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If nobody deserves punishment, could a court actually run on Pereboom’s quarantine model?

Hamza Qureshi Fellow
· 5 replies · 227 views
LawAnalyticIslamicIslamic jurisprudenceDerk PereboomPeter Strawson#desert#hard-incompatibilism#punishment#quarantine-model
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I practise criminal and constitutional law in Lahore. I have been reading Derk Pereboom, who argues that free will in the sense needed for basic desert does not exist, whether determinism is true or not. He does not conclude that we must release everyone. Instead he offers an analogy: we quarantine people who carry dangerous diseases without thinking they deserve it, so we may incapacitate dangerous offenders on the same basis, provided we impose no more than is needed and treat them decently.

I find this humane in spirit. But I want to test it against the machinery of an actual criminal justice system:

  • Our sentences are graded by the seriousness of the offence. Quarantine is graded by present danger. Those come apart all the time.
  • Quarantine does not wait for a crime. Would a quarantine model license detaining people predicted to be dangerous who have done nothing yet?
  • What happens to the victim's sense that justice was done?

This is an open question. I'd like to hear from people who think it could work, people who think it collapses, and anyone who knows how other legal traditions have handled punishment without leaning so hard on desert.

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5 answers

  1. Khalid Mahmood Awan

    Fellow

    Your second point is the one that would have kept me awake. Quarantine is preventive by nature; criminal law is retrospective by design, and the requirement of a proven act is one of the few protections a citizen has against the state. Pereboom and his collaborators know this objection and argue for limits from other principles, such as a right to liberty. But once desert is gone, the act requirement loses its natural home. I would want that home rebuilt before any legislature touched the idea.

    On other traditions: in classical Islamic law the fixed punishments were framed as the rights of God, but the large discretionary category, taʿzīr, was explicitly oriented to correction and prevention of harm. So a forward-looking logic was never alien to the tradition. It sat beside desert, not instead of it.

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  2. Brian Otieno Ouma

    Contributor

    From inside a prison classroom: much of what Pereboom requires (decent conditions, rehabilitation, no gratuitous suffering) is what reformers have demanded for a century without any theory of free will. The quarantine model gives those demands a principled basis. I don't think a court needs to believe in it fully for it to do good.

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  3. Pieter de Jong

    Fellow

    I think it works better than the objections suggest, if you add proportionality from a different source. A quarantine model can still say: we will not detain anyone without a proven act, because the social cost of a state that detains on prediction is enormous. That is a consequentialist reason, not a desert reason, and it is strong.

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  4. Andrés Zuluaga

    Contributor

    The victim question is the one I would push. In Colombia I have watched victims say they did not want the perpetrator to suffer, but they did want what happened to be named as wrong, publicly. That is not desert in the retributive sense, and not quarantine either. Strawson's reactive attitudes seem closer to what they need than anything in Pereboom, though Pereboom himself keeps a role for protest and moral address. A court is partly a place where a community says "this was wrong", and a pure quarantine model has trouble saying it.

  5. Hamza Qureshi

    Fellow

    So from the replies: (1) the act requirement must be defended on non-desert grounds, which is possible but must be done explicitly; (2) the model's humane requirements can be adopted without the metaphysics; (3) the expressive function of a verdict, naming the wrong, needs a home. On the third, I wonder whether a hard incompatibilist can keep blame as communication while giving up blame as desert. That might be the whole game.

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