To illustrate the problem, suppose one holds, with Anscombe, that it is always
wrong to knowingly punish the innocent, regardless of the consequences. If so,
what level of certainty of guilt ought we to require before the defendant in a
criminal trial may be convicted and punished? If we require absolute certainty,
then we have the implausible result that accused criminals should never be
punished. If we require something less than certainty, such that criminals may
periodically be punished, then it is virtually certain that the system will also punish
some innocent people. If it is always wrong to knowingly punish an innocent
person, then it would seem also to be wrong to institute a system that one knows
will punish a number of innocent people. Anscombe’s absolutist view of criminal
justice thus threatens to generate a prohibition on any meaningful criminal justice
2system. Other absolutist proscriptions are likely to lead to similar problems.
