not	pretend	to	have	given	the	robust good	of	security	a	full	defense.	As	I	noted	above,	my	argument	here	depends on	considerably	more	controversial	premises,	in	particular	the	existence	of	a robust	good	of	security.	From	here	forward	I	will	take	such	a	good	to	exist	in order to explore the possibility that it can ground pre-institutional moral procedural	rights. B.	To	Procedural	Rights Even	if	there	is	a	robust	good	of	security,	I	still	need	to	show	three	things	for the purposes of grounding procedural rights. First, that	we all have a preinstitutional	moral	right to the	provision	of	security from	other individuals. Second, that	such	a	right	requires	that	we	follow	specific	procedures in	our treatment	of	others,	especially in	the	case	of	meting	out	punishment.	Third, that	such	a	right	is	not	forfeit	by	culpable	offenses. If	I	can	show	all	three	elements,	then	we	can	say	that	everyone	has	a right	not	to	be	punished	by	other	individuals	absent	fair	procedures,	even	in the	state	of	nature	and	even	against	the	background	of	a	sufficiently	reliable punitive	system,	because	doing	so	would	fail	to	provide	them	with	the	robust 33. Lazar addresses some of these concerns in the case of security and, of course, Pettit considers many in the general case of robust goods. It is worth noting that Wellman pursues similar sorts of debunking strategies against other proposed grounds for procedural	rights,	so	he	may	well	be	amenable	to	pressing	them	here	as	well. 32 good of security (or: doing so would make them wrongfully insecure.) Punishing	Sandra	using	a	punitive	lottery	thus	wrongs	her	because	it	violates her	procedural rights that are	derived from	her right to security. Similarly, punishing	someone	in	the	state	of	nature	without	first	going	through	a	trial and other sufficiently fair and reliable procedures wrongs them. If this is true,	then	we	will	have	found	a	ground	for	pre-institutional	moral	procedural rights	of	the	sort	that	can	play	the	role	of	identifying	the	particular	wrong	of punishing absent appropriate procedures in particular cases, across the variety	of	contexts	in	which	those	judgments	seem	apt.	The	remainder	of	the article	takes	up	these	three	tasks. First,	even	if	security	is	a	robust	good,	and	even	if	we	all	have	interests in	such	a	good,	why	think	that	this	amounts	to	a	right	to	security?34 We	do not	have	a	right	to	all	good	things	or	to	all	good	sorts	of	treatment;	romantic love is a robust good on Pettit's account but nobody has a right to be romantically loved that correlates to another person's duty to love them.35 Further,	as	Alexander	notes, it is	not	plausible	that	there	is	a	duty	to	follow strict procedures whenever we risk setting the interests of others back 34.	Lazar	mostly	refrains	from	discussing	a	right	to	security	because	his	concern	is	with	its exacerbating	or	aggravating	role	but	he	says	that	a	right	to	security	is	plausible.	See	Lazar, Risky,	supra	note	24,	at	7,	note	20,	and	16. 35.	Wellman,	supra	note	1,	at	298	raises	a	similar	complaint	against	a	publicity	constraint:	it may	be	good	for	justice	to	be	done	publicly	but	that	is	distinct	from	having	a	right	to	public justice. 33 because	anything	we	do	entails	such	a	risk.36	It	would	unreasonably	explode our	duties. To me, it is plausible that while we have an interest in security broadly	speaking,	we	only	have	a	right to	security	when	our	most	essential interests are at stake.37 If I demonstrate a lack of concern such that I risk lightly	scratching	your	forearm,	I	may	have	made	you	less	secure	and	I	may have	acted	blameworthily	but	I	do	not	seem	to	have	not	violated	any	of	your rights.38	But	it	is	harder	to	deny	a	right	to	security	when	we	are	considering avoiding	violations	of	essential	interests,	like	simply	remaining	alive.	This	is 36.	Alexander,	supra	note	3,	at	33. 37. This distinction could collapse if pro tanto	wrongs of the sort referred to in Lazar's definition	of	security	are	restricted	to	violations	of	essential	interests.	But	this	seems	too strong:	because	of	my	property rights it is	pro tanto	wrongful to	harm	my	property, for example	by	scratching	my	car,	but	having	an	unscratched	car	seems	in	no	way	essential	to my	well-being.	Some	wrongs	are	minor. 38.	Restricting	the	right	to	security	to	cases	of	essential	interests	answers	an	argument	from Wellman,	supra	note	1,	at	296-97.	He	gives	the	example	of	Elizabeth	and	Philippa:	Philippa takes twenty	dollars from	Elizabeth	but later	Elizabeth,	not knowing	Philippa	had taken her	money	and	fully intending	to	steal from	Philippa, takes	her	own	twenty	dollars	right back. Wellman contends that Elizabeth has done nothing wrong (although she is blameworthy).	If	a	right	to	security	covered	wrongful	harms	of	any	kind,	it	might	run	afoul of this	case	(assuming	you	agree	with	Wellman's	assessment).	