George Schedler

Although over twenty years have passed since the Hart-Devlin exchange, the controversy over society's right to punish homosexuals remains alive, as is shown by recent concern over the spread of AIDS and the recent announcement of the Supreme Court that “majority sentiments about the morality of homosexuality” constitute an adequate justification for sodomy statutes under the due process clause of the fourteenth amendment. Lord Devlin's moral justification for punishing homosexual conduct seems to follow a similar line of reasoning. The one argument to which his critics have paid the most attention begins with the assertion that society consists of a seamless web of ideas and values, the content of which is determined by whether the ordinary, reasonable person is disgusted by a particular type of conduct. Among the types of conduct that disgust the ordinary person, he continues, is homosexual conduct. Therefore, Devlin concludes, society may punish homosexual conduct, even if it is consensual

CONCLUSIONSocial justice is most clearly satisfied by a system of Divine rewards and punishments: an omnipotent, omniscient, perfectly just Being could determine in each case how much effort was made and effect the appropriate distribution of rewards and punishments. A correct understanding of social justice naturally leads us to suppose that there is an afterlife, a God, a free choice — though it is logically possible at least that social justice could be satisfied in some future human society.There will still be those who have their doubts about the correctness of any view according to which justice cannot be attained by fallible creatures who have an incomplete knowledge of one another's behaviour. But, surely, these doubts are not sufficient to discredit my view. There is no a priori reason for rejecting such a view. There is nothing about our use of the term ‘justice’ and its cognates which implies that such a view is mistaken. To the contrary, there are widely held religious views, Christian as well as non‐Christian, which take this view quite seriously. If there is no a priori reason for rejecting this view, then there must be some independent reason for rejecting it. In other words, we need some independent reasons for believing that social justice can be attained by fallible creatures with limited knowledge. The mere fact that we might feel uncomfortable with my theory is not reason enough to reject it.Finally, those who do experience this discomfort might ask themselves whether such discomfort stems from their moral experience or whether they are simply intent on finding justice in imperfect human institutions

We argue in this essay that any society that organizes itself to punish criminals should in justice consider itself strictly liable to punish only those who are guilty in fact of the crimes for which they are punished. We argue that justice, not utility, is the basis of the obligation society has not to punish the innocent and that any society that is just would bind itself by statute to compensate the innocents it punishes by mistake. We hope to have made it evident that when the justice of criminal punishment is the issue justice and strict liability are not incompatible; rather, we hope to have shown that one does not understand the nature of justice unless one recognizes that society is strictly liable and therefore owes compensation when, through no fault of its own, it punishes the innocent

Contemporary white Americans cannot meaningfully ask forgiveness from present-day African Americans for slavery, because such a group apology does not have the mental state needed to communicate regret and intend that listeners forgive the group. Even if the requisite mental state were present, contemporary white Americans are not responsible for the wrong and cannot apologize for wrongs for which they are not responsible. Additionally, such a purported apology is not directed to the victims of the wrong but instead seeks forgiveness from present-day citizens who were not enslaved and could not therefore accept such an apology on behalf of the slaves.