This essay is a contribution to a special issue of the Florida State University Law Review in memory and honor of Dan Markel, who was tragically murdered over ten years ago. During his life, Dan and I disagreed about the normativity of rule breaking. By his theory of “political retributivism,” Dan posited that individuals are almost always morally obligated to obey criminal laws enacted by a sufficiently liberal state. I responded (and still steadfastly believe) that there is no moral salience to law qua law.
It would have been inappropriate, however, for me to use these pages to rehash our deep differences. Instead, I decided to update our debate by incorporating two of the most significant political movements of the last decade—specifically, Trumpism on the ideological right and criminal-legal abolitionism on the ideological left. Through that intellectual exercise, I came to discover unexpected common ground with Dan. I now argue that Dan’s theory of political retributivism might be somewhat attractive after all, not as a deontic proxy for moral blameworthiness (as Dan had conceived of it) but instrumentally as a liberal-institutional bulwark against the destructive authoritarian impulses that most threaten contemporary America’s capacity to become a more decent society. By this reading, which I ground in the pragmatic progressivism of Richard Rorty, I offer prudential reasons to reject criminal-legal abolitionism in favor of minimalist punishment approaches that would concentrate systemic energies on those who steal elections, not wallets.