Download this Paper Open PDF in Browser

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

84 Pages Posted: 14 Apr 2010 Last revised: 14 Jul 2011

Dan Markel

Florida State University College of Law (Deceased)

Chad Flanders

Saint Louis University - School of Law

Date Written: October 14, 2010

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.

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

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: https://ssrn.com/abstract=1587886

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 63101
United States

Paper statistics

Downloads
425
Rank
55,774
Abstract Views
3,940