Abstract

http://ssrn.com/abstract=1587886
 
 

Citations (4)



 


 



Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Justice


Dan Markel


Florida State University College of Law (deceased)

Chad Flanders


Saint Louis University - School of Law

October 14, 2010

California Law Review, Vol. 98, pp. 907-988, 2010
FSU College of Law, Public Law Research Paper No. 439
Saint Louis U. Legal Studies Research Paper No. 2010-07

Abstract:     
In recent work, various scholars have challenged retributive justice theorists to pay more attention to the subjective experience of punishment, specifically how punishment affects the experiences and well-being of offenders. The claim developed by these “subjectivists” is that because people’s experiences with pain and suffering differ, both diachronically and inter-subjectively, their punishments will have to be tailored to individual circumstances as well.

Our response is that this set of claims, once scrutinized, is either true, but of limited significance, or nontrivial, but unsound. We don’t doubt the possibility that different people will react differently to the same infliction of punishment. It seems foolish to deny that they will (although such claims can be exaggerated). What we deny, in the main, is that this variance in the experience of punishment is critically relevant to the shape and justification of legal institutions meting out retributive punishment within a liberal democracy.

FYI: Professors Bronsteen, Buccafusco & Masur respond to the attached article in "Retribution and the Experience of Punishment," available at http://ssrn.com/abstract=1692921

Professors Markel, Flanders & David Gray have a reply to BBM's response in "Beyond Experience: Getting Retributive Justice Right," available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1739946.

Number of Pages in PDF File: 84

Keywords: retributive justice, punishment theory, subjective experience, hedonic adaptation

Accepted Paper Series


Download This Paper

Date posted: April 14, 2010 ; Last revised: July 14, 2011

Suggested Citation

Markel, Dan and Flanders, Chad, Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Justice (October 14, 2010). California Law Review, Vol. 98, pp. 907-988, 2010; FSU College of Law, Public Law Research Paper No. 439; Saint Louis U. Legal Studies Research Paper No. 2010-07. Available at SSRN: http://ssrn.com/abstract=1587886

Contact Information

Dan Markel (Contact Author)
Florida State University College of Law (deceased)
Chad Flanders
Saint Louis University - School of Law ( email )
100 N. Tucker Blvd.
St. Louis, MO 63108
United States

Feedback to SSRN


Paper statistics
Abstract Views: 3,142
Downloads: 374
Download Rank: 44,006
Citations:  4

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo5 in 0.391 seconds