Friday, June 14, 2019
Daniel Maggen has posted Conventions and Convictions: A Valuative Theory of Punishment (Utah Law Review, Forthcoming) on SSRN. Here is the abstract:
Offering an original interpretation of Immanuel Kant’s Critique of Judgment, the Article argues that criminal law should be understood as a device in the service of the interest that individuals have in affirming their personhood, an interest that is promoted by the creation and communication of values. The Article posits that criminal law serves this purpose by safeguarding the conditions that facilitate valuative communication. It does so by (1) cataloging the values shared the community; (2) outlining the ways in which they are commonly interpreted; and (3) penalty responding to forms of behavior that hinder communication.
The Article concludes by examining the prohibition of abortion in light of the values it purports to protect, distinguishing between illegitimate prohibitions that are informed by protection of values as such and legitimate prohibitions that aim to support valuation. The Article contends that even if under certain circumstances an affront to protected values could justify the prohibition of abortion, the reasons for prohibition will commonly fail to justify the penal condemnation of those who perform or undergo it.