Criminal Desert, Harm and Fairness

Abstract

This paper has two parts. The first (sections I-III) compares retributive theories measuring criminal desert largely by the harm the criminal did or risked, with a theory measuring it by the unfair advantage the criminal necessarily took, what I shall call “the fairness theory”. This part of the paper summarizes arguments I have made elsewhere. The second part (sections IV-V) defends the fairness theory against five objections recently made against it by two important theorists, Andrew von Hirsch and Hyman Gross. The objections are variations on the charge that the fairness theory of criminal desert is implausible, incoherent, or otherwise fundamentally flawed. Each objection collapses almost as soon as one or another standard distinction is made. I conclude the paper wondering why theorists have not noticed how weak these objections are.