How to improve empirical desert

Brooklyn Law Review 75 (2):433-461 (2009)
According to empirical desert advocates, lay moral intuitions are consistent with retributive approaches to punishment, and policymakers can increase compliance with criminal justice policies by punishing in accord with those intuitions. I offer three challenges to empirical desert intended ultimately to strengthen its theoretical underpinnings: First, advocates have cherry-picked certain moral intuitions, while ignoring others. Second, they have yet to demonstrate the weight to assign the compliance induced by empirical desert relative to the weight of other consequentialist considerations. Third, empirical desert arguably exploits laypeople by using their “mistaken” beliefs about punishment to encourage their compliance with consequentialist goals. Such exploitation may trouble defenders of the “publicity condition,” 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 will 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?”.)
Keywords Punishment  Empirical Desert  Retributivism  Consequentialism  Intuition
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