Say you have a disagreement with someone over a newly emerging claim in the field of punishment theory—a problem many of you, no doubt, struggle with often. How could you express it? On the streets of Chicago, you might voice your disagreement by yelling the loudest or resorting to physical violence. In the highly evolved world of academia, however, you write a paper. The last Crime and Punishment Workshop was host to one such disagreement when Professor Donald Braman of the D. Brakahffman—Braman, Dan Kahan, and David Hoffman—trio was on hand to discuss their latest (as of yet unpublished) paper. The subject of the disagreement? The claim that humans have an innate sense of justice.
For regular readers, that subject should be familiar. Last November, the Workshop hosted Professor Paul Robinson of Penn Law, who presented results suggesting that humans share intuitions of justice across political and cultural divides, and that these intuitions may be innate. In their paper, Brakahffman critique such claims of "punishment naturalism" (i.e., the notion that shared intuitions of justice are explained by evolutionary biology), and offer an alternate approach, which they term "punishment realism."
Punishment naturalism, argue Brakahffman, suffers from several flaws, both conceptual and empirical. The first is a problem of scope—naturalists tend to emphasize the agreement in the so-called "core" crimes, which they claim represent a vast majority of offenses committed in the US. The "core," however, does not include "victimless" or "vice" crimes, and recent studies suggest the frequency of these sorts of crimes dwarfs that of crimes that do compose the "core." The claim that the "core" represents the vast majority of offenses committed, therefore, might be overstated.
The boundary between "core" and "peripheral" crimes, moreover, is not clear. Sexual misconduct (whatever that is), for instance, is not part of the "core" and yet, one would think that any innate sense of justice would incorporate intuitions about something so fundamental to survival as sex.
Finally, by stripping the scenarios used in the studies of contextual detail such as, say, the race of the victim and/or the aggressor, naturalists tend to derive results that may have little practical value. Perhaps all humans do agree that the brutal rape, torture, and murder of a child is quite deserving of punishment relative to, say, theft—but so what? This result, argue Brakahffman, has less meaning when our shared intuitions are only about crimes we all agree are "core."
As an alternative to naturalism, the authors present a theory they term "punishment realism," which accounts for both agreements and disagreements in punishment theory by examining the interaction of broadly shared (but generic) cognitive mechanisms and varying social meaning. Under this approach, the shared intuitions observed by naturalists would be explained by shared social meaning, rather than some innate notion of justice, while disagreements could be accounted for through variations in culture or the like. As an example, the authors examined murder: while there might be broad agreement about the relative harm of lying in wait and shooting someone as a general matter, that agreement likely would not exist if the context was colonial America, the aggressor was a slaveowner, and the victim was a slave. An innate sense of justice, therefore, cannot fully explain our intuitions about punishment.
The workshop attracted a number of questions from the audience, many of which focused on the relative importance of the naturalists' finding of shared intuitions. Shouldn't the fact that there is any agreement be a fascinating result, regardless of how limited it may be? Since the social meaning of most of the crimes investigated by naturalists is relatively static, the agreement is not as surprising, responded Braman. More importantly, as soon as the details of the victim and the aggressor are know, the agreement disintegrates.
Regardless of which view you subscribe to, realist or naturalist, it seems that a definite fault-line has developed; the debate that follows is sure to be interesting.