Empirical Desert and the Moral Economy of Punishment

19 Pages Posted: 4 Feb 2011 Last revised: 16 Jun 2012

See all articles by Zachary R. Calo

Zachary R. Calo

Valparaiso University Law School

Date Written: February 2, 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.

Keywords: Empirical Desert, Punishment, Paul Robinson, Utilitarianism, Retributivism, Deontology

JEL Classification: K14

Suggested Citation

Calo, Zachary, Empirical Desert and the Moral Economy of Punishment (February 2, 2011). 42 Arizona State Law Journal 1123 (2011). Available at SSRN: https://ssrn.com/abstract=1753923

Zachary Calo (Contact Author)

Valparaiso University Law School ( email )

656 S. Greenwich St.
Valparaiso, IN 46383-6493
United States
219.465.7970 (Phone)

HOME PAGE: http://www.valpo.edu/law/faculty/zcalo

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