Legal Commentary

Chad Flanders (SLU) and I have a draft of a newish paper finally up on SSRN. The paper is called Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Justice, and you can find a draft here. A final version is slated to appear in  Calif LR in August 2010. Comments are especially welcome before April 21st but there's a good possibility that even after that we'll be able to make some minor tweaks, so please send me (or Chad) your thoughts at any level of specificity. Here's the abstract: 

In recent work, various scholars have challenged retributive justice theorists to pay more attention to the subjective experience of punishment, specifically how punishment affects the experiences and well-being of offenders. The claim developed by these ?subjectivists? is that because people?s experiences with pain and suffering differ, both diachronically and inter-subjectively, their punishments will have to be tailored to individual circumstances as well.



Our response is that this set of claims, once scrutinized, is either true, but of limited significance, or nontrivial, but unsound. We don?t doubt the possibility that different people will react differently to the same infliction of punishment. It seems foolish to deny that they will (although such claims can be exaggerated). What we deny, in the main, is that this variance in the experience of punishment is critically relevant to the shape and justification of legal institutions meting out retributive punishment within a liberal democracy.