Blame by Proxy: Political Retributivism & Its Problems, A Response to Dan Markel
University of Virginia School of Law
Virginia Journal of Criminal Law, Vol. 1, 2012
Virginia Public Law and Legal Theory Research Paper No. 2011-42
In his article, Retributive Justice and the Demands of Democratic Citizenship, Dan Markel explores the overlaps between democratic and retributive values and concludes that even amoral conduct becomes blameworthy once it is proscribed by a democracy under sufficient liberal conditions. In this response, I explore why, to my thinking, Markel’s theory of political retributivism fails to be either a genuine retributive theory or a theory of political obligation. First, Markel’s theory is not a genuine retributive theory because retribution entails a particularistic evaluation, whereas Markel’s theory is aggregative and formalistic and thereby reduces contextualized moral judgment to formula, test, and ex ante legal designation. In this way, Markel’s theory has the virtue of being clean but not correct. In fact, the full measure of moral blameworthiness is to be found neither in code nor casebook - court nor classroom. It is the product of neither executive action nor judicial pronouncement. To the contrary, it arises out of the exercise of human intuition and practical reason, applied concretely to the particular offender and his act. Second, Markel’s theory is not a genuine theory of political obligation because Markel is unwilling to tolerate all that the liberal state may command. Specifically, Markel is uncomfortable calling immoral certain just-liberal offenses. Accordingly, he draws arbitrary and ad hoc substantive lines. Ultimately then, under Markel’s theory, the liberal state enjoys broad deference to criminalize conduct and morally obligate its citizenry but, critically, only in those circumstances where the liberal state and Dan Markel happen to see eye-to-eye.
Number of Pages in PDF File: 34
Keywords: Retribution, Retributivism, Particularism, Criminal Theory, Legal Theory, Equity, Equitable Discretion, Political Obligation, Political Retributivism, Dan Markel
JEL Classification: K14, K40, K41, K42
Date posted: October 19, 2011 ; Last revised: February 21, 2012
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