Criminal Punishment and the Right to Rule (original) (raw)
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The Rights of the Guilty: Punishment and Political Legitimacy
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In this essay I develop and defend a theory of state punishment within a wider conception of political legitimacy. While many moral theories of punishment focus on what is deserved by criminals, I theorize punishment within the specific context of the state's relationship to its citizens. Central to my account is Rawls's “liberal principle of legitimacy,” which requires that all state coercion be justifiable to all citizens. I extend this idea to the justification of political coercion to criminals qua citizens. I argue that the liberal principle of legitimacy implicitly requires states to respect the basic political rights of those who are guilty of committing crimes, thus prohibiting capital punishment.
Criminal Law and Philosophy, 2021
Many seem to find it hard to imagine a modern state and individual rights without criminal punishment, in this way giving exceptional status to the criminal law. Two key aspects of the modern state seem particularly dependent on the state’s ability to punish: keeping the monopoly of violence by preventing informal justice and realizing individual rights. However, as I will suggest in this short essay, it seems that often when we envision the costs of a state without punishment what we are really doing is stripping the state of its more general capacity to resort to force in order to compel obedience or realize rights. A closer look into the ways in which the criminal law helps secure the state’s monopoly over violence and individual rights suggests that the criminal law is not as necessary or unavoidable as many might think for the constitution and promotion of these important aspects of the state.
Why Punish the Guilty? Towards a Philosophical Analysis of the State's Justification of Punishment 1
There is general acceptance that those who break the law must be punished; however, not all agree as to why this is necessary. Some argue punishment is necessary to reform criminals, others to deter criminals, and others because you deserve it, whether punishment reforms or deters. Stripped of metaphors, this paper argues that punishment is retribution, but that a distinction must be made between the definition of punishment as retribution and its justification, if a case is to be made for its moral justification. Thus the most important question the paper raises relates to the justification of punishment as retribution. ________________________________________________________________________
A Political Theory of Criminal Law: Autonomy and the Legitimacy of State Punishment
SSRN Electronic Journal, 2004
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Article Democracy and punishment
2016
This article begins by arguing against the claim of some scholars that the opinions and attitudes of ordinary citizens about criminal justice policy are bounded either by feelings of hostility toward criminal offenders or by indifference toward their rights as human beings. The purpose of this discussion will be to demonstrate that there is sufficient cause to think that meaningful democratic engagement on criminal justice issues is possible, such that an inquiry into the democratic legitimacy of criminal justice policy is worth taking up. This discussion sets the stage for an inquiry into the conditions of democratic legitimacy. The article critiques the view that institutionalized deliberation is a sufficient condition for regarding criminal justice policies as legitimate and argues instead for a radical-democratic approach to evaluating the democratic legitimacy of criminal justice policies.
Facets of control: Criminal justice regimes in analysis
»I´ll be right back.« These are the words Solon, ruler of Athens, wrote at the top of Athen's first comprehensive positive law. Around 594 B.C.the traditional yet controversial date-he set his laws into writing. And then he left. The citizens had no other choice than to tackle the legal provisions on their own. For Solon had obtained a ten-year break from the Athenians in order to avoid the stampede of people who, when the laws of Solon [were] put into operation […] would come to him every day with praise or censure of them, or with advice to insert something into the documents, or take something out. Very numerous, too, were those who came to him with inquiries and questions about them, urging him to teach and make clear to them the meaning and purpose of each several item. (Plut. Sol. 25.4-5; 1 emphasis A.K.)
A Shifting and Convoluted Paradigm in the Regime of Crime Control, Due Process and Penal Justice
Journal of Law, Policy and Globalization, 2019
The well-known criminal justice constituencies of crime control, due process and penal sentence are facing far reaching transformations resulting in some paradoxical outcomes that include an upsurge in populist legislations and the emergence of non-state actors in justice administration. Although these may be reflections of criminal justice’s attempt to enhance effectiveness, the outcome has been severely convoluted that the question of rights and even the foundation of theory of social contract are waning into the shadows of bureaucratic policies and practices that seemed to threaten the fabric of justice administration. This paper is an attempt to show how criminal justice policies and strategies are gravitating from their orthodox constituency to a territory that is mixed in populism, punitivism as well as the compounded regime of coalitions of public and private actors defined mostly by contentious new practices of crime control, procedural changes and an economic way of thinkin...
The rule of law beyond the state: Failures, promises, and theory
Resorting to the " rule of law " within the traditional environment of international law generates diffi culties, especially when circumstances require us to square the circle by accommodating normative claims with state legal orders, fundamental rights, and democracy. Unsurprisingly, in recent cases brought before supranational courts, such as the European Court of Justice (Kadì and Al Baarakat, for example), or domestic courts, such as the United States Supreme Court (Hamdan, for example), the import and notion of the rule of law have been interpreted in ways that reveal the uncertainty surrounding the concept and the rather idiosyncratic or instrumental uses to which it is put. Through the analysis of such instances, this article proposes a restatement of the rule of law that better explains its use beyond state borders. Then, it shows how the relation between different orders, as a factual matter, does not obey some monist hierarchy and does not even refl ect the logic of the " dualism " of self-contained systems. Given that the autonomy of legal orders is a vital contemporary reality, confrontation between them and with international law appears to be replacing the formal primacy of sources as well as blind or dogmatic closure by content-dependent constitutional assessments. In this connection, a road taken in the European environment shows that communicative pluralism can embark on a practice of giving reasons inherently capable of producing common standards, the rule of law, and thin lines of principle. All of these factors are ingredients that might fi nally evolve further into a rule of recognition for the international legal order.