Dan Markel (Florida State University College of Law) & Chad Flanders (Saint Louis University – School of Law) have posted Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Justice (98 California Law Review 909-990 (2010)) on SSRN. Here is the abstract:
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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.
A new version of a highly recommended paper.