Academic literature on the topic 'Justification of punishment'
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Journal articles on the topic "Justification of punishment"
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Cogley, Zac. "FORTIFYING THE SELF-DEFENSE JUSTIFICATION OF PUNISHMENT." Public Affairs Quarterly 31, no. 4 (October 1, 2017): 325–43. http://dx.doi.org/10.2307/44732801.
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Abstract David Boonin has recently advanced several challenges to the self-defense justification of punishment. Boonin argues that the self-defense justification of punishment justifies punishing the innocent, justifies disproportionate punishment, cannot account for mitigating excuses, and does not justify intentionally harming offenders as we do when we punish them. In this paper, I argue that the self-defense justification, suitably understood, can avoid all of these problems. To help demonstrate the self-defense theory’s attraction, I also develop some contrasts between the self-defense justification, Warren Quinn’s better-known "auto-retaliator" argument, and desert-based justifications of punishment. In sum, I show that the self-defense justification of punishment is more resilient than commonly supposed and deserves to be taken seriously as a justification of punishment.
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Berman, Mitchell N. "Punishment and Justification." Ethics 118, no. 2 (January 2008): 258–90. http://dx.doi.org/10.1086/527424.
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Jacobs, Jonathan. "Luck and Retribution." Philosophy 74, no. 4 (October 1999): 535–55. http://dx.doi.org/10.1017/s0031819199000662.
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The main claims are the following. (1) If we keep before us the distinction between the justification of punishment and its aims, we see that retribution is not an aim of punishment, and that there is a central place for retributivist considerations in the justification of punishment. (2) Justifications based upon aims or consequentialist considerations suffer from a serious epistemic vulnerability not shared by retributivism. (3) There are ethically sound sentiments that underwrite retributivist justification, and it would be a mistake to redeploy those sentiments. (4) The ethical authority of those sentiments justifies punitive sanction. (5) Retributivist justification is compatible with consequentialist aims.
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Candra, Marli. "The Penology of Islamic Criminal Law: Reintroduction of Islamic Penology." AL-'ADALAH 15, no. 2 (January 24, 2019): 345. http://dx.doi.org/10.24042/adalah.v15i2.2783.
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The justification for punishment is an interesting topic and undying debate among the scholars. Those who in favor of traditional approach would state that punishment is retributive in nature, whereas the opposite party would declare that punishment is for future benefits either particularly for offender or society in general. In this article, the researcher will elaborate the penological approach of punishment in Islamic criminal law. This study applies a comparative analysis based on the qualitative approach to compare the concept of punishment and its justification in the modern penology as well as in Islamic perspective. The study finds out that the justification for punishment in Islam, which is mainly contained in the hudûd and qishâsh offenses, does not deviate from what is understood by modern penology. Islamic law provides harsher punishment for serious offenses, but at the same time, it also prescribes ways on how to reduce such punishments.
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Xiao, Erte, and Fangfang Tan. "Justification and Legitimate Punishment." Journal of Institutional and Theoretical Economics 170, no. 1 (2014): 168. http://dx.doi.org/10.1628/093245614x13817353577439.
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Hallich, Oliver. "Strafe als Vergeltung: Plädoyer für einen hermeneutischen Retributivismus." Zeitschrift für philosophische Forschung 75, no. 3 (August 15, 2021): 383–405. http://dx.doi.org/10.3196/004433021833548688.
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Retributivism is usually taken to be a theory of the justification of punishment. In this contribution, I develop an alternative understanding of retributivism. Rather than as a theory of the justification of punishment, I propose to regard it as a hermeneutic theory, i.e.a theory about how we understand (some) punishments. I start with an explanation of what "hermeneutical retributivism" is (1). In what follows, I examine the ramifications of this view (2). It leads to a different assessment of the relation between retributive theories and prevention theories (2.1) and of the relation between punishments and non-punitive mea- sures such as preventive custody (2.2). It also leads to a reconceptualisation of the problem of the justification of punishments (2.3). Some concluding remarks summarize the arguments in favor of hermeneutical retributivism (3).
