Week 6

PUNISHMENT
REVIEW & BACKGROUND
Finished Unit 1: Principles of Criminal Law Beginning unit 2: Perspectives on Criminal Law & Justice Lectures will supplement readings Goals: o Strong understanding od select theories o Apply theories in a responsible way Understand what you are reading Respect the reading & author Recognize when the theory doesnt fit Not just cramming out brains with stuff o But learning how to be a thinker

Background
Theory as a lens Purpose o Different perspective o New insights Theories are not perfect o Always changing o Wrong to apply theory in a blunt way

Renaissance
Circa 1300 1600 Europe: Not everywhere, equally Cultural movement with developments in multiple areas: art, technology, science, religion New ideas about humanity Move away from divine right Sets stage for enlightenment era o Emergence and flourishing of liberal philosophy

LIBERAL PHILOSOPHY OVERVIEW

Liberty, equality, tolerance, individualism After renaissance Enlightenment: Age of reason o Circa 1600-1800 o Rise of nation state o Colonization of new world Peak of slave trade o Scientific discovery: electricity, gravity o Rise of liberal philosophy

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John Locke
If land is not being used properly, you can take it 1632 1704, England Father of liberalism Separation of church and state Property as a right Emphasis on tolerance and reason (during a time of colonization)

Revolutionary Era
USA Life, liberty, and the pursuit of happiness Declaration of Independence (1776) and Constitution (1787) Europe French revolution o Liberty, Equality, Fraternity o Declaration of the Rights of Man and of the Citizen (1789) Everyone feared their country would be next

Liberal Philosophy
Liberty and equality are great principles in theory o How can they be promoted and protected in reality? Find a balance between order and liberty What are the responsibilities of the citizen? What are the responsibilities of the state? Different answers lead to different ways of punishment

Punishment
Given the high value that liberal philosophers place on liberty, punishment is a hotly debated topic o Purpose o Scope o Justification Two views on Punishment Taking away the liberty of one because (s)he infringed on the liberty of another o Retributive: Immanuel Kant Taking away the liberty of one person to protect the liberty of many and the justice system of a whole o Utilitarian: John Rawls (making an example out of someone)

KANT ON PUNISHMENT Immanuel Kant

1742 1804, Prussia Identified as a German Philosopher Major philosopher, especially in liberalism Second Copernican revolution

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Radical (at the time) views about individual autonomy

Main Argument
Right of Retaliation The only principle, which in regulating a public court can definitely assign both the quality and the quantity of a just penalty (145) For punishment to both stand and serve for justice o It requires equivalency: an eye for an eye (retaliation/retribution) Cannot make an example out of someone (especially an innocent) in the name of greater good

RAWLS ON PUNISHMENT John Rawls

1921 2002, USA Liberal philosopher Famous for Theory of Justice (1971)

Main Argument
Bygones are bygonesonly future consequences are material to present decisions (5) Punishment is justifiable only by reference to the probable consequences of maintaining it as one of the devices of the social order (5) Punishment is Justifiable Only if it serves and promotes the good of society Task of establishing equivalent between suffering and immoral act is improper

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