Some Realism About Punishment Naturalism
George Washington University - Law School; Cultural Cognition Project
Dan M. Kahan
Yale University - Law School
David A. Hoffman
Temple University - James E. Beasley School of Law; Cultural Cognition Project at Yale Law School; University of Pennsylvania Law School
September 15, 2009
University of Chicago Law Review, Vol. 77, 2010
CELS 2009 4th Annual Conference on Empirical Legal Studies Paper
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.
Number of Pages in PDF File: 80
Date posted: August 7, 2009 ; Last revised: April 16, 2013
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