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Some Realism About Punishment Naturalism


Donald Braman


George Washington University - Law School; Cultural Cognition Project

Dan M. Kahan


Yale University - Law School; Harvard University - Edmond J. Safra Center for Ethics

David A. Hoffman


Temple University - James E. Beasley School of Law; Cultural Cognition Project at Yale Law School

September 15, 2009

University of Chicago Law Review, Vol. 77, 2010
CELS 2009 4th Annual Conference on Empirical Legal Studies Paper

Abstract:     
In this paper we critique the increasingly prominent claims of punishment naturalism – the notion that highly nuanced intuitions about most forms of crime and punishment are broadly shared, and that this agreement is best explained by a particular form of evolutionary psychology. While the core claims of punishment naturalism are deeply attractive and intuitive, they are contradicted by a broad array of studies and depend on a number of logical missteps. The most obvious shortcoming of punishment naturalism is that it ignores empirical research demonstrating deep disagreements over what constitutes a wrongful act and just how wrongful it should be deemed to be. But an equally serious shortcoming of punishment naturalism is that it fails to provide a credible account of the social and cognitive mechanisms by which individuals evaluate both crime and punishment, opting instead for explanations that are either specific and demonstrably wrong or so vague as to be untestable.

By way of contrast we describe an alternative approach, punishment realism, that develops the core insights of legal realism via psychology and anthropology. Punishment realism, we argue, offers a more complete account of agreement and disagreement over the criminal law and provides a more detailed and credible account of the social and cognitive mechanisms that move people to either agree or disagree with one another on whether and how much praise or punishment a given act deserves. The differences between these two empirical accounts also entail contrasting implications for how those interested in maximizing social welfare and public satisfaction with the law should approach questions of crime and punishment.

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Date posted: August 7, 2009 ; Last revised: April 16, 2013

Suggested Citation

Braman, Donald and Kahan, Dan M. and Hoffman, David A., Some Realism About Punishment Naturalism (September 15, 2009). University of Chicago Law Review, Vol. 77, 2010; CELS 2009 4th Annual Conference on Empirical Legal Studies Paper. Available at SSRN: http://ssrn.com/abstract=1443552

Contact Information

Donald Braman (Contact Author)
George Washington University - Law School ( email )
2000 H Street, N.W.
Washington, DC 20052
United States
Cultural Cognition Project ( email )
2000 H St NW
2000 H Street
Washington, DC 20052 20052
United States
202-491-8843 (Phone)
202 491-8843 (Fax)
HOME PAGE: http://www.culturalcognition.net/braman
Dan M. Kahan
Yale University - Law School ( email )
P.O. Box 208215
New Haven, CT 06520-8215
United States
HOME PAGE: http://www.culturalcognition.net/kahan
Harvard University - Edmond J. Safra Center for Ethics ( email )
124 Mount Auburn Street
Suite 520N
Cambridge, MA 02138
United States

David A. Hoffman
Temple University - James E. Beasley School of Law ( email )
1719 N. Broad Street
Philadelphia, PA 19122
United States
215-204-0612 (Phone)
Cultural Cognition Project at Yale Law School
127 Wall St
New Haven, CT 06520
United States
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