George Schedler

Abstract I argue for the following, which I dub the ?fallibility syllogism?: (1) All systems of criminal punishment that inflict suffering on the innocent are unjust from a desert-based, retributivist point of view. (2) All past or present human systems of criminal punishment inflict suffering on the innocent. (3) Therefore, all such human systems of criminal punishment are unjust from a desert-based, retributivist point of view. My argument for the first premise is organized in the following way. I define what a human system of punishment is. I offer a distinction between retributive and utilitarian approaches to punishment. I distinguish between weak retributivism embodied in the second premise and strong retributivism, which I argue is the basis for the weak version. I argue that on retributivist grounds, each case of punishment is just when it matches the seriousness of the wrongdoing of the offender and that systems of punishment are just from a retributivist point of view when there are no exceptions to this match-up. In making my case, I will use Kant's retributivism as the version of my choice, so I will spend some time showing that recent reinterpretations of Kant (arguing that he was not a thoroughgoing retributivist), even if they are correct, are consistent with my view. Ultimately, however, I argue that the better view is that Kant was a thoroughgoing retributivist.

To protect what it deems fundamental rights, the Supreme Court strictly scrutinizes legislation that impinges on these rights. The Court views such legislation as a means to some end the legislation seeks to accomplish. The Court requires that the statute be neither overinclusive nor underinclusive; the legislation may not affect more people than necessary to achieve its end, nor is the statute permitted to leave some people out in achieving its end.I argue that when legislation imposes burdens, its underinclusiveness is irrelevant, and that when it dispenses rewards its overinclusiveness is irrelevant, because those affected by the statute areex hypothesi deserving. One commits thetu quoque fallacy when one tries to infer that those affected by the law are undeserving from the fact that some deserving individuals were not affected by the statute.

In this volume of Leys Lectures, the third collection of Wayne Leys Memorial Lectures, six distinguished essayists demonstrate the relevance of ethics to contemporary concerns by constructively exploring major ethical issues deeply embedded in our society. The essays, written by noted scholars Tom Regan, Carol C. Gould, James Rachels, James P. Sterba, Louis P. Pojman, and David L. Norton, focus on issues of feminism, the exploitation of animals, economic injustice, racial prejudice, naive moral relativism, and the failure of public education. _Tom Regan_ and _Louis P. Pojman_ both address the issue of animal rights. Regan directs his attention to an ethic-of-care feminism, which contends that the ideology of male superiority—not only to women but to all creatures—must be destroyed. By means of a "consistency argument," he extends ethic-of-care feminism to the treatment of animals, insisting that we must not permit to be done to animals "in the name of science" what we would not allow to be done to human beings. Pojman, on the other hand, addresses the question of animal rights through a critical analysis of seven theories of the moral status of animals, arguing that while animals have no natural "rights" since they are unable to enter into contracts, they do deserve to be treated kindly. In his view, much animal research could be abandoned without significant loss. What rethinking of democracy in terms of freedom and equality is required by economic justice? _Carol C. Gould_ offers an answer to this question by arguing that economic justice requires that workers control the production process as well as the distribution process. Such justice would provide the basis of "positive freedom" as self-development without ignoring the importance of the absence of constraints. Taking racial prejudice as his paradigm, _James Rachels_ explores the deeper meaning of prejudice and what equality of treatment involves. Noting the subtlety of prejudicial reasoning, he examines how stereotypes, unconscious bias, and the human tendency toward rationalization make it difficult even for people of good will to prevent prejudice from influencing their actions. _James P. Sterba_ invites the reader to consider a different and more general problem of how to persuade people to act for moral reasons. To accomplish this aim he shows morality to be a requirement of rationality and "the welfare liberal ideal" (the right to welfare and the right to equal opportunity) to be a fusion of the practical ends of five ideals—liberty, fairness, common good, androgyny, and equality. For _David L. Norton_, one of our most pressing problems is the failure of our educational system. The system fails to enable students to make wise "life-shaping" choices involving vocation, marriage, children, and friendship. In order to make good choices, human beings must live and work in an environment that provides experiences that authenticate "personal truths" indispensable to worthy living. These personal truths include direct acquaintance with vocational alternatives and participation in actual service to others. Collectively, these essays bring into sharp focus the urgent moral issues confronting our society and the need for ongoing discussion and examination of these issues in order to gain deeper understanding of and possible solutions to the problems they present.

In the first half of this century, Anglo-American moral philosophers concerned themselves with the vexing question of whether legal officials could deliberately “punish” the innocent and whether a utilitarian justification for such a practice is possible. Interest in this topic waned after Rawls drew a crucial distinction in his article, “Two Concepts of Rules,” between two kinds of systems for dealing with wrongdoing. One was legal punishment, as we understand it; the other was the practice of ‘telishment’, in which the officials, as Rawls said, “have authority to arrange a trial for the condemnation of an innocent man whenever they are of the opinion that doing so would be in the best interests of society.” A utilitarian justification for such an arrangement is most unlikely, Rawls claimed, because of the very great risks that such an institution might misfire.

I offer a way of classifying Confederate monuments and two ways of extracting meaning from these monuments. A few of them are racist on one of the two interpretations. Most of them, in the final analysis, implicitly acknowledge racial equality by extolling in African Americans the same virtues to which southern whites themselves aspired. Toppling those which seem racist entails serious difficulties, constitutional and philosophical. Additional interpretive material about the controversial ones is the more appropriate response.