84 Pages Posted: 14 Apr 2010 Last revised: 14 Jul 2011
Date Written: October 14, 2010
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: 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