By In The Real World Comments (21)

Michael McKenna: “Flake’s Mistaken Appeal to a Principle of Innocence”

This piece, written by Michael McKenna (Arizona), is intended as a kind of generally accessible op-ed in response to one aspects of the Kavanaugh confirmation hearings.

Here now is McKenna:

Arizona’s United States Senator Jeff Flake has made a mistake. He should correct it. Just this morning [when this was written], as a member of the Senate Judiciary Committee, Flake voted along party lines to advance to a full vote in the U.S. Senate the nomination of Judge Brett Kavanaugh to the Supreme Court of the United States. Flake cited the legal and ethical principle that a person should be treated as innocent until proven guilty. But Flake’s appeal to this principle to justify his vote is not ethically defensible. Let me explain.

As a general principle, Flake seems to assume, we should regard people as innocent until proven guilty. Whatever exactly that standard of proof involves, it requires stronger evidence than is required to justify believing something. Believing Dr. Christine Blasey Ford and not Judge Brett Kavanaugh is consistent with lacking proof that Kavanaugh was guilty. That’s Flake’s way out. Nevertheless, it does not stand up to scrutiny.

Here is the problem with Flake’s reasoning: In the law, the principle innocent until proven guilty is sacrosanct because it concerns the authority of the state to punish a person. In punishing, we are denying a person something to which, in the absence of special conditions, they are legally and also morally entitled—not to be locked up, not to be intentionally caused unjustified harm, not to have their property confiscated, or whatever. So there had best be a high standard for justifying the state’s punishment of a person. But being a member of the Supreme Court is not a position to which Kavanaugh or any person is entitled. Were his nomination to be scotched at this point, he would not be denied something to which he has a right. He would not be punished. He just would not get something that he wanted very much. To think otherwise is to think that he is entitled to this high office—an absurd presumption. And since—at best—all we have here is uncertainty, there is overwhelmingly good reason not to appoint him.

You don’t think so? Consider this: There are many contexts in which lack of proof about whether a person is guilty of something is consistent with having a compelling reason not to assign them a position, given the charges against them. Here is a simple example: You’ve learned that Uncle Fred has been accused of molesting children. While there is not adequate proof, the charge is credible. Despite this, you believe he is innocent. You think he is a good man. He’s family. Still, you’re not sure. You don’t have enough evidence to discredit the allegation. Do you leave your kids with Uncle Fred for the weekend while you head off on a vacation?

I’ll bet your answer to this is a clear “Hell no!” If so, note that in this case, unlike the way I am imagining Flake’s position, you actually believe Uncle Fred, the accused, and disbelieve the accusers. Still you see the wisdom of erring on the side of caution. Why? There’s too much at stake. Of course, I presume that Flake is prepared to believe Ford, the accuser, and disbelieve Kavanaugh, the accused. So it should actually be easier in this case to see the wisdom of erring on the side of caution. But suppose this is not so. Suppose Flake actually believes Kavanaugh and not Ford, or suppose instead he is just not sure whom to believe. I say, just like your considered judgment about leaving your kids with Uncle Fred, Flake has overwhelming good reason to resist Kavanaugh’s appointment.

Still not convinced? Ask yourself why. Here’s one reason someone might resist my argument. In the case of Uncle Fred, there’s something of immense value at stake. But in the case of Kavanaugh there is not. So, contrary to what I argued above, in this case there is not overwhelmingly good reason to resist Kavanaugh’s appointment. Even if after all he is guilty, this should not disqualify him from being appointed to the Supreme Court of the United States. Why not? Well, it’s just not such a big deal. It was a long time ago. It was probably all a big misunderstanding. He was a kid. He was drunk. It was part of the culture. It’s all in the past. If that’s what you believe, then let’s just be honest. There’s no principle of guilt and innocence at work here, except as a charade.

I confess, I strongly suspect that this is what animates many right now who remain committed to supporting Kavanaugh even after witnessing Dr. Christine Blasey Ford’s testimony yesterday. It does not matter even if the man is guilty of this assault in his youth. Maybe it is what animates Senator Flake. I sure hope not. Jeff Flake has recently been an honorable voice of sanity and wisdom in the Republican Party. He has had the courage to resist the destructive policies of the Trump administration. I for one am prepared to give him the benefit of the doubt.

