Blame by Proxy: Political Retributivism & Its Problems, A Response to Dan Markel

Virginia Journal of Criminal Law, Vol. 1, 2012

Virginia Public Law and Legal Theory Research Paper No. 2011-42

34 Pages Posted: 19 Oct 2011 Last revised: 21 Feb 2012

Josh Bowers

University of Virginia School of Law

Abstract

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.

Keywords: Retribution, Retributivism, Particularism, Criminal Theory, Legal Theory, Equity, Equitable Discretion, Political Obligation, Political Retributivism, Dan Markel

JEL Classification: K14, K40, K41, K42

Suggested Citation

Bowers, Josh, Blame by Proxy: Political Retributivism & Its Problems, A Response to Dan Markel. Virginia Journal of Criminal Law, Vol. 1, 2012; Virginia Public Law and Legal Theory Research Paper No. 2011-42. Available at SSRN: https://ssrn.com/abstract=1945743

Josh Bowers (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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