Essay for A Law Students Toolkit on Coursera. 15/15 points.

Professor Ayres argues that all interesting legal scholarship engages normative questions. Can you suggest and defend other criteria for interesting scholarship? 

In legal and philosophical contexts, normative reasoning refers to thinking about how things should be, which is fine. There is room for this kind of discourse. Speculation is fun at first, although can quickly become dull. 

Imagine a criminal who has committed an unspeakable act, shows no remorse, and cannot possibly atone for it. In the future neurotechnology could definitively rehabilitate him by erasing his antisocial tendencies.

Should he still be punished? 

Normative questions are seductively open-ended. Stimulating as they may be, consider the reprogrammed miscreant: the normative question of whether he deserves punishment yields no satisfying answer. A steadfast utilitarian may say no: he poses no threat and would unnecessarily suffer. Though another utilitarian, of the cruder and purely quantitative Benthamite lineage, might claim that the satisfaction gleaned by the affected parties, seeing the perpetrator receive justice, would outweigh other considerations. 

And if neither the victim nor anyone who cared for them is left, is there still a reason to sentence them? A deontologist would likely say yes, although given the unique circumstances this is not guaranteed. The perpetrator broke the law, even if the self that did so no longer exists. Meanwhile, society at large, moved by a more visceral morality, would clamor to have him hanged (assuming they were aware of the crime).

Someone might argue that this is why normative reasoning is needed. Yet the common consensus would not come from following an abstract ideal. It’s dictated by an innate sense of justice rooted in instinct.  

In The Metaphysics of Morals Immanuel Kant imagines a small, self-contained island society whose inhabitants unanimously decide to disband—they’re dissolving their nation and scattering to other lands. Although the legal order is set to vanish, there’s one prisoner left: a convicted murderer who can be killed or left on the island…which seems like a pretty terrible punishment of sorts (like many thought experiments, it becomes pretty silly when you think about it). 

Should he be executed? Kant says yes. While no tangible benefit will be reaped by executing him, the man has committed a transgression and must suffer in proportion to it. 

Instead of conjuring his own facile thought experiment, Fairfield University’s Greg Caruso attempts to turn this scenario upside down, recasting retributivism as backwards-looking (and, in doing so, missing the point). His case, in his mind, is bolstered by his belief that free will does not exist in any form. If it did, his anti-retributivist stance would fall apart like a paper umbrella in a monsoon.

Given that this is still an intractable and highly interdisciplinary issue, Caruso, like some other Canadian academics, may want to stay in his own lane. His misapplication of disjointed studies from psychology that are, let’s be frank, open to interpretation, misses the mark and reiterates our implied point: a normative question has to be compatible with observable, preferably undeniable, facts. And even then…

Both the originator and the mutilator of this contrived thought experiment underscore the absurdity of normative reasoning. Yet some real-world examples vindicate Caruso, at a glance. The case of Cornealious “Mike” Anderson is one example. In 2000, Anderson was convicted of armed robbery in Missouri and sentenced to thirteen years in prison. Due to a clerical error, he was never incarcerated. Over the next thirteen years he started a family, ran a business, paid taxes, and volunteered in his community. 

When the error was noticed in 2013, he was arrested. The legal system saw someone with an unsettled debt; the public saw a man who had remolded himself, achieving what imprisonment was meant to accomplish. Pushback led to his release in 2014. This outrage didn’t come from carefully deliberating the matter in a philosophical manner. It came from what felt like the right decision in hindsight. 

Was he motivated to remain on his best behavior because the specter of spending his days stuck in a small cell hung over his head? Had he been found innocent or given early parole, would things have turned out differently? It’s impossible to say. Even he may not know how he’d have acted under different circumstances.

The law operates in a world of imperfect knowledge, political compromises, emotional undercurrents, and a litany of practical constraints and concerns. Stripping away real-world context may illuminate a theory’s essential structure, but they also reveal how little its logic accounts for how it is put into practice.

Dignity, disgust, and vengeance are not artifacts of a bygone age; they’re enduring parts of moral psychology. Pretending that emotion could ever be excised from our institutions is the kind of idea that can only exist in academia. Unflinching utilitarians might not condemn necrophilia if the deceased left no loved ones to be distressed. Yet most of us are opposed to this deviation not because it is harmful, but because it is repulsive

In a strictly utilitarian society Leon Kass’s “wisdom of repulsion” is replaced by rank materialism. Disgust counts for nothing unless it can be translated into measurable harm. While this has been dismissed by philosophers like Martha Nussbaum, who contends that revulsion is too entangled with prejudice to serve as a moral guide, it remains a potent force in shaping public intuitions about justice. Take it away and you risk constructing a legal order unmoored by the instincts that have long underpinned social cohesion. 

This is where Professor Ayres’s statement goes awry: in its quest for philosophical purity, normative thought often discards the practical and emotional substrates that make laws enforceable and legitimate. Interesting legal scholarship is rarely about searching for absolute truth, as this almost always leads down a blind alley; it attempts to bridge, however tenuously, the ideal and the visceral, revealing the gap between what the law is supposed to be doing and what it’s really doing. 

References

Caruso, Gregg D. Rejecting retributivism: Free will, punishment, and criminal justice. Cambridge University Press, 2021.

“Judge Rules 13-Year Sentence Man Never Served Is Complete.” NBCNews.Com, NBCUniversal News Group, 5 May 2014, http://www.nbcnews.com/news/us-news/judge-rules-13-year-sentence-man-never-served-complete-n97301. 

Kant, Immanuel. Kant: The metaphysics of morals. Cambridge University Press, 2017.

Kass, Leon. “The wisdom of repugnance.” June 2 (1997): 17-26.

Nussbaum, Martha C. “Disgust and Moral Judgments.” A Reader in Moral Philosophy (2022): 287.