It is heartening to learn that later this very morning—indeed while I was drafting this essay—Senator Flake is now demanding an FBI investigation before any vote proceeds to the Senate floor. Good on him! Still, we should all bear in mind that the upshot of that investigation might yield no more than inconclusive results. If so, my argument stands. The principle of innocent-until-proven-guilty is an important guiding principle in our legal and ethical reasoning, but it does not apply to the decision now before the U.S. Senate. In the absence of clear evidence that Dr. Christine Blasey Ford is notto be believed, the right call is to stop the nomination of Judge Brett Kavanaugh to the Supreme Court of the United States of America. To think otherwise is to think there’s not that much at stake. If you think that, well, you are wrong.

Michael McKenna

Professor of Philosophy

University of Arizona

21 Responses to Michael McKenna: “Flake’s Mistaken Appeal to a Principle of Innocence”

  1. David Sobel says:

    Exactly!!! It is surely false that you always need proof of guilt before it is ok to act in ways that respond to evidence of guilt. And contexts where X is not entitled to something make it more likely permissible to withhold that thing from a person based on evidence of guilt that falls short of proof. But note that the law does not really actually respect the thought that we cannot act on evidence of guilt that is short of proof in legal contexts. We arrest people without legal proof. And in civil cases “preponderance of the evidence” is considered sufficient to take someone’s property. The claim that we cannot act on evidence of guilt that is short of proof is not abided by even by the law and even in contexts where people do have a right to the stuff at stake. It would be absurd to suggest that such a standard should generally be in play outside of legal contexts and even when stuff people do not have a right to is at stake.

  2. Shane D. Courtland says:

    However, given the political nature of the Kavanaugh mess (in that people have strong political reasons to deny or affirm his candidacy — separate from any truth regarding the assault) shouldn’t we want something akin to “innocent until proven guilty” and a fairly high standard of proof (though, not full “beyond reasonable doubt”)? Otherwise, people might use such accusations as a smokescreen for their true political motivations (e.g., We don’t like the policies of person X, but we find our distaste of his/her policies falling upon deaf ears … so we go searching for potential allegations against X… to hope that they will carry the day). In fact, some on the left have claimed this happened to Bill Clinton (with some of his accusations) …or… currently, with Keith Ellison.

    Moreover, this extra motivation makes the Uncle Fred example disanalogous…

  3. understandably anonymous says:

    I want to ask about this reasoning:

    “Even if after all he is guilty, this should not disqualify him from being appointed to the Supreme Court of the United States. Why not? Well, it’s just not such a big deal.”

    I disagree that this is what animates people who support Kavanaugh, or at least those who (like me) oppose Kavanaugh but are ambivalent about the terms on which many people seem to be debating the issue. I oppose Kavanaugh because there’s excellent evidence both that he’s a partisan operative and, given his response to Blasey-Ford’s testimony, that he’s mendacious, injudicious, and inhumane. I think these are all excellent reasons why someone should not be on the Supreme Court.

    However, I’m not convinced that the fact that he’s guilty should disqualify him in itself. This is emphatically not because I think “it’s not such a big deal.” Of course it’s a big deal–sexual assault is horrible! But the fact that someone did horrible things, or was a horrible person, 35 years ago doesn’t mean that they’re a horrible person now. People change, and in any case getting into the Supreme Court is not the same as getting into heaven. What matters to me in a Supreme Court justice is whether they will interpret the law impartially, intelligently, and humanely; I agree that their overall moral history bears evidentially on this, but I doubt that it does so very strongly. (Tolstoy treated women horribly in ways that go way beyond what anyone’s accused Kavanaugh of, but still wrote profoundly intelligent and humane novels.)

    Is this so unreasonable? I feel that lots of the people I’m friends with on social media would regard the view that Kavanaugh’s guilt wouldn’t be a clearly overwhelming reason not to appoint him as beyond the pale. I respect these people a lot, so I’m certainly open to the possibility that I’m missing something. But could you help me see what?

