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November 22, 2015

"Hegel and the Justification of Real-World Penal Sanctions"

The title of this post is the title of this notable new philosophical paper authored by Antje Du Bois-Pedain available via SSRN.  Here is the abstract:

This paper 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.

November 22, 2015 at 02:39 PM | Permalink

Comments

Without the suppression of unwanted behavior by the criminal law, one is spending all one's time on security and survival. We are living again in the style before the Stone Age, a pretty advanced, mature culture. Imagine the entire world run like a Fallujah. That is the great value of the rule of law. I hope the lawyer one day starts to offer it.

Punishment is defined as a consequence that decreases the likelihood of a behavior. If something increases its frequency, it is called a reward.

It is the sole tool of the lawyer. So he should try to learn a little about it. Most judges could not pass a behavioral analysis quiz from a Psychology 101 course. It has a lot of technical aspects, such as frequency, regularity or randomness, severity, timing after a behavior. The most long lasting effects come from immediate, random, frequent punishments. If one punishes every behavior, and stops, the effect is short lasting. If one punishes a fraction of behaviors with an irregular, irregular schedule, that has the longest lasting effect since one does not know when punishment will take place. A lot of procedure and decision making is involved, and it can get expensive. Daniel may have a comment about punishment.

That being said, I oppose punishment as a purpose of the criminal law. The sole mature, lawful, and productive tool is incapacitation. The most reliable incapacitation is the death penalty. I even see the criminal as a handicapped person. He is missing morality, compassion, future consideration, altruism. Those are never coming, the way a paralyzed person will not walk. In the future, a shot of a virus carrying the missing DNA may be inserted, and replenishing his neurons, may incorporate it. That is 50 year or 100 years away. The wheel chair for the criminal's handicaps is prison. Its structured setting may turn him into a very capable person. I have no objection to making it nice, since I oppose punishment.

I support incapacitation in the form of public self help. There would be weapons training, a duty to carry and to kill all violent criminals on the spot or get a $100 fine.

Posted by: Supremacy Claus | Nov 22, 2015 3:11:06 PM

I have encouraged my criminal friends to report this new lawyer racket to the Corrupt Officials Office of the Department of Justice.

Posted by: Supremacy Claus | Nov 22, 2015 10:03:15 PM

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