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April 25, 2008

Deep weekend thoughts from SSRN

What looks like a deep and interesting paper for weekend reading can be found here via SSRN.  The paper is titled "Facing the Consequences: The Abolitionist Challenge," and here is the abstract:

I argue that standard consequentialist considerations offered in support of punishment make for a weaker case than is usually assumed.  This is because consequentialist arguments for punishment rely on an overly broad conception of punishment that overlooks some of punishment's essential characteristics.  I argue in favor of a narrower conception that highlights the possibility of substantive, non-punitive alternatives to punishment capable of securing many of the same good consequences as punishment. In light of this possibility, I argue, Abolitionism, the view that punishment is unjustified, poses a serious challenge to consequentialist justifications of punishment.

April 25, 2008 at 06:16 PM | Permalink

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Comments

Got to love the jargon...

Posted by: | Apr 25, 2008 8:25:35 PM

I skimmed it. Interesting. Too deep for me this weekend, though. My weekend reading? Advanced criminal procedure and civil rights litigation. Finals here I come...

Posted by: Alec | Apr 25, 2008 8:55:58 PM

8:25:35, the jargon is necessary and not too terribly opaque.

There are a few standard reasons offered to justify criminal punishment, and people discussing the justifications for criminal punishment often find it useful to have a shorthand for those reasons. It saves words, and it helps people who communicate with each other to know that they're talking about the same thing.

"Consequentialism" is a fairly basic term in criminal law. It's discussed in every or most (as far as I know, anyway) introductory criminal law classes in law school.

I'm not sure if "Abolitionism" is as widely used, but again, the author will probably refer several times throughout the piece to the view that punishment is unjustified, and as such it's helpful to have a single, easily understandable word to denote that view.

Seriously, once you learn 5 or 6 words that aren't normally used outside of law school, much of this stuff is quite accessible.

On the other hand, I haven't read the full paper, and I offer no defense of jargon beyond those 2 words.

Posted by: | Apr 25, 2008 8:59:44 PM

More fundamentally, What is Crime? (a fully-baked book report)

Posted by: George | Apr 25, 2008 10:59:50 PM

I gave this paper a quick read. To paraphrase the "Car Talk" guys on NPR , "Now I've wasted another perfectly good hour reading a paper on SSRN." With all due respect, this is an incredibly facile and unconvicing argument. The author's "abolitionist" thesis comes to this: we can continue to engage in all the standard penal practices that we currently employ (e.g., coercively enforced incarceration, probation, and restitution) in order to protect ourselves and foster offenders' rehabilitation, but none of these things will count as "punishment" provided only that we don't deliberately aim to inflict harm the recipient, despite the fact that we know such practices will be painful in any event. I simply don't see how this poses any challenge to consequentialist justifications of punishment, much less a "serious" one.

Posted by: anon | Apr 26, 2008 10:28:46 AM

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