Applying Mabbott’s Legal Retributivism

This discussion is for after you have read the following:
Mabbott, “Punishment”
Mabbott, “Professor Flew on Punishment” (excerpt)
Tierney, “An Overview of Mabbott’s System” (handout)
Smart, “An Outline of a System of Utilitarian Ethics” (excerpt)
Williams, “A Critique of Utilitarianism” (excerpt)
Tierney, “Using Smart and Williams to Critique Mabbott” (handout)
In the handout entitled “Using Smart and Williams to Critique Mabbott,” in the context of an example I provided, I claim the following.
“If the judge (and the public) knew that the institutions of criminal justice, its legal structure, and particular criminal laws were created on utilitarian grounds, she would be more likely to deviate from the impartial application of the law as written in cases like Jones’, i.e., case where strict application of the law would produce a significantly counter-utilitarian result. More precisely, I suggest that she would be more likely to deviate from a strict application of the law in a real-world criminal justice system where Mabbott’s theory had been implemented than she would be in a somewhat mixed or jumbled system like our own or in one where the legal institutions and criminal laws were known to have been founded on some principle of retributivism (perhaps the version that is based on the idea that those who violated the criminal law morally deserve to be punished for their wrongdoing).”
As I say in that handout, these claims are empirical conjecture “about what judges would do given human psychology.” In this regard, “I have said nothing … about what judges shouldideally do. I have merely suggested what they would, as a matter of fact, be likely to do.” From there, I develop a criticism of Mabbott’s theory based on the assumption that these empirical claims are plausible enough to be worth assuming for the sake of examining their implications.
For this discussion, my question to you is the following. Do the empirical claims that I make in the italicized quotation above seem plausible or even likely to be true, or do you think the contrary? Again, for this question, you are not saying what judges should do, just what (based on your understanding of human psychology) judges would actually be likely to do. Please explain the basis of your answer.
I am not looking for a “correct” answer. I am looking for intelligent, careful reflection and clarity and care in expressing yourself.

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