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In The Theory of Value Dilemma: A Critique of the Economic Analysis of Criminal Law, Dan Kahan makes a concise and elegant case for the inability of economic analysis to criticize “intrinsic value retributivism.” The argument is as follows. Retributivism is backward looking. The wrongness of the crime determines the appropriate response. But what determines wrongness? Many theories have been offered, none are completely convincing. Ultimately, or so it seems, we follow our moral intuitions, if only because they are epistemically (not epistemologically!) closer than abstract theories about desert, universalization, or transcendental pragmatism. For consequentialists, this is a sad state of affairs. Moral intuitions are too close for comfort to subjective naturalism or intuitionism. A forward-looking approach promises greater degrees of rationality. Punishment is justified if it promotes a desired state of affairs. But what determines the desirability of a particular state of affairs? Once again, moral intuition. The difference between intrinsic value retributivism and consequentialism is thus reduced to one of rhetoric, not of substance. A golden age of past serves a function similar to a future heavenly kingdom. Both are expositional points of reference against which to measure present states of affairs.

We can’t make optimal deterrence judgments without a theory of value. Theories of value are always politically contestable; any argument about what’s worse than something else can fairly be asserted and fought for. Because the decisionmaker will always have more information about her theory of value than about the other considerations relevant to optimal deterrence, her theory of value will always dominate her analysis. So although it’s thereafter possible for her to reconstruct her conclusions in deterrence terms, those conclusions will in fact be derivative from the decisionmakers’ intuitions about what crimes are more reprehensible than others. So we might as well just talk about what’s more reprehensible than what, which is to say, we might as well talk intrinsic value retributivism.

But in what terms are we supposed to do that? In Kantian terms, deriving various degrees of reprehensibility by way of transcendental analysis? In Hegelian terms, using a theory of recognition as the yardstick? Or in consequentialist terms, applying Hobbes’ concept of freedom from restraint? Mill’s harm principle? Pettit’s maximization of dominion?
Answering that underlying normative question is beyond the scope of Kahan’s paper. His point is that choosing “an economic approach” does in no way help to avoid any of these questions. With that, I couldn’t agree more.

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