Abstract
In his Rights Forfeiture and Punishment, Christopher Heath Wellman argues that his preferred ‘strong’ version of rights forfeiture theory makes the moral rights of due process and a fair trial null and void for guilty offenders. They may still possess legal rights to due process, but these are not strong pre-institutional moral rights. I explain here why I disagree with Wellman. I also suggest that he is not entitled, by his own lights, to affirm strong forfeiture theory, at least in our social world.
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Notes
Wellman (2017).
Ibid., p. 4.
Ibid., p. 23.
Wellman (2017), p. 25.
Ibid., pp. 92, 96, and passim.
Ibid., pp. 96–97. The name of the case—as well as the other cases we will encounter in this section—is mine.
Ibid., p. 97.
Ibid., p. 98.
As Wellman realises: see p. 99.
See Duff (1986), esp. Chapter 4.
For Wellman’s replies to Duff, see Wellman (2017), esp. pp. 104–108.
Wellman (2017), p. 105.
Ibid., pp. 106–107.
Wellman (2017), p. 108.
Ibid., p. 109.
See, ibid., pp. 92–94 for a discussion of double jeopardy, and pp. 94–95 for a brief treatment of statutes of limitations.
Ibid., p. 101; original emphases.
Ibid., p. 36.
Ibid., p. 93; emphases withdrawn.
Ibid.
Ibid.
Ibid., pp. 13, 23, 40.
I myself doubt that even this much should be granted: see below.
In his discussion of the (quasi-consequentialist) doctrine of ‘Samaritanism’, Wellman (2017), p. 54, suggests that Samaritan considerations are always defensible, but not always applicable. What I am suggesting is that there is pressure on Wellman to come to the same view about strong forfeiture.
The story is laid out in Chapter 3.
Ibid., p. 31.
He refers to this as the ‘mirroring view’ in the discussion, towards the end of Chapter 5, of international human rights: see pp. 114–118.
See Sect. 2, above. Wellman depends on the point in his argument for the Instrumental Feature.
References
Duff, R. A. (1986) Trials and Punishments. Cambridge: Cambridge University Press.
Lang, G. (2017) ‘What Follows from Defensive Non-Liability?’, Proceedings of the Aristotelian Society 117: 231–52
Lang, G. (2014) ‘Why Not Forfeiture?’, in How We Fight: Ethics in War, ed. H. Frowe and G. Lang, pp. 38–61. Oxford: Oxford University Press.
Wellman, C. H. (2017) Rights Forfeiture and Punishment. Oxford: Oxford University Press.
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Lang, G. Forfeiture and the Right to a Fair Trial. Criminal Law, Philosophy 14, 203–213 (2020). https://doi.org/10.1007/s11572-019-09497-6
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DOI: https://doi.org/10.1007/s11572-019-09497-6