Grounding procedural rights

Legal Theory (1):3-25 (2019)
Download Edit this record How to cite View on PhilPapers
Abstract
Contrary to the widely accepted consensus, Christopher Heath Wellman argues that there are no pre-institutional judicial procedural rights. Thus commonly affirmed rights like the right to a fair trial cannot be assumed in the literature on punishment and legal philosophy as they usually are. Wellman canvasses and rejects a variety of grounds proposed for such rights. I answer his skepticism by proposing two novel grounds for procedural rights. First, a general right against unreasonable risk of punishment grounds rights to an institutionalized system of punishment. Second, to complement and extend the first ground, I more controversially propose a right to provision of the robust good of security. People have a right to others' protecting for avoiding wrongfully harming them: when I take an action that is reasonably expected to threaten the protected interests of others, I must take appropriate care to avoid setting back those interests. Inflicting punishment on someone--intentionally harming them in response to a violation--is prima facie wrongful, so I can only count as taking appropriate care in punishing when I follow familiar procedures that reliably and redundantly test whether they are liable to such punishment, i.e. whether they have forfeited their right against punishment through a culpable act.
Keywords
No keywords specified (fix it)
Reprint years
2019
PhilPapers/Archive ID
ADAGPR
Revision history
Archival date: 2018-10-10
View upload history
References found in this work BETA
Procedural Rights.Wellman, Christopher Heath

Add more references

Citations of this work BETA

No citations found.

Add more citations

Added to PP index
2018-10-10

Total views
135 ( #28,275 of 50,192 )

Recent downloads (6 months)
31 ( #20,278 of 50,192 )

How can I increase my downloads?

Downloads since first upload
This graph includes both downloads from PhilArchive and clicks to external links.