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du Bois-Pedain, Antje. "Hegel and the Justification of Real-world Penal Sanctions." Canadian Journal of Law & Jurisprudence 29, no. 1 (February 2016): 37–70. http://dx.doi.org/10.1017/cjlj.2016.2.
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This article revisits Hegel’s writings on punishment to reconstruct from them a justification for the imposition of real-world penal sanctions. Tracing Hegel’s argumentative path from a bare retributive principle to his mature justification of state punishment, it argues that Hegel offers us convincing reasons for endorsing, in broad shape, the distinctive penal institutions and practices of a modern nation-state. Hegel is also right to stress that punishment is – not merely conceptually, but also in the reality of our social world – a recognition of an offender’s status as a bearer of rights and participant in a system of mutual recognition that allows us to collectively build and maintain an order of freedom. This understanding of punishment sets significant limits to punishment’s permissible forms, particularly – but not only – with regard to the death penalty. By focusing on what it means to honour an offender through punishment and by drawing attention to what legal punishment has in common with reactions to transgressions by the will more generally, I question whether the infliction of penal suffering can, as such, be a legitimate aim of penal agents. In conclusion, I argue that only a commitment to penal minimalism, developable from Hegel’s thought, can give those subjected to real-world penal sanctions a complete answer to the question why they should accept their punishment as justified.
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Duff, Antony. "Retributive Punishment — Ideals and Actualities." Israel Law Review 25, no. 3-4 (1991): 422–51. http://dx.doi.org/10.1017/s0021223700010529.
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A consequentialist holds that systems of criminal punishment must be justified, if they can be justified at all, by their consequential benefits. It is a contingent fact, if it is a fact at all, that these benefits are most efficiently attained by a system of punishment, and by punishments which ordinary moralists would regard as just; and a thorough-going consequentialist must be ready in principle to justify punishments which many would condemn as unjust. A retributivist, on the other hand, insists that the justice of a system or instance of punishment is essential to its justification; and that the demands of justice cannot be reduced to those of consequential utility.Retributivist accounts of punishment come in a variety of forms: we must distinguish those who insist only that guilt is a necessary, not a sufficient, condition of justified punishment from those who insist that punishment must be fully justified by reference to a past offence; and amongst the latter we find various accounts of how it is that an offence justifies or requires punishment. But essential to any retributivist account is the claim that an adequate justification of punishment must cite not, or not only, its consequential benefits, but its relationship to a past offence: it is a non-consequentialist requirement of justice that punishment must be of an offender, for an offence; that only the guilty may be punished, and that the severity of their punishments should be limited, if not completely determined, by the seriousness of the offences for which they are punished.
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Marmor, Andrei. "Right-Based Justification of Punishment." Israel Law Review 22, no. 1 (1987): 97–106. http://dx.doi.org/10.1017/s0021223700011249.
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The deontological justification of punishment is generally associated with the notion of “retributive justice”. This notion, however, underlies only one of two distinct approaches by which one may attempt to justify punishment within deontological morality. According to this, the classical approach, punishment is to be regarded as an end in itself, intrinsically valuable, from the moral point of view. According to other deontological views, however, punishment has only instrumental value – not, as in consequentialism, in the maximization of some general social good, but in the maintenance and equal distribution of basic individual rights. Borrowing Dworkin's terminology, this view can be called a “right-based” conception of punishment.
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Scheid, Don E. "Constructing a Theory of Punishment, Desert, and the Distribution of Punishments." Canadian Journal of Law & Jurisprudence 10, no. 2 (July 1997): 441–506. http://dx.doi.org/10.1017/s0841820900001594.
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Punishment, by definition, involves the intentional imposition of some deprivation or suffering on individuals against their wills. On any moral view, there is a very strong presumption against doing this to people; so, if a society has an institution of punishment, some justification is needed. On the face of things, such an institution would seem to be an evil. What, then, is the justification for punishment? And once this question has been raised, related questions arise. Who should be punished and how severely? And what principle or principles should we use when setting up sentencing guidelines? Any adequate theory of punishment must provide some guidance, some useful headings, even if not a detailed chart, for answering these questions, among others.In this paper, I outline a theory of punishment that I believe best answers these sorts of questions. Inevitably, some parts are far sketchier than others; but within the general outline, the major focus is on the concept of desert and on the application of desert principles in determining the just allotment of punishments. This leads to a framework for constructing a crimes/punishments schedule for sentencing. Along the way, a number of lesser issues are discussed as well.
