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Criminal Law

Saint Louis University School of Law

Retributive justice

2010

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Bentham On Stilts: The Bare Relevance Of Subjectivity To Retributive Justice, Dan Markel, Chad Flanders Jan 2010

Bentham On Stilts: The Bare Relevance Of Subjectivity To Retributive Justice, Dan Markel, Chad Flanders

All Faculty Scholarship

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. …