2018 University of Illinois Law Review Online
7 Pages Posted: 29 May 2018
Date Written: April 30, 2018
This paper responds to Adam Kolber's Punishment and Moral Risk. An ambitious reading of Kolber's thesis is that restributivist theories of punishment are untenable in light of normative uncertainty. In support of this thesis, Kolber offers a novel argument that resembles a "teaser" bet.
I first describe Kolber's teaser strategy, then argue that it does not provide a compelling internal critique of retributivism. First, Kolber's argument suffers from a methodological problem (first identified by Larry Solum): the specific propositions that Kolber tasks the retributivist with resolving are not independent of each other. Therefore, the teaser gambit is inapt.
Second, Kolber's teaser strategy ignores what seems to be the most compelling line of response from retributivists, one based on what (after Rawls) I call the "normative division of labor." Therefore, Kolber's teaser gambit fails to provide a compelling internal critique of retributivism.
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