Document Type

Working Paper

Publication Date

3-14-2011

SSRN Discipline

Legal Scholarship Network; Criminal Law & Procedure eJournals; Law School Research Papers - Legal Studies; CSN Subject Matter eJournals; LSN Subject Matter eJournals; Law School Research Papers - Public Law & Legal Theory; Cognitive Science Network; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Humanities Network; Law, Brain & Behavior eJournals; Law Research Centers Papers

Abstract

We examine two recent challenges to retributionbased justifications for criminal punishment based on neuroscientific evidence The first seeks to undermine retributivism because of the brain activity of subjects engaged in punishment decisions for retributive as opposed to consequentialist reasons This challenge proceeds by linking retributivism with deontological moral theories and the brain activity correlated with deontological moral judgments The second challenge seeks to undermine retributivism by exposing through neuroscientific information the purportedly implausible foundation on which retributivism depends one based on free will and folk psychology We conclude that neither challenge succeeds The first challenge fails in part because the brain activity of punishers does not provide the appropriate criteria for whether judgments regarding criminal punishment are justified or correct Moreover retributivism does not necessarily depend on the success or failure of any particular moral theory The second challenge fails because neuroscience does not undermine the conceptions of free will or folk psychology on which retributivism depends Along the way we point out a number of faulty inferences and problematic assumptions and presuppositions involved in these challenges to retributivism

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