Dissertations / Theses on the topic "Justification of punishment"
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Johnson, Amanda Jane. "An Ideal Justification of Punishment." University of Sydney, 2006. http://hdl.handle.net/2123/1937.
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Doctor of Philosophy (PhD)Legal punishment is frequently regarded as a cornerstone of both the legal system and of society more broadly yet (surely to its detriment) it is a practice which lacks a firm philosophical foundation. In spite of exercising many extremely capable legal and philosophical minds (particularly during the twentieth century) no generally agreed upon justification of punishment has been found. The nub of the problem has however been acknowledged as the inability of either of the major candidate theories (utilitarianism or retributivism) to provide an account able to address all the relevant parties. Whilst utilitarianism is often regarded as competent to the task of justifying punishment to society in terms of the attainment of some greater good, it seems entirely inadequate when it comes to formulating a justification to the criminal to explain why he has been singled out for punishment. And in the case of retributivism the situation is reversed. To the criminal it can be put that through punishment he is treated in accordance with what has done, but in the matter of justifying punishment to society, the key principle of desert is unable to be properly grounded. Thus the central motivation of this thesis is to attempt to redress this shortcoming in the philosophical literature and to formulate a viable justification of legal punishment. Ultimately it will be argued that the accounts of both Kant and Hegel offer a way of resolving the dilemma of punishment, and in particular their idealist orientation over and above their more widely acknowledged characterization as retributivists. In Kant’s case his contribution is derived from a reworked and more sophisticated version of his retributivism than is generally found in the literature, inspired by the work of Susan Meld Shell. Following Shell’s lead Kant’s construction of justice is explored and found to both enhance and support the traditional justification of punishment he can offer to the criminal, and to furnish an otherwise elusive justification of punishment to society more broadly. A reading of Hegel on punishment is also developed by taking seriously his theory of recognition and aspects of his logic, particularly regarding negation and contradiction. His account then addresses quite neatly and straightforwardly the three audiences for whom a justification of punishment is sought – the criminal, the victim and society itself. Not only does the thesis address the problem of punishment but it has further implications for Kant and Hegel scholarship as well as philosophy more broadly. One of the key points to come out of this thesis is that Kant and Hegel (if given adequate intellectual consideration) seem potentially able to offer up significant contributions to contemporary problems and issues beyond just the one argued for here regarding punishment. Their work is not merely of historical interest but has real and wide ranging possibilities which provide a rich resource for future research.
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Whiteley, Diane Elizabeth. "A naturalistic justification for criminal punishment." Thesis, National Library of Canada = Bibliothèque nationale du Canada, 1998. http://www.collectionscanada.ca/obj/s4/f2/dsk2/tape15/PQDD_0026/NQ34643.pdf.
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Brown, Stephen Paul. "The moral justification of retributive punishment by reference to the notion of balance." Thesis, University of Sheffield, 1998. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.286880.
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Obara, Mika. "Governmental justification for capital punishment in Japan : case study of the de facto moratorium period from 1989 to 1993." Thesis, Loughborough University, 2013. https://dspace.lboro.ac.uk/2134/12529.
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Whilst studies on capital punishment in Japan have been conducted by various scholars from various perspectives, empirical research on the de facto moratorium period is largely unavailable. This thesis aims to investigate how consistently the Japanese government justified capital punishment during the execution-free period from 1989 to 1993. Its primary goal is to throw light on the elite-driven nature of the capital punishment system where important decisions are made within the closed institutional dynamic, often irrespective of domestic or international factors. It will also highlight that capital punishment policy has been dealt with by the Japanese government as an issue of law and order, which does not necessarily invite criticism from human rights perspectives. The thesis then proceeds to empirically examine the governmental discourse on capital punishment from 1980 to 2002. It will contend that investigations from an appropriate approach can make clear the elite-driven nature of capital punishment policy in Japan. Finally, it will suggest implications for the international and domestic anti-death-penalty advocates regarding their campaigns over Japan, and reflect on how this thesis can help tackle future research.
