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Some Realism About Punishment Naturalism (with Donald Braman and David A. Hoffman), 77 University of Chicago Law Review 1531 (2010)


In this Article, we critique the increasingly prominent claims of Punishment Natu- ralism-the notion that highly nuanced intuitions about most forms of crime and pu- nishment are broadly shared, and that this agreement is best explained by a particular form of evolutionary psychology. While the core claims of Punishment Naturalism are deeply attractive and intuitive, they are contradicted by a broad array of studies and depend on a number of logical missteps. The most obvious shortcoming of Punishment Naturalism is that it ignores empirical research demonstrating deep disagreements over what constitutes a wrongful act and just how wrongful a given act should be deemed to be. But an equally serious shortcoming of Punishment Naturalism is that it fails to pro- vide a credible account of the social and cognitive mechanisms by which individuals evaluate both crime and punishment, opting instead for explanations that are either specific and demonstrably wrong or so vague as to be untestable. By way of contrast, we describe an alternative approach, Punishment Realism, that develops the core insights of legal realism via psychology and anthropology. Punishment Realism, we argue, offers a more complete account of agreement and disagreement over the criminal law and provides a more detailed and credible account of the social and cog- nitive mechanisms that move people to either agree or disagree with one another on whether a given act should be praised or punished and how much praise or punishment it deserves. The differences between these two empirical accounts also suggest contrasting implications for how those interested in maximizing social welfare and public satisfaction with the law should approach questions of crime and punishment.

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