Dan Markel, Chad Flanders

Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Justice

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 inter-temporally and inter-subjectively, their punishments will accordingly have to be tailored to individual circumstances as well.

Our response is that this set of claims is either true, but of somewhat trivial 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 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 retributive punishment.