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Chovgan, Vadym. "Les limitations des droits des détenus : nature juridique et justification." Thesis, Reims, 2018. http://www.theses.fr/2018REIMD001/document.
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Cette thèse porte sur les limites du pouvoir étatique de restreindre les droits des détenus. Afin d'explorer cette question, l’auteur identifie les spécificités de ces limitations qui peuvent influencer la justification de leur application. Ces spécificités rendent la justification des limitations en milieu pénitentiaire plus facile par rapport à celles des citoyens libres. La thèse propose des barrières juridiques améliorées contre les limitations non-justifiées.L’auteur propose une théorie originale sur la nature juridique des limitations aux droits des détenus. Il décrit aussi les normes pertinentes développées par l’ONU et le Conseil de l’Europe (la Cour européenne et le Comité pour la prévention de la torture) ainsi que les normes nationales encadrées par la législation et la jurisprudence. Une analyse critique de ces normes est menée afin de comprendre leurs défauts et de prévenir la commission d’erreurs à l’avenir.La doctrine populaire selon laquelle les détenus conservent tous les droits sauf ceux qui sont incompatibles avec l'emprisonnement est rejetée car elle s’avère peu protectrice du point de vue juridique. En revanche, d’autres axes d’amélioration des clauses limitatives existantes en droit pénitentiaire sont proposés. Il s’agit de la construction de garanties procédurales contre l’abus de limitations non-justifiées et notamment du renforcement du rôle du contrôle judiciaire ainsi que de l’application du principe de proportionnalité. L’application légitime de ce principe est plus complexe en monde libre qu’en milieu fermé ; elle requiert sans doute non de s’appuyer non seulement sur des arguments juridiques et logiques, mais encore sur des arguments empiriquesThis thesis focuses on the limits of the State’s power in restricting prisoners’ rights. In order to explore this issue, the author identifies the specificities of these limitations which can influence the justification of their use. Due to these specificities, it is easier to justify the limitations of prisoners’ rights than to those of free citizens. It is on this basis that the thesis suggests to improve legal barriers against the unjustified limitations of prisoners' rights.The author develops an original theory pertaining to the legal nature of limitations applied to prisoners' rights. Furthermore, he describes the standards developed by the UN and the Council of Europe (the European Court and the Committee for the Prevention of Torture) which apply to these limitations, as well as the relevant national standards defined by legislations and/or jurisprudence. A critical analysis of these standards is conducted with the purpose of understanding their flaws and preventing them in the future.The popular view according to which detainees retain all their rights, with the sole exception of those that are incompatible with imprisonment is rejected as not providing sufficient legal protection. This thesis presents alternative ideas for improving restrictive prison law clauses. Particular attention is paid to the construction of procedural safeguards against the abuse of unjustified limitations, including strengthening the role of judicial review and the principle of proportionality. In a security context, it is more complicated to apply this principle legitimately as it might require not only legal and logical arguments, but also empirical data
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Adams, Joseph Q. "Retribution Requires Rehabilitation." Digital Archive @ GSU, 2008. http://digitalarchive.gsu.edu/philosophy_theses/35.
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Herbert Morris argues in his influential retributivist paper, "Persons and Punishment," that criminals deserve punishment because their actions represent an unfair distribution of benefits and burdens in society. The proper distribution of benefits and burdens is important, in part, to restore law abiding citizens’ confidence that others will follow the law. In this paper I show that Morris's argument for why criminals deserve punishment morally requires us to set up an institution of rehabilitation in addition to the institution of punishment. Such an institution is morally required because neither pure punishment systems nor punishment systems that incorporate quasi-rehabilitative aspects have ever worked to uphold the necessary confidence that Morris tells us law abiding citizens must have in order to protect the social order. Moreover, we cannot abandon Morris's appeal to the duty to maintain social order without also abandoning a plausibly Morrisian framework.
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Clarke, Dean Hatherley. "Justifications : Marx, justice, ethics and punishment." Thesis, University of Sheffield, 1985. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.390932.
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Chehata, Hanan. "A penological critique of Christian and Islamic justifications of capital punishment." Thesis, Brunel University, 2006. http://bura.brunel.ac.uk/handle/2438/5162.
