Monday, August 24, 2009
I join Larry Solum in highly recommending this piece by my colleague, Adam J. Kolber, entitled How to Improve Empirical Desert (Brooklyn Law Review, Symposium: 'Is Morality Universal and Should the Law Care?', 2010), to those interested in criminal law theory. It is a rigorous examination of the idea of empirical desert that is a must-read for both proponents and opponents and a good-read for those on the fence. Here is the abstract:
According to advocates of "empirical desert," laypeople intuitively support a retributive approach to punishment, and policymakers can increase compliance with criminal justice policies by punishing in accord with lay intuitions.
I offer three criticisms of empirical desert intended ultimately to strengthen its theoretical underpinnings: First, advocates have cherry-picked certain moral intuitions, while ignoring others. They focus on the calm, unbiased intuitions of people who are generally law-abiding, even though the people whose compliance we most hope to gain -- those who are on the fence about offending -- are likely to act under biased, heat-of-the-moment circumstances. Second, advocates cannot operationalize empirical desert because they have yet to demonstrate the value of the compliance induced by empirical desert relative to the value of other consequentialist goals. Third, empirical desert arguably exploits laypeople by using their “mistaken” retributive beliefs about punishment to encourage their compliance with consequentialist goals. Such exploitation may especially trouble defenders of the “publicity principle,” which requires that a system of morality be based on principles that can be announced publicly without thereby undermining those same principles.
I do not describe precisely how empirical desert advocates should respond to these concerns, but they can make substantial headway by more carefully distinguishing the use of widely-shared moral intuitions to make predictions about people’s behavior from the use of those intuitions to justify particular policies. (This article was written for the Brooklyn Law School Symposium, “Is Morality Universal and Should the Law Care?”.)