A Human Right not to be Punished? Punishment as Derogation of Rights
- J. D. Shepherd
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In this essay, I apply international human rights theory to the domestic discussion of criminalization. The essay takes as its starting point the “right not to be punished” that Douglas Husak posited in his recent book Overcriminalization. By reviewing international human rights norms, I take up Husak’s challenge to imbue this right with further normative content. This process reveals additional relationships between the criminal law and human rights theory, and I discuss one analogy: the derogation by states of an individual’s human rights under specified conditions has certain similarities to the punishment by states of an individual who holds a right not to be punished. Along the way, I highlight the normative implications of defining a human right not to be punished under both generalist and specificationist perspectives on moral rights. Noting the similarities as well as the differences in the concepts of punishment and derogation, this essay aims to contribute to the exchange between theories of human rights and the criminal law.
- Arenella, P (1983) Rethinking the functions of criminal procedure: The Warren and Burger courts’ competing ideologies. Georgetown Law Journal 72: pp. 185-248
- Bagaric, M (1999) In defence of a utilitarian theory of punishment: Punishing the innocent and the compatibility of utilitarianism and rights. Australian Journal of Legal Philosophy 24: pp. 95-144
- Besson, S, Tasioulas, J Introduction. In: Besson, S, Tasioulas, J eds. (2011) The philosophy of international law. Oxford University Press, Oxford, pp. 1-27
- Husak, D (2008) Overcriminalization: The limits of the criminal law. Oxford University Press, New York
- Husak, D (2011) Reservations about Overcriminalization. New Criminal Law Review 14: pp. 97-107
- Karimova, T. (2010). Derogation from human rights treaties in situations of emergency. Retrieved from http://www.adh-geneva.ch/RULAC/derogation_from_human_rights_treaties_in_situations_of_emergency.php.
- Moore, M (2009) A tale of two theories. Criminal Justice Ethics 28: pp. 27-48 CrossRef
- Oberdiek, J (2004) Lost in moral space: On the infringing/violating distinction and its place in the theory of rights. Law and Philosophy 23: pp. 325-346
- Oberdiek, J (2008) Specifying rights out of necessity. Oxford Journal of Legal Studies 28: pp. 127-146 CrossRef
- Packer, HL (1968) The limits of the criminal sanction. Stanford University Press, Stanford
- Parents Involved in Community Schools v. Seattle School Dist. No. 1. (2007). 551 U.S. 701.
- Rawls, J (1999) A theory of justice. Belknap Press, Cambridge, MA
- Ristroph, A (2009) Respect and resistance in punishment theory. California Law Review 97: pp. 601-632
- United Nations Economic and Social Council. (1985). Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights. U.N. Doc. E/CN.4/1985/4, Annex (1985). Retrieved from http://www1.umn.edu/humanrts/instree/siracusaprinciples.html.
- United Nations General Assembly. (1948). Universal Declaration of Human Rights. G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948). Retrieved from http://www1.umn.edu/humanrts/instree/b1udhr.htm.
- United Nations General Assembly. (1966). International Covenant on Civil and Political Rights. G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force. Retrieved March 23, 1976, from http://www1.umn.edu/humanrts/instree/b3ccpr.htm.
- United Nations Human Rights Committee. (1982). General Comment 8, Article 9 (Sixteenth session, 1982). Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 8 (1994). Retrieved from http://www1.umn.edu/humanrts/gencomm/hrcom8.htm.
- United Nations Human Rights Committee. (1992). General Comment 21, Article 10 (Forty-fourth session, 1992). Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 33 (1994). Retrieved from http://www1.umn.edu/humanrts/gencomm/hrcom21.htm.
- United Nations Human Rights Committee. (2001). General Comment No. 29, Art. 4, State of Emergency. U.N. Doc. CCPR/C/21/Rev.1/Add.11 (31 August 2001). Retrieved from http://www1.umn.edu/humanrts/gencomm/hrc29.html.
- A Human Right not to be Punished? Punishment as Derogation of Rights
Criminal Law and Philosophy
Volume 6, Issue 1 , pp 31-45
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- Springer Netherlands
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- Human rights
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- J. D. Shepherd (1)
- Author Affiliations
- 1. Juris Doctor, 2011, University of Minnesota Law School, Minneapolis, MN, USA