  4. David Shoemaker says:

    A reminder that we strongly urge people to post comments with their names attached, non-anonymously. Typically, anonymous comments are deleted, which, we think, has preserved the excellent tone of discussions on the Soup. We understand, however, that the nature of this particular post is such that preserving anonymity might be justified for some commenters (as in the case above). We will assess them on a case-by-case basis, therefore. The bar for anonymity will still be quite high, though; if there are ways of saying what you think needs saying non-anonymously, then by all means please do so.

  5. Matthew Arthur Jernberg says:

    What standard of evidence is appropriate for the authority of public opinion to punish accused public figures with shame? Beyond a reasonable doubt is too high a standard, but I suspect that a mere preponderance of evidence is too low.

    I think this is an ethically interesting question and suspect that whatever this middle bar is, in the minds of many readers Ford’s testimony surpasses it. My concern is with the moral function of public shaming, especially online.

  6. David Sobel says:

    Matthew,

    Mill distinguishes punishing with public opinion from what he calls the “natural” response to evidence that someone has behaved badly which does not aim at punishment. That strikes me as an interesting and perhaps complicated distinction. You are focused, I think, on people whose aim is to punish, not merely register disapproval or whatever based on evidence of wrongdoing. I’m not sure the bulk of the effort to deny Kavanaugh a seat on the Court is designed to punish rather than deny someone who is seen as (likely enough) unfit for or unworthy of such a position.

  7. David Sobel says:

    Shane,

    In Ford’s case, my understanding is, we have good evidence that she mentioned this event and his name to several people well before Kavanaugh was nominated. If so, it is not clear to me why we should think she was motivated by partisan politics. Perhaps you will say that Dems were motivated to find such a person due to partisan politics. But if we think Ford credible and not motivated by politics, what relevance should that possibility have in this case? Or perhaps you are saying that some will vote against Kavanaugh using Ford’s testimony as an excuse for such a vote. I suppose that is possible. But should we change the proper standard of evidence for all based on possible bad motivations of some? If people are going to not vote on the basis of evidence, why think that changing the standards of evidence will get them to vote according to the proper standards? Won’t this just lead to even fewer people voting on the basis of the correct standard? Shouldn’t the main question be whether Ford’s testimony (and, of course, the other allegations) in fact warrants a vote against him? And isn’t changing the standards of evidence where things become politicized just incentivizing making things politicized when people are caught behaving badly? Finally, and most importantly, are you assuming for some reason that most of the people voting for political reasons rather than on the merits of the case are voting against Kavanaugh rather than for him? Only with that assumption in play is it clear why the remedy would be to raise the epistemic burden on the accusers. But I see no defense of that claim at all.

  8. Shane D. Courtland says:

    Just to be clear… I was not claiming Ford was politically motivated to make her accusations.

    I am claiming that people (other than the accuser) will use such accusations to smear others with whom they disagree on political matters….or, at the very least, to go beyond the evidence when determining the guilt of the accused.

    W/ “But should we change the proper standard of evidence for all based on possible bad motivations of some?” Yes…it should always be higher than a mere credible accusation … becuase of the perverse incentives involved.

    W/ “If people are going to not vote on the basis of evidence, why think that changing the standards of evidence will get them to vote according to the proper standards?” There is no way to ensure this…but this is also true with jury trials.

    W/ “Shouldn’t the main question be whether Ford’s testimony (and, of course, the other allegations) in fact warrants a vote against him?” Sort of I guess…as long as people understand the difficulty of determining what actually happened…and don’t go beyond the evidence.

    W/ “And isn’t changing the standards of evidence where things become politicized just incentivizing making things politicized when people are caught behaving badly?” As I said…with politics we should always keep the standard high…becuase we recognize that the perverse incentives are already there (from the left and the right).

  9. David Sobel says:

    I’m lost. Why is the proper correction to people on the left and right voting ideology rather than evidence to raise the burden of proof on the accuser?

