Wednesday, October 11, 2017
In previous papers I have argued for these two points: first, that the free will realist who would justify punishment has the burden of establishing to a high level – perhaps beyond a reasonable doubt, but certainly at least by clear and convincing evidence – that any person to be punished acted freely in breaking the law; and, second, that that level of evidence is simply not there. In this paper I argue for two parallel points: first, that the free will skeptic who would justify universal criminal quarantine is also faced with a burden of proof, the burden to establish to a similarly high level that no human being ever acts freely; and, second, that sufficient evidence for that conclusion is not there either. If we must choose between punishment and quarantine, the methods that constitute punishment are preferable to those that constitute quarantine, and so it may be that if there is not sufficient evidence to support either punishment or quarantine, the better course for the state is to choose to punish, as some have argued. If we are not to accept that conclusion, I believe, we must find an institution that, unlike both punishment and quarantine, can be justified on the evidence, but an institution which employs not the methods of quarantine but those of punishment. I suggest the “takings” doctrine as a basis for carving out such an institution. I solicit your comments.