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Univ. of San Diego School of Law

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Wednesday, June 26, 2013

Harel on Punishment and the State

Alon Harel (Hebrew University of Jerusalem - Faculty of Law) has posted Punishment and the State on SSRN. Here is the abstract:

Criminal sanctions are typically inflicted by the state and by the state alone. This chapter investigates (by using tools of political philosophy) the normative rationales for the exclusive control of the state over the infliction of criminal sanctions and, further, it explores whether the state has not only an exclusive right to punish but also a duty to do so. 

Criminal law sanctions require the enactment of criminal law norms, the issuing of particular judgments by courts and, last, the physical infliction of criminal sanctions. All those functions are currently controlled by the state. Yet, some legal systems were almost entirely private and contemporary theorists challenge the public control over some aspects concerning the infliction of criminal punishment. Most significantly some recent legal reforms involve privatization of central components of the criminal law system: private prisons, private enforcement mechanisms, shame penalties etc. This chapter examines whether it is a desirable (or even a necessary) feature of criminal punishment that it be inflicted by the state and, if so, why? Could the infliction of punishment be, at least in principle, privatized and, if it could, would it be desirable? 

To do so, the chapter differentiates among three types of justifications for the role of the state in the infliction of punishment: instrumentalist justifications, normative preconditions justifications and state-centered justifications. It provides examples for each type and it shows how classical theories of punishment such as Locke, Nozick and Rousseau fall into each one of these categories. The chapter also investigates whether the state has sometimes a duty rather than merely a right to punish.

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