In this Article, Professor Kahan identifies the political and moral economies of deterrence theory in legal discourse. Drawing on an extensive social science literature, he shows that deterrence arguments in fact have little impact on citizens' views on controversial policies such as capital punishment, gun control, and hate crime laws. Citizens conventionally defend their positions in deterrence terms only because the alternative is a highly contentious expressive idiom, which social norms, strategic calculation, and liberal morality all condemn. But not all citizens respond to these forces. Expressive zealots have an incentive to frame controversial issues in culturally partisan terms, thereby forcing moderate citizens to defect from the deterrence detente and declare their cultural allegiances as well. Accordingly, deliberations permanently cycle between the disengaged, face-saving idiom of deterrence and the partisan, facebreaking idiom of expressive condemnation. These dynamics, Professor Kahan argues, complicate the normative assessment of deterrence. By abstracting from contentious expressive judgments, deterrence arguments serve the ends of liberal public reason, which enjoins citizens to advance arguments accessible to individuals of diverse moral persuasions. But precisely because deterrence arguments denude the law of social meaning, the prominence of the deterrence idiom impedes progressives from harnessing the expressive power of the law to challenge unjust social norms. There is no stable discourse equilibrium between the deterrence and expressive idioms, either as a positive matter or a normative one.
The export option will allow you to export the current search results of the entered query to a file. Different
formats are available for download. To export the items, click on the button corresponding with the preferred download format.
By default, clicking on the export buttons will result in a download of the allowed maximum amount of items.
To select a subset of the search results, click "Selective Export" button and make a selection of the items you want to export.
The amount of items that can be exported at once is similarly restricted as the full export.
After making a selection, click one of the export format buttons. The amount of items that will be exported is indicated in the bubble next to export format.