Grounding procedural rights

Legal Theory (1):3-25 (2019)
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Contrary to the widely accepted consensus, Christopher Heath Wellman argues that there are no pre-institutional judicial procedural rights. Thus commonly affirmed rights like the right to a fair trial cannot be assumed in the literature on punishment and legal philosophy as they usually are. Wellman canvasses and rejects a variety of grounds proposed for such rights. I answer his skepticism by proposing two novel grounds for procedural rights. First, a general right against unreasonable risk of punishment grounds rights to an institutionalized system of punishment. Second, to complement and extend the first ground, I more controversially propose a right to provision of the robust good of security. People have a right to others' protecting for avoiding wrongfully harming them: when I take an action that is reasonably expected to threaten the protected interests of others, I must take appropriate care to avoid setting back those interests. Inflicting punishment on someone--intentionally harming them in response to a violation--is prima facie wrongful, so I can only count as taking appropriate care in punishing when I follow familiar procedures that reliably and redundantly test whether they are liable to such punishment, i.e. whether they have forfeited their right against punishment through a culpable act.

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N. P. Adams
University of Virginia

Citations of this work

The Procedure of Morality.Ori Herstein & Ofer Malcai - 2024 - Journal of Ethics and Social Philosophy 27 (1).

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References found in this work

Towards a right against risking.John Oberdiek - 2009 - Law and Philosophy 28 (4):367 - 392.
Risky Killing and the Ethics of War.Seth Lazar - 2015 - Ethics 126 (1):91-117.
Procedural rights.Christopher Heath Wellman - 2014 - Legal Theory 20 (4):286-306.

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