Arbitrariness Framework

The value criterion is...minimizing arbitrary distinctions.

Here are some of the best justifications for an arbitrariness framework.

Morality serves to guide action so it must prevent arbitrariness that contradicts rationally adopted rules and undermine any moral code, making it a prerequisite to any coherent ethical framework. Thus, the standard is minimizing arbitrary distinctions, defined as distinctions created on no morally relevant basis.

Prefer the standard for 2 additional reasons:

First, arbitrariness erodes the strength of moral law and morality’s ability to guide our actions. Robinson:

Robinson, Paul H. (Professor of Law, Northwestern University School of Law) and John M. Darley (Dorman T. Warren Professor of Psychology, Princeton University). “The Utility of Desert.”  Northwestern  University Law Review, Vol. 91, No. 2. 1997.

Our central point is this: The criminal law’s power in nurturing and communicating societal norms and its power to have people defer to it in unanalyzed cases is directly proportional to have people defer to it in unanalyzed cases is directly proportional to criminal law’s moral credibility.  If criminalization or conviction (or decriminalization or refusal to convict) is to have an effect in the norm-nurturing process, it will be because the criminal law has a reputation for criminalizing and punishing only that which deserves moral condemnation, and for decriminalizing and not punishing that, which does not.  If, instead, the criminal law’s reputation is one simply of a collection of rules, which do not necessarily reflect the community’s perceptions of moral blameworthiness, then there would be little reason to expect the criminal law to be relevant to the societal debate over what is and is not condemnable and little reason to defer to it as a moral authority.  What then are the requirements for a criminal law system to gain this credibility? How can this credibility be lost?  Enhancing the criminal law’s moral credibility requires, more than anything, that the criminal law make clear to the public that its overriding concern is doing justice.  Therefore, the most important reforms for establishing the criminal law’s moral credibility may be those that concern the rules by which criminal liability and punishment are distributed.  The criminal law must earn a reputation for (1) punishing those who deserve it under rules perceived as just, (2) protecting from punishment those who do not deserve it, and (3) where punishment is deserved, imposing the amount of punishment deserved, no more, no less.  Thus, for example, the criminal law ought to maintain a viable insanity defense that excuses those who are perceived as not responsible for their offense, ought to avoid the use of strict liability (imposing liability in the absence of a culpable state of mind), and ought to limit the use of non-exculpatory defenses.  In other words, it ought to adopt rules that distribute liability and punishment according to desert, even if a non-desert distribution appears in the short-run to offer the possibility of reducing crime.  The point is that every deviation from a desert distribution can incrementally undercut the criminal law’s moral credibility, which in turn can undercut its ability to help in the creation and internalization of norms and its power to gain compliance by its moral authority.  Thus, contrary to the apparent assumptions of past utilitarian debates, such deviations from desert are not cost free, and their cost must be included in the calculation when determining which distribution of liability will most effectively reduce crime.

Thus, the standard is a prerequisite to any framework because it preserves the normative force of moral law.

Second, people are moral equals unless a morally relevant distinction exists because no characteristics exist to differentiate them. Arbitrary violations deny human equality because they privilege one group over another for no reason. That also means absent a morally relevant distinction, you presume aff towards equality. Prefer this substantive presumption argument over other arguments because those aren’t relevant unless there isn’t a substantive reason to prefer one side.