Revisiting the “But Everybody Does That!” Defense

Law and Philosophy 41 (2):419-440 (2022)
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It’s not uncommon for people to try to shield themselves from blame or punishment by saying, “But everybody does that!”. This BEDT defense seems more appealing as a defense to some offenses than to others. In a neglected paper, Doug Husak describes various types of crime to which the BEDT ought, he argues, be a defense. This paper extends his work by identifying a category he overlooks. The paper argues that often the BEDT shields from blame and punishment because the prevalence of the offense in the community shows that the punisher does not speak for the community when issuing the punishment. Since the punisher’s authority depends on its doing so, the BEDT shows in such cases that the punisher should stay its hand.



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Gideon Yaffe
Yale University

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