  10. Shane D. Courtland says:

    The accuser only need make the accusation…however, the investigation should have a high standard of proof becuase of the partisan incentives on both the left and the right. The greater amount of evidence required (even as a mere norm), hopefully, will help avoid motivated reasoning and bias…but, as you rightly point out, this does not ensure that they will pay attention to the additional evidence (or even obey the norm).

  11. Hi Understandably Anonymous,

    Thanks for your comment. It’s nicely expressed. Might I say before I reply to you that I am sorry that as things are you understandably wish to post anonymously? I get it.

    Let me begin by clarifying. I meant in that paragraph to enlist a range of explanations for why some might think that even if it is granted that Kavanaugh is guilty, there is nothing of immense value at stake now by appointing him to the Supreme Court. “It is no big deal” was meant merely as one rationale among others some might have. Note just after that sentence, I also mentioned the thought that it was all in the past, and that they were high school kids. I take these considerations to be in the vicinity of your far more thoughtfully expressed way of presenting the point: The charges, even if true, are not disqualifying because the former abhorrent behavior is not indicative of what we might expect of this much different man thirty-five years after the fact.

    Of course, you might be right be that, in comparison with other rationales, your proposal captures better the reasoning of some who remain supporters of Kavanaugh’s appointment. But note that this does not affect my point in that paragraph. If this is what is animating people, an appeal to a principle of innocence is beside the point. It is not that we should treat him as innocent until proven guilty. It is, rather, that the risk that he is guilty just is not that great because, supposing he is, there remains no compelling reason to thwart his appointment.

    You ask if this is so unreasonable. I actually think it is. Of course, what you are asking is why. A proper answer I think would require far more than I’ll write here. But I’ll briefly offer two reasons.

    First, you grant that moral history of the sort in question bears evidentially on the whether a person could be expected to interpret the law fairly and humanely, but not very strongly. Suppose you are right about this. (I don’t think you are. But I’ll grant it.) Still, since so much is at stake, even a slight risk seems enough to disqualify a person. If there is a slight risk that my auto mechanic will have a brief mental glitch for three seconds, I’m not too worried about him working on my car. Different story for my brain surgeon. At least as I am thinking of it, those appointed to the Supreme Court are entrusted with a body of law with a past that includes some of the most important encoded moral achievements in the (checkered) history of our country. We should apply an exceedingly high standard and be especially risk-averse when it comes to those whom we entrust to carry on that work.

    Second, these appointments also have symbolic value. Consider what message we would send to all who are subject to the law that some crimes are precisely the sort that if in the remote past are not disqualifying for this office. What message would this send to women in this country? Imagine a person nominated to the Supreme Court in the 1960s who early in his youth, say the late 1940s, participated in (or even just attended for entertainment) lynchings in the South during Jim Crow. What would it have said to African American citizens if we were to have said of this “reformed” man that this too could be set aside for a nominee who will now decide how the law applies to them?

    I hope my replies were helpful and that I understood you charitably. And thank you again for your post.

  12. Rhys Southan says:

    The definition of punishment being used here seems narrow and revisionary. It would rule out a lot of what we typically call punishment. Say a teenager got the leading role in their high school’s musical, but then their parents found out their teen drank alcohol at some party. If the parents prohibited their teen from being in the musical, because the teen drank alcohol, most of us would probably want to call this a punishment, even if the teen didn’t have a right to be in this musical. Similarly, if someone got fired from their job for insulting their boss or something like this, it would be plausible to call this a punishment. Speeding tickets are considered punishment, and it’s unclear that these are depriving us of something we have a moral or legal right to. There might be better examples, but it does seem like there are instances of punishment where we probably don’t want to say deprives someone of a legal or moral right.

    You could probably have made the same general point you’re making in this article in a way that treats it as irrelevant whether Kavanaugh is potentially being punished or not. David Sobel’s comment is helpful here. You could just say, “No one actually goes by the ‘innocent until proven guilty’ standard, even though people frequently appeal to this standard when they want to protect someone they like.” That seems right to me.

