Michelle Madden Dempsey (Villanova University School of Law) has posted Blame and Punishment: The Difference Duty Makes on SSRN. Here is the abstract:
When it comes to blaming and punishing, what difference does it make if the blame and punishment are in response to a breach of duty rather than simply a failure to conform to an ordinary reason? Put in John Gardner’s terms, what difference does it make if the action was ‘a wrong’, ‘wrongful’, ‘wrongdoing’ – or if it was simply ‘doing the wrong thing’ (a.k.a. ‘a mistake’)? According to Gardner, one’s action can be blameworthy even if one commits only a mistake, not a wrong. However, when it comes to punishment, things are different. Or so says Gardner. ‘The only actions that deserve to be punished,’ he claims, ‘are both wrongful [breaches of duty] and blameworthy’. In this chapter, I start by agreeing with Gardner that breach of duty is not necessary when it comes to blameworthiness. I then argue, contra Gardner, that breach of duty is also not necessary when it comes to punishment-worthiness (whether punishment is deserved). Finally, I argue that breach of duty does make a difference when it comes to standing to blame and punish.
Highly recommended!
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