But	while	Elizabeth	might be undermining Philippa's interest in security, since it only involves a small amount of money Philippa's right to security does not cover such a case and so Elizabeth has not violated	Philippa's	rights	in	this	case. 34 why the	Allie case is compelling. If you are	undertaking a task that is very destructive and you know that someone could easily be killed by your actions, to proceed without taking precautions demonstrates a critical, wrongful	lack	of	concern	for	the	lives	of	others. When	Bruce	barely	escapes	with	his life,	he	has	a	complaint	not just because	there	was	some	chance	that	he	would	die	but	because	Allie	did	not even do the bare minimum to ensure that her risky action would not kill anyone.	As	Lazar	emphasizes,	it	is	not	just	that	there	was	some	objective	risk of Bruce dying but that Allie acts without knowing	whether she is risking killing anyone and	without even attempting the clear steps that she could take	to	find	out.	Another	way	of	framing	this	is	that	the	good	of	demolishing the	building	without	securing	the	site	is	very	much	outweighed	by	the	bad	of a wrongful and unnecessary death, so when proceeding to demolish the building	without	due	diligence,	the	reckless	version	of	Allie	is	expressing	how little	she	actually	values	the lives	of	others	and	how	much	she	undercounts their	worth	when	she	acts.	She	does	not	give	others'	lives	the	protected	place in her practical deliberations that she should by controlling for avoiding wrongfully killing or injuring them. This is also	why such a right is clearly held	against	individuals:	it	is	about	how	we	are	each	obligated	to	treat	others when we undertake actions that we know risk harming others' essential interests. Such a right to security also seems to be a pre-institutional moral right, so obligates us to act in certain ways even absent relevant 35 institutions.39 If I am going to undertake a risky task, like burning down a field that separates my house from	my neighbors' house, it is clear that I wrong	my	neighbors if I	do	not	take	sufficient	care for	their lives. I	need	to warn	them;	I	need	to	set	up	firebreaks; in	general I	need	to	make	sure	that my	act	does	not	threaten	to	burn	down	their	house	and	kill	them.	Otherwise they	clearly	can	complain that I	did	not	express	adequate	concern	even if I get lucky and they are not harmed. It is true that ultimately the details of such concern need to be specified by institutions, so out of the state of nature,	but	disagreement	over	borderline	cases	should	not	prevent	us from 39.	Note	also	that	the	duty	correlated	to	this	right	holds	even	when	someone	in	the	state	of nature has done their fair share to establish institutions that would better protect and respect	this	right.	Consider	an	analogy	to	emergency	aid	services,	an	issue	of importance for	Wellman's	Samaritan	justification	for	the	state.	One	implication	of	the	pre-institutional rights	that	people	have	is	that	they	be	aided	when	they	are	in	danger	and	aid	is	of	little	cost to bystanders. The only way to secure these rights generally in our actual conditions, where	natural	disasters	and	accidents	and	so	forth	are	a	regular,	if	unpredictable,	feature of	the	world,	is	to	set	up	institutions	like	police	and	firefighters	and	paramedics.	Imagine someone	who	has	done their fair share in the state	of	nature to set	up such institutions but,	because	other	people	are	not	contributing,	such	institutions	do	not	exist.	This	does	not mean	that	if	this	person	comes	across	a	situation	of	easy	rescue	that	she	does	not	have	a duty	to	aid	the	person	in	harm's	way.	The	institutional	duty	and	the	individual	duty	may rest in the same concern for the person as an individual	who	matters, but fulfilling one does	not	entail	fulfilling	the	other.	Similarly,	then,	even	the	person	who	has	done	her	fair share	to	set	up	fair	punitive	institutions	but	remains	in	a	state	of	nature	still	has	the	duty not	to	make	others	insecure	in	their	essential	interests. 36 saying	that	taking	risks	with	others'	lives	without	sufficient	precautions	can sometimes clearly wrong them by denying them the security that they deserve. A complete defense of the right to security	would need to go	more deeply	into	rights	theory;	an	important	interest	in	security	plausibly	grounds the right to security on an interest theory of rights but it is a more open question whether a will theory of rights would also endorse the right to security (although the non-instrumental value of security in partially constituting autonomy suggests that it could). I cannot undertake such a project here but it is plausible that we have such a right. If we are owed concern	from	others,	it	makes	sense	to	say	we	have	a	right	that	they	control for avoiding wrongful harms when they risk setting back our essential interests.	