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Legal Commentary

: Prawfs

Does Retribution = Orgasm? More on the search for funny footnotes

By Dan Markel, Ethan Leib, Rick Garnett, Matt Bodie, Paul Horwitz , Steve Vladeck, and Orly Lobel

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In some future post to be named later, I hope to weigh in on some of the interesting posts our guest Mike Cahill wrote about retribution earlier this month. In the meantime, I want to continue what appears to my Christmas break tradition of blogging about Occam's dildo and other funny footnotes, especially if they have some tie to the work on retribution that Mike and I are engaged in. Today, while looking over David Dolinko's 1997 Law and Philosophy article, Retributivism, Consequentialism, and the Intrinsic Goodness of Punishment, I came across Dolinko's discussion and critique of "consequentialist retributivism." He writes:

It seems, then, that positing that punishment of guilty persons is an intrinsic good is far from explaining why there should be a duty to set up state institutions to mete out such punishment.

And the footnote to that sentence reads:

The point is even clearer if, instead of happiness, we think of other plausible, though more disputable, candidates for the title "intrinsically good." One might well believe that the intensely pleasurable sensations accompanying orgasm are intrinsically good, without for a moment supposing that this suggests a duty to set up state institutions to dole out orgasms to people! Indeed, it's not merely that there is no duty on the state to set up such institutions. There is likewise no duty on any individual to provide others with orgasms whenever he or she is in a position to do so.

So the question before us, I suspect, is which metaphor or analogy seems more apt to conduce understanding of the value and obligation of retribution: is the imposition of retribution closer to the imposition of orgasm, the achievement of health (as some commenters on Mike's posts suggested), or something else? :-)

Happy Boxing Day! And as always, feel free to share your own favorite footnotes in the comments.

Full post as published by Prawfs on December 26, 2008 (boomark / email).