Reply to Corrado

Abstract

What I shall try do here is (briefly) clarify what seem the three chief differences remaining between Corrado's position and mine. They are, I think, so fundamental clarification may be more useful now than any attempt at resolution. They make an informative list: if I am right about any one of them, Corrado's argument either collapses or becomes uninteresting. I Moral or Legal Retributivism? Corrado believes retributivism forbids preventive detention. I believe it does not, indeed, it provides a limited defense of preventive detention (though one of no practical use). What explains this difference? Part of the explanation seems be a difference in how we understand retributivism. Corrado is, it seems, a moral retributivist; I, a legal retributivist. Corrado and I agree (as he says) that must be before someone can be held liable for reckless endangerment.(1) For Corrado, is an (as he calls it), a standard prior law (or, at least, prior a law forbidding reckless endangerment). So, when Corrado says I do not succeed in providing an argument to show the dangerous person who fails detain himself violated some standard which would warrant punishing him, he must mean an argument relying on wholly independent of the law in question.' Insofar as is what he means, he is certainly right - but also beside the point. For me, the something which must be violated before someone can be held liable for reckless endangerment is the law against reckless endangerment, nothing more.(3) To this, Corrado might respond I have only restated the question. I must now say what justifies the law, meaning what pre-legal (moral requirement) the law in question mirrors. Instead, I offered a liberty right (the police power) and a social benefit (subject constraints of rationality and justice).(4) I said nothing about a requirement or standard) morally binding on the dangerous law or no law. The only standard I mention - reasonable car - a legal standard. So, for a moral retributivist, my answer might seem no answer at all. But, for a legal retributivist, it is a perfectly good answer. For a legal retributivist, the law (of a relatively just legal system) can itself change the moral geography, turning morally permissible acts into acts morally forbidden or required. So, for example, morality would - absent Chicago's parking ordinance - allow me park all day on State near 31st. I have no pre-legal obligation move my car at rush hour. But, because of a law, not only am I legally obliged remove my car at rush hour, I am also morally obliged as well. I do not remove my car in time, I may be punished (by a small fine). That punishment is morally permissible because it is legally justified - and the law itself is a proper exercise of the police power. We must, then, distinguish between what justifies a statute (which belongs the theory of legislation) and what justifies imposing such-and-such punishment for violation of the statute (which belongs punishment theory proper). While moral retributivism is a theory of both legislation and punishment, legal retributivism is only a theory of punishment. So, of course, I reject Corrado's parody of my argument: If do not do X, a great tragedy will follow. Therefore, we may punish if do not do X. No matter how great the tragedy, we may not (legally) punish them unless violate a law; and we may then only punish as the law prescribes. Doing (moral) wrong is not (as a moral retributivist might suppose) enough justify (legal) punishment; there must be legal wrong as well; and legal wrong, as opposed moral wrong, requires no great tragedy if they do not do X. What it does require is a law requiring do X.(5) Corrado seems suppose a (pre-legal) standard of dangerousness (or obligation not be dangerous), if it existed, would be sufficient justify punishment. …