be accidental or their consequences unintentional. In such an instance, they “proceed not from some cause in the characters and disposition of the person who perform’d them.” When an action is inconsistent with character, he continues, “‘tis impossible he can, upon its account, become the object of punishment or vengeance.” For Hume, an action (in and of itself) is an insufficient basis by which to determine someone’s due. He does, however, give actions some evidentiary authority in Book 3. “[W]hen we praise any actions,” he writes, “we regard only the motives that produc’d them and consider the actions as signs or indications of certain principles in the mind and temper. The external performance has no merit. We must look within to find the moral quality” (pt. 2, sec. I). As opposed to actions, Hume clearly affords character (variously implied by “disposition,” “certain principles in the mind and temper,” and “the moral quality” within a person) constancy. Character, he implies, consistently “motivates" actions. Actions are important in determining a person’s just deserts – whether praise or punishment – only insofar as they inform us about the underlying character of the person who performs them. Echoing Hume in State Punishment: Political Principles and Community Values, Nicola Lacey writes that “It is unfair to hold people responsible for actions which are out of character, but only fair to hold them so for actions in which their settled dispositions are centrally expressed” (68). In her thinking, past actions provide evidence of a person’s moral quality. Accordingly, repeated actions or certain patterns of behavior can be used to determine a person’s character, which Lacey suggests is constant or “settled.” It is fair to punish a person for a wrongful action only if it is consistent with her character (as determined by an analysis of past actions / behavioral patterns). Both Hume’s and Lacey’s insistence that actions serve as evidence for character are motivated by a fundamental concern with fairness (a term Lacey uses). In Rethinking Criminal Law, George Fletcher reframes this matter, claiming that the fairness, or “justness” of a punishment “is measured by the desert of the offender” (800). In jurisprudence, “desert” refers to the degree to which an offender deserves the sentence handed down to them. Fletcher ties desert directly to character: “[T]he desert of the offender is gauged by his character – i.e., the kind of person he is.” Accordingly, he concludes with an absolute insistence that “a judgement about character is essential to the just distribution of punishment.” Arguably, the appeal of character as a determinant of just punishment lies in its simplicity, especially given the dualism that is pervasive in moral judgement. Fletcher’s definition of character – “the kind of person he is” – and Lacey’s idea of “settled disposition” lend themselves to reductive qualification. Are they a “good” person or a “bad” person? Such distinctions allow character theory to claim it can satisfy the intuitive position that it is unfair to punish a good person and a bad person similarly for the same wrongful ac31
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