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This thesis provides a critique of the penology of capital punishment from the perspectives of Christianity and Islam. In order to ascertain the basic theological approaches of both religions towards capital punishment, Chapters 2 and 3 examine the core Scriptural texts, laws and traditions of both Christianity and Islam respectively. These chapters reveal how different methods of Scriptural interpretation and differences in religious practice, within each faith, have led to divergent opinions regarding the legitimacy and acceptability of capital punishment. Chapters 4 and 5 examine two of the primary penological justifications for the death penalty; retributivism and deterrence. It is demonstrated how they can be used, within secular and religious frameworks, to both condemn and condone the use of the punishment. Chapter 6 considers a variety of contemporary methods used to execute offenders and asks whether the methods used have any effect on the religious acceptance or rejection of the penalty. Finally, Chapter 7 presents one of the most controversial aspects of the contemporary death penalty debate, namely the unequal application of the penalty as it pertains particularly to black offenders, indigent offenders and mentally ill offenders. This serious criticism of the death penalty is considered first in general secular terms and then in light of the teachings of both religions and it is asked how the religious arguments in favour of the death penalty stand in light of such serious violations of human rights and justice. The thesis concludes with the assertion that, while a strong case can be made from within both religions for the use of capital punishment in principle, in practice given current practices of criminal justice systems worldwide there is a strong case to be made, if not for abolition, then at least for a drastic curtailment of the practice and a long-term moratorium on capital punishment on religious grounds.
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Kleuskens, Shanisse. "Legitimating the “Fiasco”: Canadian State Justifications of CORCAN Prison Labour." Thesis, Université d'Ottawa / University of Ottawa, 2015. http://hdl.handle.net/10393/32960.
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Since Kingston Penitentiary’s opening in 1835, prison labour has been an integral part of Canada’s penal history. With purported goals such as deterrence, rehabilitation, reintegration, and providing sustenance to the state, the practice of coercing or forcing a prisoner to work while serving a sentence of incarceration was further embedded in the penal landscape in 1980 with the inception of CORCAN, the Correctional Service of Canada’s prison labour program. Despite critiques of the prison as “a fiasco in terms of its own purposes” (Mathiesen, 2006, p. 141), prison labour continues as a mechanism of the state’s penal apparatus. Drawing on political economy of punishment and penal abolitionism literature, this study reveals and disrupts official discourses used to justify and perpetuate this modern form of slavery in Canada. Through a content analysis of 33 Solicitor General of Canada and CORCAN annual reports, I demonstrate how CORCAN’s prison labour program is legitimated as a “positive reform” (Mathiesen, 1974, p. 202) of Canada’s penal system, beneficial to the reintegration of prisoners into society, communities, and the needs of the Canadian state and economy. Underneath this benevolent mask such representations are found to reproduce neoliberal capitalism as the hegemonic form of economic organization, construing prisoners and prison labour as solutions to the gaps and shifts in the national economy and labour market. After outlining these contributions, I suggest ways that future research can reveal and discredit penal ‘solutions’ such as prison labour to eradicate the penal system as a means to address the harms inherent in our social and economic systems.
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Alsoufi, Rana Hajaj Ahmaid. "Strategies for the justifications of Ḥudūd Allah and their punishments in the Islamic tradition." Thesis, University of Edinburgh, 2012. http://hdl.handle.net/1842/7989.