Thus	it	is	plausible	that	we	all	have	a	pre-institutional	moral	right to	the	provision	of	the	robust	good	of	security	held	against	other	individuals, which	correlates	to	a	duty	to	provide	security	on	their	part-in	short,	a	right to	security. Turning	to	our	second	main	task:	even	if	we	have	a	right	to	security, why think that this right requires certain procedures to be followed, such that procedural rights can be derived from the right to security? The Allie example	is	helpful	here	as	well.	Given	that	demolishing	the	building	involves a lot of destruction and	would almost surely kill anyone inside, Allie has a duty to check the building for occupants before demolishing it based in people's right to security. Surely	not any	procedure	will suffice in order to 37 fulfill her duty to provide security: simply calling a quiet warning from outside is not sufficient. She	must check the	whole building. If she did not follow the procedure of inspecting every room in the building before destroying it, she wrongs anyone in the building in virtue of her lack of concern for their well-being. Given the nature of the task that she is undertaking	and	the	risk	that	she	poses	to	others'	lives,	particular	sufficiently reliable procedures are required and others have a right against her using insufficiently reliable procedures like only calling from outside or only checking the entrance. Like rights against double jeopardy or the use of punitive	lotteries,	this	is	a	negative	procedural	right	that	protects	us	against procedures	of	certain	sorts. To	my	mind	this	example	suffices	to	show	that	in	cases	where	people's sufficiently important interests are at stake such that they have a right to security,	that	right	can	only	be	respected	by	following	certain	procedures.	In other	cases	where	security	matters less,	so there is	only	an interest	and	no right as in cases	where severe	physical	harm is	not realistically	possible, it may be the case that you can provide someone with the robust good of security absent following procedures. But when the interest is important enough	to	ground	a	right,	procedures	are	necessary. That said, the case for procedural rights derived from the right to security	is	even	clearer	in	the	case	of	punishment.	In	Allie's	case,	she	does	not know	whether	anyone	is in	the	building; it	might	be	that	nobody	is	harmed by	her	act.	But	punishment	necessarily involves the intentional infliction	of 38 harm.	There	is	no	chance	that	nobody	will	be	harmed	by	punishment	because harm	is	intrinsic	to	punishment.	When	intentionally	inflicting	harm,	the	only way	to	also	provide	security	is	to	follow	rigorous	procedures. Providing security	while harming	may seem	paradoxical on its face. The first thing	to	note is that	we	defined	security	as	avoidance	of	pro	tanto wrongful	harm,	not	just	harm	per	se.	Consider	the	sort	of	harm	involved	in	a martial	arts	bout.	The	harm	here	is	not	wrongful	because	it	is	consensual.	But participants can still undermine the other's security if they go beyond the regulations that restrain the harm, for example if they modify their equipment	or	use	banned	techniques.	The	harm	participants inflict	on	each other can remain	within the	bounds	of concern and security; indeed, to	be indifferent to the regulations of the sport or to purposefully flout them precisely	expresses	a	wrongful	lack	of	care	given	the	gravity	of	the	practice. Notice	that	intentionally	inflicting	harm	is	prima	facie	wrongful.	When we	undertake	to	intentionally	inflict	harm,	then,	to	avoid	pro	tanto	wrongful harm we have to confirm that the harm is not wrongful, for example by confirming waiver, necessity, or forfeiture.40 The only way to sufficiently 40.	The	distinction	between	pro tanto	and	prima facie	wrongs	matters	a	great	deal for	our purposes here. A pro tanto	wrong is genuinely wrongful but it may be outweighed all things	considered,	so it	may	be justified	to inflict the	wrong.	A	prima	facie	wrong is	only wrong	in	usual	circumstances;	in	some	circumstances	it	may	not	be	wrong	at	all.	A	prima facie	wrong	can	become	pro	tanto	wrong	when	we	consider	it	in	particular	circumstances. The point, then, is that since intentionally harming is usually wrong, absent special circumstances, to show appropriate concern for avoiding actually wronging someone 39 reliably	confirm	the	permissibility	of intentionally inflicting	harm	and	so to sufficiently	reliably	control	for	avoiding	pro	tanto	wrongful	harm	is	to	follow procedures-probably	redundant	procedures-before	inflicting	the	harm.41 Since	punishment	necessarily	involves	intentionally	harming	others,	it must	follow	procedures	in	order	to	control	for	avoiding	wrongful	harms.	The particular procedures required depend on the nature of the practice. The intentional harm of punishment is not	wrongful only when a person has forfeited	her rights against punishment by culpably committing an	offense. The	procedures	that	must	be	followed	to	protect	against	pro	tanto	wrongful harm in the case of punishment, then, must be the procedures that sufficiently test that punishment is deserved because the offender has forfeited	her rights	against	punishment	by	committing the relevant	act	and because	she	was	culpable for	doing	so.	