Some Hypotheses About Empirical Desert

Abstract

Paul Robinson has written a series of articles advocating the view that empirical desert should govern development of criminal law doctrine. The central contention of empirical desert is that adherence to societal views of “justice” – defined in terms of moral blameworthiness – will not only satisfy retributive urges, but will also often be as efficacious at controlling crime as a system that revolves around other utilitarian purposes of punishment. Constructing criminal laws that implement empirical desert has the latter effect, Robinson argues, because it enhances the moral credibility of the law, thus minimizing citizens’ desire to engage in vigilantism and other forms of non-compliance and increasing their willingness to accept controversial government decisions to criminalize or de-criminalize. In keeping with the utilitarian spirit of Robinson’s agenda, the main goal of this paper is to propose hypotheses (ten in all) that test possible vulnerabilities of his argument. Robinson’s work on empirical desert is provocative, but requires further empirical support.

Keywords: empirical desert, retributive, utilitarian, vigilantism, procedural justice