Revenge or Justice? The Purpose of Law

Ratio Juris, 2010

There is a vast literature on the meanings of legal penalties. However, we lack a theory that explains them according to the formation of the modern state. Oakeshott's theory can help explain this phenomenon, leading to an attempt of the individual to take over as many powers of the state as possible. Thus, Kant's and Smith's retributivism is the most consistent of all those theories. Nevertheless, the preventive and resocializing theory of Bentham succeeded eventually. But is this a liberal theory? We contrast the explanations of H.L.A. Hart and Frederick Rosen in order to lay the groundwork for a liberal theory of the meaning of legal sanctions.

This paper highlights the nature of our Criminal Justice Administration System that somehow becomes mechanical in its application, resorting to "What Is" than to "What Ought To Be,' further highlighting conflict between the application of law and its Sociological basis.

Theory and Decision, 1974

BRILL eBooks, 2002

Maynooth Philosophical Papers

There is general acceptance that those who break the law must be punished; however, not all agree as to why this is necessary. Some argue punishment is necessary to reform criminals, others to deter criminals, and others because you deserve it, whether punishment reforms or deters. Stripped of metaphors, this paper argues that punishment is retribution, but that a distinction must be made between the definition of punishment as retribution and its justification, if a case is to be made for its moral justification. Thus the most important question the paper raises relates to the justification of punishment as retribution. ________________________________________________________________________ I 1 This is a slightly revised and expanded version of a lecture I gave to the Philosophy Society at NUI Maynooth on ‗The State's Justification of Punishment', on Thursday 20 th November, 2008. I wish to thank the President of the Philosophy Society, Joseph Feely, for the invitation to talk to the Maynooth students' Philosophy Society and the students present at the lecture for their lively engagement and questioning of the issues, both during and after the lecture. I also wish to dedicate this article to the memory of my former teacher and Professor of Philosophy, Professor Matthew O'Donnell, who delivered an insightful public lecture on ‗The Morality of Punishment' to the Maynooth students' Philosophy Society in 1986, if my memory serves me well. Any errors in my analysis are, of course, entirely my own. I would also like to thank Oliver O'Donovan for his critical remarks of an earlier draft of this paper, and which made me clarify further some points made in this final version. 2 Thus J. D. Mabbott's point: ‗Punishment is a corollary not of law but of law-breaking', ‗Punishment', Mind 48 (1939), 152-167 (p. 161). 3 Of course, governments do and could take alternative measures to encourage law-abiding, e.g., they offer inducements, such as tax amnesties, to those who have already broken the law in order to encourage those lawbreakers to conform to existing law without impunity, or governments engage in psychological advertisement campaigns (e.g.-speeding kills‖ with vivid images of those seriously hurt or killed) in order to make people aware of the importance of keeping speed-limits and obeying laws etc. The morality or effectiveness of these measures, however, is not the concern of this article because if you are caught driving over the speed limit, or if you are found not to be paying the requisite amount of tax, after the tax amnesty is over, you are to be punished. The law, then, in the end, needs ‗teeth', so it is believed, in order to ensure conformity, and so, resorts to the threat and actual infliction of punishment, of pain or deprivation of freedom. This is

Rutgers Law Review, 2014

Consider the reaction of Trayvon Martin's family to the jury verdict. They were devastated that George Zimmerman, the defendant, was found not guilty of manslaughter or murder. Whatever the merits of this outcome, what does the Martin family's emotional reaction mean? What does it say about criminal punishment-especially the reasons why we punish? Why did the Martin family want to see George Zimmerman go to jail? And why were-and are-they so upset that he did not? This Article will argue for three points. First, what fuels this kind of outrage is vengeance: the desire to see defendants like George Zimmerman forced to "pay" for the harms that they needlessly and culpably inflict on others. While this point may seem obvious, it isn't. Most people repudiate revenge and therefore the notion that it plays any role in the criminal justice system.