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Old 12-04-2011, 12:38 PM
stephanie stephanie is offline
Join Date: Dec 2007
Posts: 3,921
Default Re: The Blessings of Progressivism

Originally Posted by eeeeeeeli View Post
I think of Stephanie's acceptance of social retribution. The calculation seems to be made under the assumption that the individual made a choice. Would retribution still apply if the individual had no choice.
Remember that under our legal system there are both "mens rea" requirements and insanity defenses. How insanity is defined varies somewhat (traditionally that's the M'Naghten rule, it was made somewhat more strict over the '70s and then especially post the Reagan shooting and Hinckley verdict in many states). But basically there is a problem with holding someone criminally responsible if they had no voalition. We don't take this to mean that people who have certain kinds of dimished capacity (addicts, pedophiles, people with bad upbringings, generally) aren't responsible, but this has always been one reason that I see a problem with your kind of strict determinism and how our legal system works. There is an assumption, an important one, that we have some degree of choice.*

Even if we don't, of course, structuring everything as if we do seems to be an important part of encouraging the kinds of choices we want. Deterrence, obviously, but also the social definition aspect of the abstract justice argument. Even if we cannot demonstrate that punishing pedophiles harshly deters them (and if it's truly a compulsion that is uncontrollable, it would not, although I don't buy that, at least not completely), it would still be important to our society that we identify their acting on their impulses as something seriously wrong, a terrible crime, a serious violation of the rights of and use of violence against another person. Just as it's important to identify rape generally as a serious crime. If we don't, it suggests that we don't take the act seriously, and that is a failure of our duty to those who are raped.

*It's kind of ironic, then, that this discussion is occurring in connection with a potential insanity ruling. I don't at all disagree that some defendants aren't legally responsible due to insanity, and think the argument about what constitutes insanity is a separate one. If you say everything is determined, however, that makes the special legal category of insanity irrelevant.

Last edited by stephanie; 12-04-2011 at 12:42 PM..
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