Profiles in Scholarship
Robert A. Ferguson
Professor Robert A. Ferguson has crafted a magnum opus that uses literature and philosophy as lenses for examining criminal punishment in America
Several years ago, Professor Robert A. Ferguson was struck by a realization while teaching his perennially popular course on the art of legal persuasion. During a practicum in which students recommended punishments for hypothetical criminal defendants, he noticed the gulf that often separated students’ strong emotions about punishment from their intellectual grasp of the human and social costs of that punishment. What’s more, believed Ferguson, this gulf was at the root of a dysfunctional national system.
Diminishing that disconnect and dysfunction became a focal point for Ferguson’s research during the years that followed, and his thinking on the topic ultimately coalesced into the form of an acclaimed new book, Inferno: An Anatomy of American Punishment (Harvard University Press: 2014). The work argues that although the urges toward cruel punishment are rooted in human nature, it is both possible and morally imperative to stop them from finding reflection in our penal codes and mores. The Atlantic described the book as “potentially transformative” in a recent review.
“I see the law as a humanistic enterprise,” says Ferguson, whose interdisciplinary approach to legal history helped pioneer the now-thriving law and literature movement. “But while law schools teach people how to punish, they don’t do much with the punished. Every theory of punishment, even the most liberal, has an inclination to make punishment more intense, especially if it isn’t working. We’ve moved from torturing the body as much as possible, to torturing the soul, essentially. It’s a radical shift.”
In Inferno, Ferguson uses seven chapters to examine a central question: Are our punishment regimes the way they are because we want them to be that way, or because of contingencies that have produced a perfect storm of punishment? “Most good projects begin with a burning question,” says Ferguson. “That was my question.” The answer is, as one would imagine, complicated. But the solutions Ferguson offers in the book are straightforward. He advocates for reducing the amount of degradation in the American prison system, and he argues for conditions of serving time that meet the essential requirement of human punishment: that “the life of the recipient of punishment must continue to be worth living.”
As with so much of Ferguson’s scholarship, Inferno relies on a masterfully tailored fusion of legal, philosophical, and literary sources. “Literature is better at explaining the psychology of the punished than the law is,” says Ferguson, the George Edward Woodberry Professor in Law, Literature, and Criticism. “So each chapter of Inferno deals with a piece of literature, from the Bible to contemporary fiction.”
Ferguson believes there are practical benefits to the study of literature for young lawyers and, more generally, anyone who plans to argue cases before judges and juries. “The same devices are used in both legal and literary texts: point of view, narrative,” he says. “They’re just used in the law in a more subtle way.”
Though Inferno is not the first time Ferguson has deployed his humanities expertise to better understand the role of law in American life, it does represent the first time he has so pointedly aimed the result at nonacademic readers. “I wanted this book to bridge the distance between legal experts and a general, literate audience,” he says.
It does not hurt that the work takes its name from a poet who has achieved considerable success with everyday readers over the centuries: Dante Alighieri. It is the second book of Dante’s famous trilogy that Ferguson says offers a kind of guiding spirit for prison reform in our own time. “In Purgatory, Dante has people helping each other,” he says. “Dante recognizes his fellow humanity with people who are suffering. Something like that has to happen again.”