Punishment and Freedom
This book sets out a new understanding of the penal law of a liberal legal order. The prevalent view today is that the penal law is best understood from the standpoint of a moral theory concerning when it is fair to blame and censure an individual character for engaging in proscribed conduct. By contrast, this book argues that the penal law is best understood by a political and constitutional theory about when it is permissible for the state to restrain and confine a free agent. The book's thesis is that penal action by public officials is permissible force rather than wrongful violence only if it could be accepted by the agent as being consistent with its freedom. There are, however, different conceptions of freedom, and each informs a theoretical paradigm of penal justice generating distinctive constraints on state coercion. Although this plurality of paradigms creates an appearance of fragmentation and contradiction in the law, the author argues that the penal law forms a complex whole uniting the constraints on punishment flowing from each paradigm.
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Accordingly acquitted action actor actus reus agent’s another’s argue authority blameworthy breach Canadian Criminal Code capacity for free character theory choose claim coercion committed conception consent crime criminal desert criminal law criminal liability culpable mind death defendant defendant’s defensive force deserve distinction Duff duty exculpation exculpatory external formal agency formalist paradigm framework free choice freedom harm hence human Ibid imputable innocent intention interference involuntary judicial punishment justified kill law’s liberty manifested means mens rea mental mistake Model Penal Code murder Nathan negate negligence normative one’s outcome Oxford penal force penal justice penal law permission person positive law pre-emption principle proscribed public reason public welfare offences real autonomy recklessness requirement respect responsibility restorative justice result retributivism right denial right infringement risk self-authored ends self-defence someone state’s strict liability subjective fault theory of justification thinking Agent threat tion transgression valid victim violation wrong wrongdoer wrongdoing