Such	procedures	thus	must	take	the when	we	intentionally	harm	them,	we	have	to	be	very	sure	that	the	special	circumstances are	met. 41.	This is	perhaps	more	complicated in the	case	of	defensive	harm,	where time is	often	a factor and so following procedures may be self-defeating. That is not a concern in our context of punishment. But notice that even in the context of defensive harm, the time crunch is	why	we	want the people	who are	most likely to have to deal defensive harm follow	strict	procedures	in	their	training.	We	try	to	inculcate	the	appropriate	procedures into	the	level	of	reflex	precisely	so	the	procedures	can	control	the	imposition	of	harm	even under severe time	constraints.	This is	why	police	practice shooting	courses	where some targets are innocents: it builds the procedure of checking for innocence (if at a shallow level of appearance) into the moment where wrongful harm is most likely and most devastating. 40 form of judicial procedures we are familiar with: the presentation of evidence	on	both	sides to	disinterested	third	parties,	standards	of	evidence to be met, the possibility of appeal, and so on. Because the intentional infliction of harm is such a grave matter and because we have a duty to provide security for others, when we punish we have to follow especially rigorous	and	redundant	procedures	to	ensure	that	we	are	avoiding	pro	tanto wrongful harm. Otherwise we fail to do our duty of providing security to others	and	thereby	wrong	them. In the context of	Wellman's skeptical challenge, it is also especially important	to	note	the	modal	character	of	the	right	to	security:	robust	goods have	to	control	for	outcomes	across	a	relevant	range	of	close	possible	worlds. In	Lazar's terms,	we	have to	make	sure	not	only that	we	do	not	wrongfully harm but that others do not depend on luck or chance to avoid wrongful harms. (Note that the Justlanders get exceedingly lucky that they do not wrongfully harm Sandra. It was a one in ten million-the population of Justland-chance that the lottery picked the actual robber and when you take	into	account	the	possibility	that	Sandra	committed	the	robbery	but	was not	culpable,	the	odds	of	having	not	wrongfully	harmed	her	are	even	lower.) To	provide	the	robust	good	of	security	to	others,	it	is	not	sufficient	that	we	do not	wrongfully	harm	them.	We	have	to	control	for	not	wrongfully	harm	them by	giving	them	appropriate	concern in	our	deliberations	about	how	we	act. We owe them this concern out of the basic respect that follows from recognizing that they matter, that intentionally inflicting harm is usually 41 wrong,	that	we	are	fallible,	and	further	that	punishment	is	a	practice	that	is historically	rife	with	abuse.	Punishing	without	following	rigorous	procedures wrongs	others	because	it	does	not	give	them	the	security	they	deserve. So we have a pre-institutional moral right to security that requires that we follow certain procedures, especially when	we intentionally inflict harm as in the case of punishment. But all this would be irrelevant to Wellman's	skepticism	if	we	forfeit	our	right	to	security	when	we	forfeit	our right	against	punishment.	For	example,	it	is	clear	that	if	rights	forfeiture	were absolute, i.e.	culpably	committing	an	offense	forfeits	all	of	one's	rights, then Sandra	is	not	wronged	regardless	of	any	consideration	of	security.	But	such an	absolutist	view	of	rights	forfeiture	is	implausible;	one	of	the	main	tasks	of a rights forfeiture theorist is to	make clear	which rights are forfeit and to what	extent,	thereby	giving	forfeiture	plausible	limits.	Just	because	someone committed a robbery does not we can punish them by killing them or torturing them. Such is a standard liberal commitment to the existence of limits	on treatment	demanded	by the inherent respect	due	each	person.	So the question is: even if a culpable offender forfeits her rights against an appropriate	punishment,	and	even	if	she	forfeits	her	rights	against	the	risk	of that punishment, does she forfeit her right to the provision of the robust good	of	security?	I	claim	that	she	does	not. The important point is that security is not reducible to minimizing risks	or	maximizing	expected	value.	If	it	were	then	Sandra	would	forfeit	her right	to	security,	just	as	she	forfeits	her	right	to	a	risk	of	punishment	that	she 42 deserves. But security is more than risks; again, it has non-instrumental value and is instantiated by a certain kind of treatment, not simply an impersonal	estimation	of	the	likelihood	of	harm.	