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The punishments of Islamic criminal law and in particular, the notoriously severe ḥadd punishments, were never systematically justified in classical Islamic jurisprudence (fiqh). However, the fiqh tradition is ripe with debates about ḥadd punishments, and theories of justification, while not fully spelt out, are often implied in the writings of Muslim jurists. In Part I of this thesis, three fiqh strategies for the justification of ḥadd punishments are described and critically evaluated: one that seeks to characterize the ḥadd punishments as divinely ordained, immutable “rights of God” (ch. 1), one that describes the purpose of ḥadd punishments as serving general as well as individual prevention (ch. 2), and one that stresses that to suffer ḥadd is an expiatory act that amends for sins and thus ensures salvation in the Hereafter (ch. 3). The Sunnī legal schools (madhāhib), salient representatives of which are studied in this dissertation, controversially discussed the meaning and purpose of ḥadd punishments in the context of each of these three fiqh discourses. Part II of this thesis proceeds to describe and discuss contemporary Muslim debates about the applicability and justifiability of ḥadd punishments today. While only few Islamic regimes currently implement ḥadd, the topic has a large symbolical importance because it exemplifies the struggle of Muslim thinkers to reconcile Islam with modernity. In a first step, this thesis aims to clarify to what extent contemporary positions echo, attack or simply sidestep classical fiqh positions: how, in other words, the present is connected to the traditional fiqh framework of the past (ch. 4). In a concluding chapter, a number of salient topics of debate in the contemporary ḥadd controversy are analysed within the cultural and political contexts in which they are located (ch. 5). While classical legal doctrines about ḥadd punishments, despite the controversies between the madhāhib, tend to be rigid, emphasizing the immutable character of the criminal law norms found in the Sharīʻah, the periodic calls among contemporary thinkers for the implementation of ḥadd are, it is suggested, largely driven by political agendas.
Books on the topic "Justification of punishment"
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Mardini, Souran. Justification of reward and punishment. Istanbul, Turkey: Murat Center, 2014.
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Asbāb al-ibāḥah wa-asbāb takhfīf al-ʻiqāb fī al-qānūnayn al-Lībī wa-al-Maghribī. Miṣr: Dār al-Kutub al-Qānūnīyah, 2010.
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Eldridge, W. L. The justification of punishment: Resolving the antinomy. 1993.
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Duff, R. A. Punishment. Edited by Hugh LaFollette. Oxford University Press, 2009. http://dx.doi.org/10.1093/oxfordhb/9780199284238.003.0014.
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This article's central question is: ‘What can justify a system of criminal punishment?’ That question is familiar, but merits clarification. The article focuses on criminal punishment imposed by criminal courts for criminal offences. So narrow a focus, though typical of penal philosophy, requires justification. First, it ignores other kinds of punishment, formal and informal, imposed by other agencies: by institutions or professions, in the family. What justifies this focus is that criminal punishment is distinctive in involving the state's exercise of its dominant coercive power over its citizens, and thus raises the distinctive question of what penal powers (if any) the state should have, and how they should be exercised. Secondly, it ignores other aspects of criminal justice, and the complex processes from which punishment flows — the investigation of crime, the criminal procedure of trial and conviction.
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Bedau, Hugo Adam. Capital Punishment. Edited by Hugh LaFollette. Oxford University Press, 2009. http://dx.doi.org/10.1093/oxfordhb/9780199284238.003.0028.
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Understanding and justifying capital punishment need to proceed from within a larger framework that can be and often is left implicit. That framework consists of one's views about punishment generally; only within that context can one adequately face the narrower issues peculiar to understanding and justifying the death penalty. If punishment as such could not be justified, then a fortiori neither could the death penalty. If punishment generally serves certain purposes or functions, then presumably so does the death penalty. Not so conversely, however. The death penalty might not be justified, but that need not put in doubt the justification of punishment in general. The discussion in this article proceeds on two assumptions. First, the general features defining punishment within a legal system will be taken for granted. Secondly, the function and purposes of the death penalty will be assumed to be those shared by punishments generally.
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Dagger, Richard. Justifying Punishment. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780199388837.003.0006.
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Chapter 5 is the first of the three chapters of Playing Fair that make the case for fair play as the basis for a compelling justification of legal punishment. As it was with the discussion of political obligation, so it is necessary to begin this part of the book by clarifying key terms and confronting fundamental challenges to the enterprise of justifying punishment itself. The chapter thus begins with the questions of what is punishment and what are its proper aims. The latter question is usually answered by reference to retributivism and/or deterrence, and I try to place fair-play theory in this context by linking it to communicative theories of punishment while distinguishing it from Jean Hampton’s expressive version of retributivism. The chapter concludes with responses to those who would, for various reasons, abolish punishment altogether.
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Wellman, Christopher. Rights Forfeiture and Punishment. Oxford University Press, 2017. http://dx.doi.org/10.1093/acprof:oso/9780190274764.001.0001.
