Asees Puri
Professor Malvika Maheshwari
Introduction to Political Theory
27th April, 2015
Is the conception of Desert (in contemporary Liberal theory) asymmetrical in the contexts of Distributive and Retributive Justice, especially Criminal Law, keeping in mind the perspective of Rawls?
One can argue that the nature of Criminal Law is such that it is usually seen as a ‘state institution in charge of state punishment’ – its scope, apparatus and effects are determined by the principles of Retributive Justice set up by the society. The Criminal Law is not made up of monads calling for philosophical analysis, but of interrelated practices and principles, the analysis of which extends beyond the Criminal Law to include broader questions in Moral …show more content…
According to Scheffer, Rawls (in this section and Section 48) fleshes out three basic elements that Scheffer equates to not just Rawls-ian desert but also to that of the Liberal Theory of desert. The first of these elements is that ‘an adequate account of distributive Justice must affirm the validity of legitimate institutional expectations.’ Therefore, legitimate claim of desert becomes nothing more than that of institutional entitlement. The second element is that there is ‘no legitimate notion of desert that is prior to and independent of the principles of Justice themselves’ . Therefore, there is no legitimate form of ‘pre-justicial’ desert. However, there seems to be a different view taken on the same in the context of retributive Justice. The third element then is that a ‘just distributive system cannot coherently seek to reward moral desert, those whom the criminal Justice system legitimately punishes have normally done something that would be wrong even in the absence of a law prohibiting it’ – which is to say that even though the notion of distribution of benefits based on a pre-justicial conception of desert is not entertained in Rawls-ian theory, yet there seems to be an acceptance for distribution of burdens such as punishments (determined and defined by the Criminal Law of the State) to be distributed based on certain pre-justicial conceptions. With these basic premises in mind Scheffer then moves on to prove …show more content…
However, before we come to a conclusion let us first analyse the debate presented by Donoso in his paper to fully understand what these terms encompass.
Section: 3 Donoso’s debate of individualistic approach of retributive Justice versus holism of distributive
Professor Malvika Maheshwari
Introduction to Political Theory
27th April, 2015
Is the conception of Desert (in contemporary Liberal theory) asymmetrical in the contexts of Distributive and Retributive Justice, especially Criminal Law, keeping in mind the perspective of Rawls?
One can argue that the nature of Criminal Law is such that it is usually seen as a ‘state institution in charge of state punishment’ – its scope, apparatus and effects are determined by the principles of Retributive Justice set up by the society. The Criminal Law is not made up of monads calling for philosophical analysis, but of interrelated practices and principles, the analysis of which extends beyond the Criminal Law to include broader questions in Moral …show more content…
According to Scheffer, Rawls (in this section and Section 48) fleshes out three basic elements that Scheffer equates to not just Rawls-ian desert but also to that of the Liberal Theory of desert. The first of these elements is that ‘an adequate account of distributive Justice must affirm the validity of legitimate institutional expectations.’ Therefore, legitimate claim of desert becomes nothing more than that of institutional entitlement. The second element is that there is ‘no legitimate notion of desert that is prior to and independent of the principles of Justice themselves’ . Therefore, there is no legitimate form of ‘pre-justicial’ desert. However, there seems to be a different view taken on the same in the context of retributive Justice. The third element then is that a ‘just distributive system cannot coherently seek to reward moral desert, those whom the criminal Justice system legitimately punishes have normally done something that would be wrong even in the absence of a law prohibiting it’ – which is to say that even though the notion of distribution of benefits based on a pre-justicial conception of desert is not entertained in Rawls-ian theory, yet there seems to be an acceptance for distribution of burdens such as punishments (determined and defined by the Criminal Law of the State) to be distributed based on certain pre-justicial conceptions. With these basic premises in mind Scheffer then moves on to prove …show more content…
However, before we come to a conclusion let us first analyse the debate presented by Donoso in his paper to fully understand what these terms encompass.
Section: 3 Donoso’s debate of individualistic approach of retributive Justice versus holism of distributive