Some Realism About Punishment Naturalism

79 Pages Posted: 7 Aug 2009 Last revised: 31 Jan 2023

See all articles by Donald Braman

Donald Braman

George Washington University - Law School; Justice Innovation Lab; DC Justice Lab

Dan M. Kahan

Yale Law School

David A. Hoffman

University of Pennsylvania Carey Law School

Date Written: September 15, 2009

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.

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: https://ssrn.com/abstract=1443552

Donald Braman (Contact Author)

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
2025034132 (Phone)

Justice Innovation Lab ( email )

DC Justice Lab ( email )

1200 U St NW
Washington, DC 20009
20009 (Fax)

HOME PAGE: http://dcjusticelab.org

Dan M. Kahan

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

HOME PAGE: http://www.culturalcognition.net/kahan

David A. Hoffman

University of Pennsylvania Carey Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

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