CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, June 14, 2019

Maggen on A Valuative Theory of Punishment

Daniel Maggen has posted Conventions and Convictions: A Valuative Theory of Punishment (Utah Law Review, Forthcoming) on SSRN. Here is the abstract:

The one thing that most scholars of criminal law agree upon is that we are in desperate need of a comprehensive theory of punishment. The theory that comes closest to meeting this demand is the expressive account of punishment, yet it is often criticized for its inability to explain how the expression of communal values justifies punishment and why the condemnation of wrongdoing necessarily requires punishment. The Article answers these criticisms by arguing against the need to necessarily connect punishment to wrongdoing and by developing expressivism into a novel theory of punishment, based on a valuative understanding of the individual.

Offering an original interpretation of Immanuel Kant’s Critique of Judgment, the Article argues that criminal law should be understood as a device in the service of the interest that individuals have in affirming their personhood, an interest that is promoted by the creation and communication of values. The Article posits that criminal law serves this purpose by safeguarding the conditions that facilitate valuative communication. It does so by (1) cataloging the values shared the community; (2) outlining the ways in which they are commonly interpreted; and (3) penalty responding to forms of behavior that hinder communication. 

The Article concludes by examining the prohibition of abortion in light of the values it purports to protect, distinguishing between illegitimate prohibitions that are informed by protection of values as such and legitimate prohibitions that aim to support valuation. The Article contends that even if under certain circumstances an affront to protected values could justify the prohibition of abortion, the reasons for prohibition will commonly fail to justify the penal condemnation of those who perform or undergo it.

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