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In Rights Forfeiture and Punishment, Christopher Heath Wellman argues that those of us who seek to defend the moral permissibility of punishment should shift our focus from general justifying aims to moral side constraints. Given that persons typically have a right not to be subjected to the hard treatment of punishment, it would seem natural to conclude that the permissibility of punishment is centrally a question of rights. Despite this, the vast majority of theorists working on punishment focus instead on important aims, such as achieving retributive justice, deterring crime, restoring victims, or expressing society’s core values. The book argues that these aims may well explain why we should want a properly constructed system of punishment, but none shows why it would be permissible to institute one. Only a rights-based analysis will suffice, because the type of justification we seek for punishment must demonstrate that punishment is permissible, and it would be permissible just in case it violated no one’s rights. On this book’s view, punishment is permissible only when the wrongdoer has forfeited her right against punishment by culpably violating (or at least attempting to violate) the rights of others. After defending rights forfeiture theory against the standard objections, the book explains this theory’s implications for a number of core issues in criminal law, including the authority of the state, international criminal law, the proper scope of the criminal law and the tort/crime distinction, procedural rights, and the justification of mala prohibita.
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Dagger, Richard. Playing Fair with Punishment. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780199388837.003.0007.
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Chapter 6 turns from the explication and defense of legal punishment as a general practice to the task of developing and defending the fair-play theory of punishment in particular. As developed by Herbert Morris and others, the theory holds that punishment is justified, ceteris paribus, because law breakers try to enjoy the benefits of a legal system without bearing its burdens, thereby taking unfair advantage of those who obey the laws. I elaborate this account by drawing out the connection between legal systems and cooperative practices, arguing that the analogy between fair play in a game and fair play in a polity, or legal system, is not simply misguided. I then respond to five serious objections that critics have leveled against fair play as an account of punishment. I conclude by considering the gentler complaint that fair play is too narrow to provide a satisfactory justification for legal punishment.
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Punishment: The Supposed Justifications. Blackwell Publishers, 1990.
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Stahn, Carsten. Justice as Message. Oxford University Press, 2020. http://dx.doi.org/10.1093/oso/9780198864189.001.0001.
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International criminal justice is a form of social performance. It relies on messages, speech acts, and performatives practices in order to convey social meaning. Major criminal proceedings, such as Nuremberg or Tokyo and other post-Second World War trials have been branded as ‘spectacles of didactic legality’. However, the expressive and the communicative functions of law have been sidelined in institutional discourse and legal practice. The concept of expressivism is referred to in justifications of punishment or sentencing rationales. It appears as reference in scholarly treatises, but it has remained crucially underdeveloped. This book is an attempt to remedy this gap. It shows that expression and communication are not only an inherent part of the punitive functions of international criminal justice but represented in a whole spectrum of practices: norm expression and diffusion, institutional actions, performative aspects of criminal procedures, and repair of harm. It argues that expressivism is not a classical justification of justice or punishment on its own but rather a means to understand its aspirations and limitations, to explain how justice is produced, and to ground punishment rationales.
Book chapters on the topic "Justification of punishment"
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Bayles, Michael D. "Justification of Punishment." In Hart’s Legal Philosophy, 253–92. Dordrecht: Springer Netherlands, 1992. http://dx.doi.org/10.1007/978-94-015-8086-1_10.
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Reid, Lynette. "Winch on Punishment: Contested Concepts, Justification, and Primitive Reactions." In Nordic Wittgenstein Studies, 57–83. Cham: Springer International Publishing, 2020. http://dx.doi.org/10.1007/978-3-030-40742-1_5.
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Obara-Minnitt, Mika. "An Honourable Death? Governmental Justification for Capital Punishment 1980–1989." In Japanese Moratorium on the Death Penalty, 135–61. New York: Palgrave Macmillan US, 2016. http://dx.doi.org/10.1057/978-1-137-55822-0_4.
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Obara-Minnitt, Mika. "By Popular Demand: Governmental Justification for Capital Punishment 1993–2009." In Japanese Moratorium on the Death Penalty, 177–99. New York: Palgrave Macmillan US, 2016. http://dx.doi.org/10.1057/978-1-137-55822-0_6.
