Paul Robinson on moral philosophers and desert

Paul H. Robinson (University of Pennsylvania Law School) has posted The Role of Moral Philosophers in the Competition Between Deonotological and Empirical Desert on SSRN. Here is the abstract:

Desert appears to be in ascendence as a distributive principle for criminal liability and punishment but there is confusion as to whether it is a deontological or an empirical notion of desert that is or should be promoted. Each offers a distinct advantage over the other.

Deontological desert, derived as it is from principles of right and good, transcends community and situation to give a notion of justice that can be relied upon even to reveal errors in popular notions of justice. On the other hand, empirical desert can be more easily operationalized than deontological desert because, contrary to common wisdom, there is a good deal of agreement on its meaning, but it fails to provide the transcendent foundation that deontological desert can provide. Empirical desert can only tell us what people believe is just not what actually is just.

What role do moral philosophers play in the competition between deontological and empirical desert? One might assume them on the deontological side, facing the research social psychologists who are mapping shared intuitions of justice for empirical desert, but the situation is more complex. Moral philosophy has come to rely upon intuitions of justice in both its formal and informal analytic methods, which both helps and hurts its usefulness. The moral philosophy literature today is the richest available source of intuitions of justice, which any serious research scientist ought to use as their starting point in mapping intuitions. But moral philosophers' reliance on intuitions of justice can undermine their ability to produce a deontological notion of desert that transcends the popular view and that can tell us, among other things, when shared intuitions of justice are wrong.

(Thanks to Larry Solum for the link).