Academic

Hanna on Retributivist Thought Experiments

By Lawrence Solum

Nathan Hanna (Syracuse University) has posted Rethinking Retributivist Thought Experiments: An Abolitionist Critique on SSRN.  Here is the abstract:

Retributivist arguments often employ thought experiments meant to elicit various responses from us - materials with which, it is hoped, compelling arguments for punishment can be constructed. Many think that these experiments help make a prima facie case for punishment, that they highlight reasons that speak unequivocally, if not decisively, in punishment's favor. Retributivist use of these experiments has gone insufficiently challenged. I plan to turn the tables on the retributivist. These experiments do not highlight reasons for punishment. In fact, examination of these experiments and arguments that have employed them can help emphasize the strength of Abolitionism, the view that punishment is unjustified. I will show how these experiments have been and can be mishandled and what insights can be taken from them once we identify the errors that have plagued their use. Retributivist arguments employing these experiments suffer from a variety of problems. They rely on dubious and ambiguous claims about the nature and content of the responses elicited by the experiments, misconstrue the moral import of some of the responses, and insufficiently question mistaken assumptions that influence the responses.

And a bit more from the paper:

Michael Moore uses more disturbing examples: brutal murders and rapes and Dostoevsky?s example of the Russian nobleman who set his dogs upon a young boy to be torn apart before his mother?s eyes (Moore 1987: 184, Moore 1993: 25). Moore asks us to use such cases to construct thought experiments. Exclude the possibility of good consequences to follow from the punishment of the perpetrators. ?My hypothesis,? Moore says, ?is that most of us still feel some inclination, no matter how tentative, to punish? (Moore 1987: 185).

Many people, Moore observes, are dubious about their intuitions and judgments about punishment. They worry that these responses are based on unreliable and dangerous emotions generated by the brutal facts of cases like Moore?s. But emotions like these, Moore observes, play crucial roles in our moral lives and rarely arouse suspicion in other contexts. Our emotional responses to things like the punishment of innocents, to racial discrimination, and even to our own wrongdoing often assist us in reaching moral judgments. My anger and disgust may help me conclude that the punishment of some innocent is wrong or that some instance of racial discrimination is unjust. My guilt may lead me to conclude that I deserve to be punished for my wrongdoing. Moore claims that ?our emotions are our main heuristic guide to discovering moral truths? (Moore 1993: 43; cf. Moore 1987: 201). The thought experiments yield a collection of responses that can, according to him, only be accounted for by the truth of Retributivism.

And one more excerpt:

Emotions, desires and inclinations need not have propositional content.5 Judgments and intuitions ? let alone the specific judgments and intuitions that retributivists need ? cannot be so easily teased from them, certainly nowhere near as easily as is being assumed. A desire for or emotional inclination towards someone?s suffering does not commit one to the claim that it would be good for her to suffer, let alone for her to be punished. Those are claims that require further argument.

This is a good read, and I recommend it highly, despite my reservations about the conclusion and some of the moves.

Full post as published by Legal Theory Blog on January 17, 2008 (boomark / email).