    Or you could say, “Well maybe the US court system allegedly uses that innocent until proven guilty standard when it comes to levying fines or prison sentences, but the question of whether Kavanaugh gets the Supreme Court job falls outside that system, so we don’t have to use that standard here.” However, then we might wonder “why does the US court system use this innocent until proven guilty standard and why don’t we use it any time benefits or harms are at stake”? You answered that question by saying that the US court system uses that standard because punishments are at stake — with an implied principle that we should go by innocent until proven guilty whenever someone might be punished. I’m more inclined to think, “It just is the case that the US court system claims to go by that standard, and we typically don’t rely on it in other contexts. There’s not necessarily any principle here.” My thinking may be unsatisfying to those who think there is something more to the US system’s alleged adherence to innocent until proven guilty than historical contingency, but I don’t think that defining punishment so narrowly is the right way to escape that dissatisfaction.

    Here’s a weird point I thought of while writing this comment, and I’m not sure how good it is…

    If legal punishment is the standard, then we should think that “innocent until proven guilty” applies to everyone who is testifying while under oath, since they are all liable to punishment depending on how their words align with events in the world, as perjury is a punishable crime. This means that even given your definition of punishment, “innocent until proven guilty” is relevant here. But more interestingly, this means we should think of Ford as innocent (telling the truth that someone assaulted her, and it was definitely Kavanaugh, and she’s not mistaken about this) until proven guilty (of lying), and we should also think of Kavanaugh as innocent (telling the truth that he did not assault Kavanaugh) until proven guilty (of lying).

    This potentially leads to an incoherent conclusion. Until we have definitive “beyond a shadow of a doubt” proof either way, we are obligated to think and act as if both Ford and Kavanaugh are telling the truth about whether or not he assaulted her, since they could both be punished for lying. However, we cannot think and act as if both Ford and Kavanaugh are telling the truth. This might suggest “innocent until proven guilty” is a nearly impossible standard that can only be used in very rare circumstances, like when there is one person on trial and no witnesses of any kind.

    Finally, just to clarify where I stand on this issue… Ford is telling the truth and Kavanaugh is lying, and Kavanaugh should not be on the Supreme Court.

  13. David Sobel says:

    Rhys,

    I’m not sure exactly who you are addressing with your remarks. I said some things about punishment so perhaps it is me. I certainly did not mean to say that one can only be punished by withholding things one has a right to. What I said was that the bulk of people advocating for Kavanaugh to not be on the SCOTUS were not primarily motivated to do so as a punishment. The committee that decides to not give a citizen of the year award to someone who has raped people need not do so as a way of punishing but rather simply because the rapist does not merit the prize–the person’s bad actions are relevant to whether they merit the position and the prize is withheld not as a punishment but because the person does not merit the award.

  14. Hi Matthew,

    You ask a good question about the authority to punish figures by shaming them. I take it that your question is due to the sense that Brett Kavanaugh is being punished in the court of public opinion, and that the sentence is being issued in the form of public shaming, say on the internet.

    Of course, as David Sobel just remarked in reply to Rhys Southland, the treatment of Kavanaugh by the Senate committee is not a form of punishment at all. To punish is to issue a sanction or penalty of some sort with the intention of harming a person who it is judged deserves the hard treatment due to his or her culpable wrongdoing. Of course, we often use the word “punish” figuratively, as in “She was punished by the rough surf on her swim to shore.” In that sense, it seems pretty clear that Kavanaugh and his family have been and are being punished. But as far as the public procedure of the Senate is concerned, it is not intended as a mechanism for issuing sanctions to apply to the man. It is an examination of aspects of his character and past that are taken to have a bearing on his suitability for the position.

