ABSTRACT
Chapter 6, “The Epistemic Argument,” justifies the legislature’s use of consequentialist reasoning and the criminal judiciary’s use of retributivist reasoning by exploring what they can reasonably be expected to know. When it comes to punishment, legislators are in a better position to assess the consequences of general policies, while judges and juries are in a better position to determine particular defendants’ degrees of guilt. Because they are better able to make those moral decisions, given their epistemic positions, legislators are obligated more strongly by consequentialist principles and judges and juries are obligated more strongly by retributivist principles. Three-strikes laws are one example of the legislature’s failure to fulfill its appropriate role because such laws often assign inappropriate degrees of guilt. The chapter concludes with a consideration of Norval Morris’s limiting retributivism, explaining how he presupposes that judges have knowledge that they do not have, so they cannot make the consequentialist calculations that he would have them make.
