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Published online by Cambridge University Press: 30 April 2015
In this essay, I argue that absent special circumstances, there are no moral, judicial procedural rights. I divide this essay into four main sections. First, I argue that there is no general moral right against double jeopardy. Next, I explain why punishing a criminal without first establishing her guilt via a fair trial does not necessarily violate her rights. In the third section, I respond to a number of possible objections. And finally, I consider the implications of my arguments for the human right to due process.
1 Nickel, James W., Making Sense of Human Rights 110 (2d ed.Blackwell, 2007)Google Scholar.
2 I do not mean to suggest that theorists necessarily think the right to a fair trial is absolute, but I certainly regard belief in moral procedural rights as the orthodox position. As with most orthodox positions, the existence of procedural rights is more often presumed than defended. Indeed, some theorists (especially those working in the Kantian, Hobbesian, and Hegelian traditions) incorporate the existence of procedural rights into their very definitions of punishment. In his canonical paper, Two Models of Rules, for instance, John Rawls specifies that:
a person is said to suffer punishment whenever he is legally deprived of some of the normal rights of a citizen on the grounds that he has violated a rule of law, the violation having been established by trial according to due process, provided that the deprivation is carried out by the recognized legal authorities of the state, that the rule of law clearly specifies both the offense and the attached penalty, that the courts construe statutes strictly, and that the statute was in the books prior to the time of the offense.
Rawls, John, Two Models of Rules, in John Rawls: Collected Papers 26 (Freeman, Samuel ed., 2001)Google Scholar.
3 More precisely, I should say that there are no general, moral, judicial, procedural rights. The various components of this more cumbersome description are explained below.
4 Given that no one seriously believes that this person is guilty, one might question whether this condemnation and hard treatment actually constitute punishment. This is a reasonable question, but my view is that a person who has been framed by a corrupt authority makes perfect sense when she complains of being wrongly punished. And if this is correct, then punishment does not require that those who impose the hard treatment necessarily believe that the defendant is actually guilty. I am grateful to Antony Duff for raising this potential concern.
5 Wellman, Christopher Heath, The Rights Forfeiture Theory of Punishment, 122 Ethics 371–393 (2012)CrossRefGoogle Scholar.
6 Those who hold that one's rights cannot be violated unless one is harmed will be skeptical of this claim. If one believes that risk is a purely epistemic matter, for instance, then one might deny that A wrongs B when A engages in (what appears from A's perspective to be) risky behavior that does not result in harm to B. See Alexander, Larry, Are Procedural Rights Derivative Substantive Rights? 17 Law & Phil. 19–42 (1998)Google Scholar. In order to be maximally concessive to defenders of procedural rights, I argue that Sandra's rights are not necessarily violated even if we presume that each of us enjoys a right not to be exposed to unreasonable risks.
7 I am indebted to Carl Wellman for pressing this question.
8 Robert Nozick, Anarchy, State, and Utopia (1974).
9 In fairness to Nozick, I should note that he has several other (extremely original and sophisticated) arguments regarding procedural rights that I do not review here, in part because (as he acknowledges; id. at 103) some of these arguments merely assume the existence of procedural rights, but also because the criticisms I offer below of R.A. Duff's arguments apply equally, mutatis mutandis, to Nozick.
10 R.A. Duff, Trials and Punishments (1991), at 114.
11 Id. at 113.
12 Another way of characterizing this distinction is to say that permissibility turns on the facts, whereas culpability depends upon the agent's beliefs. For a recent defense of this approach, see Graham, Peter A., In Defense of Objectivism about Moral Obligation, 121 Ethics 88–115 (2010)CrossRefGoogle Scholar.
13 Duff, supra note 10, at 112–113. Similarly, Nozick, supra note 8, at 103, wonders:
It is true that an unreliable procedure will too often find an innocent person guilty. But does applying an unreliable procedure to a guilty person violate any right of his? May he, in self-defense, resist the imposition of such a procedure upon himself? But what would he be defending himself against? Too high a probability of a punishment he deserves?”
14 Duff, supra note 10, at 115.
15 One might object that Elizabeth not only acts culpably, she acts impermissibly. As Simmons, John, Locke and the Right to Punish, 20 Phil. & Pub. Aff. 340 (1991)Google Scholar, insists, “If I take property from someone who, completely unbeknownst to me, had previously stolen my property, my taking is still theft (and morally impermissible)—even though the property I took from him I might have been entitled to take, if I had taken it as reparation.” Against this objection, and in defense of the claim that Elizabeth's rights are not violated, notice how awkward it would be to suggest that an informed third party might permissibly interfere with Philippa's actions. After all, what would this third party say to Philippa to justify this interference: “You are in fact entitled to the twenty dollars you are taking, but I will stop you from reclaiming it because you believe it belongs to Elizabeth”?
16 Perhaps most notably, Thomas Christiano invokes publicity in his egalitarian defense of democracy in his impressive book, Thomas Christiano, The Constitution of Equality (2008). Christiano argues that equality requires democracy because one is not fully treated as an equal unless one is publicly treated as an equal. And since only democracy publicly treats all citizens as equals, it alone satisfies the requirement that all citizens be treated as equals. (Not surprisingly, my reaction to Christiano's argument parallel's my response to Duff's: I agree that it is preferable to be publicly treated as an equal, but I am not convinced that one is not fully equal unless one is publicly equal. I agree that publicity and equality are both good things, but, contra Christiano, I am inclined to insist that they are distinct things.)
17 Duff, supra note 10, at 115.
18 Duff, supra note 10, at 117.
19 Id. at 119.
20 Duff might respond that citizens are owed the right to be heard and surely they do not forfeit their right against punishment and their standing as citizens. After all, as he emphasizes in Trials and Punishments, Duff believes liberals must conceive of trials (and punishments) as communicative because liberals are committed to respecting the autonomy of their citizens. I am a card-carrying liberal, and I agree that we should respect citizens’ autonomy, but I do not think one violates another's rights whenever one fails to provide reasons publicly for one's actions to this person. I do not believe that Elizabeth violates Philippa's autonomy when she takes the twenty-dollar bill from Philippa's stack without publicly justifying this action, for instance.
21 I am grateful to Ron Mallon for suggesting this possible response.
22 H.L.A. Hart, Prolegomenon to the Principles of Punishment, in Punishment and Responsibility: Essays in the Philosophy of Law 5 (1968).
23 Victor Tadros, The Ends of Harm (2011), at 308–309.
24 John Rawls, The Law of Peoples (1999).
25 Allen Buchanan, The Heart of Human Rights (2013), at 17.
26 Id at 43.
27 Nickel, supra note 1, at 70.
28 Henry Shue, Basic Rights (2d ed. 1996), at 17.
29 Nickel, supra note 1, at 106.
