Conventions and Convictions: A Valuative Theory of Punishment

The one thing that most scholars of criminal law agree upon is that we are in desperate need of a comprehensive theory of punishment. The theory that comes closest to meeting this demand is the expressive account of punishment, yet it is often criticized for its inability to explain how the expression of communal values justifies punishment and why the condemnation of wrongdoing necessarily requires punishment. The Article answers these criticisms by arguing against the need to necessarily connect punishment to wrongdoing and by developing expressivism into a novel theory of punishment, grounded in the valuative function punishment serves. Offering an original interpretation of Immanuel Kant’s Critique of Judgment, the Article argues that criminal law should be understood as a device in the service of the individual’s interest in affirming her personhood, an interest that is promoted by the creation and communication of values. The Article posits that criminal law serves this purpose by safeguarding the conditions that facilitate valuative communication. It does so by (1) cataloging the values shared in the community; (2) outlining the ways in which these values are commonly interpreted; and (3) penalty responding to forms of behavior that hinder successful valuation. The Article concludes by examining the prohibition of abortion in light of the values such prohibition purports to protect, distinguishing between prohibitions that legitimately support the function of valuation and those prohibitions that serve communal values irrespective of the important function of valuation. The Article contends that, even if under certain circumstances an affront to protected values could justify the prohibition of abortion, the reasons for prohibition will commonly fail to justify the penal condemnation of those who perform or undergo it