Tuesday, April 8, 2014
Michael Moore’s influence in criminal law theory is such that, when scholars speak of retributivism without modification or qualification, it is frequently Moore’s version of retributivism that they have in mind. That is, in the eyes of many, Moorean retributivism just is retributivism. This essay, prepared as a contribution to a festschrift for Moore, criticizes that common conflation. It argues that Moore attributes significantly greater normative force to the non-instrumental value or rightness of furnishing a wrongdoer with his negative desert than is necessary for a view to qualify as retributivist. We can fairly call Moore’s retributivism “robust retributivism.” A near-polar alternative may be labeled “modest retributivism.”
The essay sketches robust and modest retributivism and aims to make the latter more eligible, principally by raising doubts about Moore’s arguments for each of the components that jointly comprise the former. It is not the ambition of the essay to defend modest retributivism or to defeat robust retributivism. It is to establish that retributivism embraces a greater diversity of possible and even plausible views than Moore himself allows — including views that, in a fairly straightforward sense, are considerably more moderate than the version that Moore has defended.