It	is	a	demand	made	by	the status	of	others	as	persons	who	matter	and	whose	lives	we	have	to	express concern for by giving them a protected place in our deliberations when considering	how	to	treat	them. Its	foundation	is	the	same	as	the	right	against	torture	or	cruelty.	The right	to	security	is	an	ineliminable	part,	I	think,	of	a	broadly	liberal	approach to	punishment.	We	do	not	condemn	persons	in	their	entirety	or	in	perpetuity for committing crimes. We think that even the guilty who deserve punishment	have	moral	rights	and	can	appropriately	make	certain	demands of us. Chief among these is the concern to avoid	wrongfully harming them when	we	inflict	punishment,	not	simply	to	avoid	punishing	them	when	they are	innocent	but	also	to	avoid	over-punishing	them. If this is right, then Sandra is	wronged by the punitive lottery even though she forfeited her right against punishment because the Justlanders' violate her right to the robust good of security when they do not follow procedures	that	control	for	avoiding	inflicting	pro	tanto	wrongful	harms.	As	I wrote	above,	Sandra	is	wronged	by	the	lottery	because	she	would	have	been punished even if she had not committed the crime. The Justlanders do not show	her	sufficient	concern. The idea that punishment has to follow certain procedures in order for	people to	be	secure is intuitively	very	plausible.	Recall	Lazar's idea that 43 security is non-instrumentally valuable because of the role it plays in autonomy and in our standing in community. Being punished without concern for avoiding	wrongful harms	undermines our ability to choose for ourselves	and	indicates	a	lesser	status	than	we	deserve.	The	wrongs	are	even clearer in aggregate: in societies where punishment is not constrained by extremely demanding procedures, the possibility of arbitrary and undeserved punishment undermines people's security in precisely these ways.	They	become	less	able	to	control	their	lives,	which	is	bad	in	itself	and also	has	extremely	detrimental	consequences,	and	they	are	less	able	to	assert standing in the community, becoming obsequious or reserved. In such societies	whether	your	life	will	continue	to	be	decent	depends	largely	on	luck and	also	creates	many	more	opportunities for	abuse	and	oppression	on	the part	of	authorities	by	granting them	wider	discretion	because they	are less constrained	by	formal	procedures. In sum, the right to security grounds procedural rights that explain the	wrong	done	to	a	person	by	being	punished	without	the	punishing	agent having controlled for avoiding wronging her, the second major role we identified	for	procedural	rights	in	section	one.	In	combination	with	systemic procedural	rights,	then,	we	have	different	sorts	of	procedural	rights	that	play both important roles that we identified. But it may be the case that procedural	rights	grounded	in	security	can	also	play	the	role	of	constraining choices between institutional alternatives. For example, if what counts as sufficient control for avoiding harming requires not just following certain 44 procedures but following procedures that are embedded within, and gain reliability from,	a	sufficiently	reliable	system, then	the	right to	security	will ground systemic procedural rights as well. In that case we could have a complete	theory	of	procedural	rights	grounded	only	in	the	right	to	security. That said, my purpose here is to address the skeptical challenge to procedural rights in general, so I	will not pursue the idea of extending the (admittedly	controversial)	right	to	security. To briefly conclude, Wellman's arguments against some procedural rights	are	important	and	should	affect	how	we	think	of	the	justification	of	our judicial institutions.	However,	his	very	general	conclusion	that there	are	no general, moral, judicial, procedural rights is false. First, our general right against unreasonable risk, including unreasonable risk of punishment, grounds systemic procedural rights that demand our practices of punishment	be	institutionalized	and	that	those	institutions	follow	sufficiently reliable procedures. Some procedures will be ineliminable from such a system,	including	the	general	procedure	of	a	trial,	but	other	procedures	that we	have	sometimes	taken	to	be	important	elements	of	rule	of	law,	like	a	right against	double	jeopardy,	may	not	be.	Second,	our	right	to	the	provision	of	the robust	good	of	security	grounds	procedural	rights	because	we	have	the	right that others take care to avoid inflicting pro tanto	wrongful harms on us. Punishment is prima facie	wrongful since it is the intentional infliction of grave	harm,	so	the	only	way	to	punish	people	without	making	them	insecure is	to	use	exceptionally	reliable	procedures	to	test	the	claim	that	punishment 45 is	permissible	in	a	particular	case,	taking	account	of	the	victim	of	harm	in	all their individuality and demonstrating appropriate concern for them as a person	even	if	they	are	a	culpable	offender.42 42.	Compare	RONALD	DWORKIN,	TAKING	RIGHTS	SERIOUSLY	13	(1978).