Introductory remarks: criminal law panel.

• Author: Ward, Cynthia V.
• Position: CRIMINAL LAW

INTRODUCTION

The topic of Law and Morality is a capacious one, and the essays on this Panel approach it from different corners of a very large tent. In The Role of Moral Philosophers in the Competition Between Deontological and Empirical Desert, Paul Robinson wonders not so much about the role of morality, but about the role of moral philosophy, in resolving some of the long-contested issues that beset the law of crime. Acknowledging the importance of desert as a justification for criminal punishment, Professor Robinson envisions a competition between two subconceptions: deontological desert, according to which blameworthiness is assessed by reference to acontextual principles of right and good; and empirical desert, which grounds judgments about blameworthiness in the actual intuitions of citizens, as collected and evaluated using the methods of social science. (1) Robinson argues that contemporary moral philosophy focuses heavily on the investigation and analysis of existing moral intuitions, and that this focus, although useful in some ways, threatens to inhibit or destroy the important deontologica] role that moral philosophy should play in the criminal arena. (2) That role, he argues, is to provide a "transcendent check" on our existing intuitions about justice to ensure that those intuitions are not wrong according to the acontextual principles of right and wrong that deontological conceptions of desert take as central. (3)

Professor Robinson's thesis invites a host of interesting questions, only a few of which can even be named in this brief introductory essay. Is there really a strong and analytically defensible distinction between deontological and empirical desert? If so, are these two subconcepts really in "competition" with each other in a way that should matter to the enterprise of moral philosophy? As either an analytical or an empirical matter, how should one distinguish between a "transcendent" principle of right and wrong and a principle that becomes the basis for philosophical interrogation because it reflects a widely shared and empirically verifiable intuition about justice? Are the two varieties of principle innately different in kind...