Empirical Desert and the Moral Economy of Punishment
Zachary R. Calo
Valparaiso University Law School
February 2, 2011
42 Arizona State Law Journal 1123 (2011)
This paper considers Paul Robinson's theory of empirical desert as an argument for moving beyond the debate between utilitarian and retributivist accounts of punishment. It is argued that empirical desert, in its attempt to replace philosophy with the insights of the social and biological sciences, fails to ground the foundational act of punishment in an adequate theoretical warrant. A particular problem confronting empirical desert is that while Robinson shifts the locus of punishment from theory to the intuitions of the relevant community, he does not adequately account for the dynamic process by which communities shape and structure their internal moral life. As such, the normative nature of punishment is lost in an attempt to salvage it.
Number of Pages in PDF File: 19
Keywords: Empirical Desert, Punishment, Paul Robinson, Utilitarianism, Retributivism, Deontology
JEL Classification: K14
Date posted: February 4, 2011 ; Last revised: June 16, 2012
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