    All that said, it does seem that Kavanaugh’s public treatment is being taken by many, on the internet, social media, in the press, and in venues like SNL, as an occasion to punish by public shaming. This involves lots of piling on. I guess all I want to say is that I don’t think public opinion has any authority here at all, and for obvious reasons. One is that it is far too crude a tool to be able to distribute any “deserved” punishments proportionately, or in ways limited to those who deserve it. Indeed, I’ll bet Kavanaugh’s wife and children are paying a far greater price for this than he is. Note how many people are enjoying the unraveling of Kavanaugh. Think of Matt Damon’s mocking of him on that SNL skit. (Yes. I laughed. Thought it was hilarious.) That will stay with Kavanaugh through his death. His great grandchildren will watch this. But what Kavanaugh is being grilled for is his behavior after a week of sleepless nights, death threats to his family, having to explain to his daughter what he is being accused of. How many people could withstand publicizing a laundry list of the worst moments of their youth, put on display for all the world to see as a source of amusement and mockery? It is grotesque and undignified. And it appears that maybe the man has a drinking problem that he’s not fessing up to—something that the liberal crowd will all say we should treat as an illness and not a fault, at least when they are not out to disparage someone.

    (Having said that, I will admit that for the next two weeks, any time anyone criticizes me, the first thing I will do is say, “I like beer. Alright? I drink beer. Do you drink beer?”)

  15. understandably anonymous says:

    Hi Michael,

    Thanks for the charitable and illuminating reply.

    While we’ll have to agree to disagree about the evidential significance of past wrongdoing (even weighted in proportion to the risk), you’ve convinced me about the symbolic value of the appointment; the analogy to Jim Crow was really helpful. It also helps me understand how Kavanaugh’s case is disanalogous to another case I’d been thinking about: I wouldn’t want someone disqualified from the Supreme Court just because they’d committed a string of violent armed robberies in their youth, so long as they’d clearly taken responsibility for their crimes and had become a very different person. (Of course, Kavanaugh is also disanalogous in the additional very important respect that he evidently he hasn’t taken responsibility for his sexual assault.)

    Again, thanks!

  16. Rhys Southan says:

    Hi David,

    Thanks for your response.

    In the article, Michael McKenna wrote, “In punishing, we are denying a person something to which, in the absence of special conditions, they are legally and also morally entitled — not to be locked up, not to be intentionally caused unjustified harm, not to have their property confiscated, or whatever. So there had best be a high standard for justifying the state’s punishment of a person. But being a member of the Supreme Court is not a position to which Kavanaugh or any person is entitled. Were his nomination to be scotched at this point, he would not be denied something to which he has a right. He would not be punished.”

    This is the definition of punishment I was referring to. Michael McKenna is defining punishment as a withholding of something to which someone is entitled, or has a right to. Based on your response — “I certainly did not mean to say that one can only be punished by withholding things one has a right to” — it sounds like we might agree that this definition of punishment doesn’t work.

    Giving the definition another look, the “not to be intentionally caused unjustified harm” line creates an additional problem for the definition. This line implies that one way we may punish is to cause unjustified harm. It would be consistent with this definition to say, “In punishing, we are… intentionally causing unjustified harm.” But if a punishment causes unjustified harm, this obviously means the punishment is causing more harm than is justified given the crime in question. Maybe McKenna could avoid that particular problem by saying “severe harm” instead of “unjustified harm.”

    In his comment responding to you, McKenna altered the definition of punishment to be less narrow, writing, “To punish is to issue a sanction or penalty of some sort with the intention of harming a person who it is judged deserves the hard treatment due to his or her culpable wrongdoing.” This second definition seems more plausible than the definition in the original article. It does not entail that punishment always deprives someone of something to which they have a right. However, it rules out sanctions that are not intended to harm, but are instead intended to change behavior for the better. It treats punishment as all about retribution and causing suffering, and this too rules out many cases we might want to think of as punishment.

  17. David Sobel says:

    Good, yes I find it plausible to say that the parent could punish a child by withdrawing permission to use the family car or withholding an allowance–both of which I am imagining the child does not have a legal or moral right to. I suspect McKenna had his eye primarily on government punishment, but I think I agree with you that if we understand the claim as a fully general one, there can be cases of punishment that do not take away something that a person is entitled to. The parent/child case could perhaps be handled by adding “or has a legitimate expectation to” where that is short of a right. The car and the allowance were things, I was assuming, the child had a legit expectation to be able to enjoy. But perhaps punishment is broader still. Perhaps the parent could say, “I was going to surprise you by buying you a car, but given your behavior I am punishing you by not doing so.” If that is punishment, as it sorta seems to me it is, then you can even be punished by being denied access to stuff one had no legit expectations to be able to access. It seems to have a lot to do with the intentions and motivations of the punisher–the very same withholding of benefits might be a punishment or not depending on such intentions and motivations. Or at least that is how things seem pre-coffee (which is never a good time for me to try to think).

