GROUNDING PROCEDURAL RIGHTS

Abstract

AbstractIt is commonly held that we wrong someone if we punish them without first determining whether they are guilty through the process of a sufficiently fair and reliable procedure. This wrong is best explained by pre-institutional moral procedural rights. Recently, Christopher Heath Wellman has argued for the skeptical conclusion that there are no such rights, challenging a widely held orthodoxy. I propose two novel grounds for pre-institutional moral procedural rights and so answer Wellman's skepticism. First, we have rights not to be subject to punitive systems that do not include specific sorts of reliable procedures because otherwise we are subject to unreasonable risks of undeserved punishment. Second, not only do we have rights that others not harm us or unreasonably risk harming us, we have rights that they control for avoiding wrongfully harming us across relevant close possible worlds.