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Obara-Minnitt, Mika. "Governmental Justification for Capital Punishment and the De Facto Moratorium Periods Reconsidered." In Japanese Moratorium on the Death Penalty, 79–133. New York: Palgrave Macmillan US, 2016. http://dx.doi.org/10.1057/978-1-137-55822-0_3.
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Obara-Minnitt, Mika. "Conclusions: New Light in Old Rooms. Governmental Justification for Capital Punishment in Japan Reconsidered." In Japanese Moratorium on the Death Penalty, 221–32. New York: Palgrave Macmillan US, 2016. http://dx.doi.org/10.1057/978-1-137-55822-0_8.
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Smith, Paul. "Justifications of Punishment." In Moral and Political Philosophy, 19–32. London: Palgrave Macmillan UK, 2008. http://dx.doi.org/10.1007/978-0-230-59394-7_2.
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Obara-Minnitt, Mika. "Conscience or Chaos?: Governmental Justification for Capital Punishment During the De Facto Moratorium Period 1989–1993." In Japanese Moratorium on the Death Penalty, 163–75. New York: Palgrave Macmillan US, 2016. http://dx.doi.org/10.1057/978-1-137-55822-0_5.
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Obara-Minnitt, Mika. "Democracy Inaction: Governmental Justification for Capital Punishment During the De Facto Moratorium Periods (2009–2010 and 2010–2012)." In Japanese Moratorium on the Death Penalty, 201–20. New York: Palgrave Macmillan US, 2016. http://dx.doi.org/10.1057/978-1-137-55822-0_7.
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Hertzberg, Lars. "“What Justifies the Justifications?” Winch on Punishment and Justice." In Nordic Wittgenstein Studies, 41–55. Cham: Springer International Publishing, 2020. http://dx.doi.org/10.1007/978-3-030-40742-1_4.
Full textConference papers on the topic "Justification of punishment"
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Turanjanin, Veljko. "UNFORESEEABILITY AND ABUSE OF CRIMINAL LAW DURING THE COVID-19 PANDEMIC IN SERBIA." In EU 2021 – The future of the EU in and after the pandemic. Faculty of Law, Josip Juraj Strossmayer University of Osijek, 2021. http://dx.doi.org/10.25234/eclic/18305.
Full textAbstract:
The author deals with the problem of criminal measures and sanctions in the legislation of the Republic of Serbia during the Covid-19 pandemic. The executive branch of the government declared a state of emergency in the Republic of Serbia in March 2020. At the same time the so-called Crisis Headquarter was established with the authority to impose measures of criminal-legal nature. During the two-month state of emergency, through the Crisis Headquarter, the executive branch of the government was changing criminal laws and sanctions at an almost daily basis. It is debatable whether such laws meet the rule of law and the European Court of Human Rights standards. Many citizens failed to adapt their behavior to the imposed measures. On the one hand, the courts have fallen into the trap of double punishment, both for a crime and for a misdemeanor. On the other hand, justifications of the courts’ decisions are also questionable, especially those containing references to statements made by members of the crisis team through the media. Furthermore, the Constitutional Court didn’t rule on any of the numerous requests for constitutional review, but in September it came out with the view that since the state of emergency was over, its decision was unnecessary. The paper is comprised of several units. In the first place, the author explains the process of legal changes by analyzing all the laws and rules that were passed by the end of 2020, as well as data related to the punishment of residents whose behavior was not in accordance with existing legal solutions. Bearing in mind the standards of the rule of law and the European Court of Human Rights, the author then explains that the measures implemented by the Serbian authorities do not meet the basic required criteria, primarily the foreseeability of the law, as well as that the laws were abused for the purpose of the election campaign. The special attention is paid to curfews and the complete ban on leaving homes for senior citizens well as ban of contacting with the family members, and then the lockdown of the rest of the population. The actions taken by the authorities during the epidemic resulted in violation of human rights of their citizens, and experience shows that the only court that citizens will be able to turn to will be the European Court of Human Rights. The author believes that with this understanding of the law and respect for its own citizens, the European Union can only be a distant idea.