    But, I hasten to add, I don’t think any of this is a problem for McKenna’s main point. Epistemic standards for a person being likely enough guilty to take action that is detrimental to the accused clearly should be significantly higher for imposing punishments, like perhaps all legal punishments, which threaten stuff that is otherwise protected by one of our rights, than it should be for not awarding someone a citizen of the year prize or not hiring someone to watch our kid.

  18. Dear Understandably Anonymous and other Pea Soup readers,

    I just received a note from a philosopher who thoughtfully directed me to the following article, which bears on my Jim Crow south example mentioned above:

    https://www.smithsonianmag.com/smart-news/supreme-court-justice-was-kkk-member-180962254/

    Can’t believe it did not dawn on me to see whether I was really in the vicinity of fiction or just plain honest history.

  19. Rhys Southan says:

    Hi David,

    I agree with everything you said in your last comment. I think Michael McKenna could have avoided problems with defining punishment if he’d just said that legal punishment was not at stake in these hearings, and so the presumption of innocence does not necessarily apply.

    If anyone’s interested, I just now put up a blog post that is also about the presumption of innocence and how it relates to the Blasey Ford/Kavenaugh hearing, but I take a different angle. I put it as my website, so you can read the post by clicking on my name.

  20. Hi Rhys,

    Thanks for your thoughtful posts and for your careful thinking about punishment. I’m sorry that I did not post earlier in reply, but I felt David was expressing much of what I would have said. Maybe it would help if I clarified, as I was not as precise as I should have been—something you’ve helped to make perspicuous. My fault, no doubt!

    First, to be clear, I never intended to propose, or for that matter even rely upon, a definition of punishment. I offered no sentence of the sort, “Something is an instance of punishment just in case…” or anything like that. All I claimed in the relevant paragraph is that in the law the pertinent principle is given such weight because it involves the authority of the state. Second, given that context, I then claimed that in punishing we are denying a person something to which, in the absence of special considerations, they are both morally and legally entitled. (Note use of the word ‘legally’.)

    Of course, you are correct in what you have remarked in this thread: There are many instances of punishment that do not seem to involve denying someone something to which they have a right. Being the father of a rambunctious seven year old, I’ll surely be issuing at least one before the weekend’s completion. And note that it cannot be that punishment, as a conceptual matter, involves denying someone something to which she has a right. The mob boss can punish his bumbling underlings by withholding some of their stolen loot without thinking that he or they have a right to any of it.

    Anyway, I think that all that really matters for my argument, and all I was relying upon, is just that in considering the relevance of this Principle of Innocence, punishment involves the intention to harm a person as a directed and perspicuous response to their having been culpable for failing to comply with an expectation or a demand. Were I pressed to offer up a definition, I suppose I’d begin there. (Of course, we all know how good philosophers are at generating counterexamples, so I’d be prepared to have to do some Chisholming if pressed.)

    Having said all of the above, and having never really entertained the proposal before, I do have to say, in opposition to what you and David Sobel propose, that one might defend the thesis that all morally justified punishment does after all involve denying a person something to which, in the absence of special considerations, they have a right. It might be argued that the teenager who is justifiably denied access to the car for the weekend does not have a right to the family car, but he does have a defeasible right not to be intentionally harmed as a consequence of someone’s intending to harm him. (Of course, this all turns on substantive assumptions about the scope of rights, and I myself am skeptical that appeal to rights can do as much work as some seem to think can be done by appeal to them.)

    I hope this was helpful. And thanks again for your comments.

  21. mi says:

    In case anyone is still following this thread, check out this article by Youngjae Lee, a professor of law at Fordham University:

    http://www.latimes.com/opinion/op-ed/la-oe-lee-kavanaugh-vote-20181005-story.html