Justifying Punishment: A Response to Douglas Husak
- 196 Downloads
In ‘Why Criminal Law: A Question of Content?’, Douglas Husak argues that an analysis of the justifiability of the criminal law depends upon an analysis of the justifiability of state punishment. According to Husak, an adequate justification of state punishment both must show why the state is permitted to infringe valuable rights such as the right not to be punished and must respond to two distinct groups of persons who may demand a justification for the imposition of punishment, namely, individuals subjected to punishment and the society asked to support the institution of punishment. In this discussion, I analyse Husak’s account of the right not to be punished with an eye to showing that the parameters of that right do not extend to the cases that would make it controversial. I also consider two other distinct groups of persons who have equal standing to alleged offenders and society to demand justification for the imposition of state punishment, namely, direct victims of crimes and criminal justice officials.
KeywordsCriminal law Douglas Husak Justification State punishment Rights
For very helpful comments, I thank Antony Duff, Adrian Viens, and the participants of the British Academy conference on ‘Why Criminal Law?’ January 2007.
- Carlen, P. (1994). Crime, inequality, and sentencing. In D. Garland & R. A. Duff (Eds.), A reader on punishment. Oxford: Oxford University Press.Google Scholar
- Duff, A. (1998). Desert and penance. In A. Ashworth & A. von Hirsch (Eds.), Principled sentencing: Readings on theory and policy (2nd ed.). Oxford: Hart Publishing.Google Scholar
- Husak, D. (2003). Is the criminal law important? The Ohio State Journal of Criminal Law, 1, 261–271.Google Scholar
- Husak, D. (2007). Overcriminalisation. Oxford: Oxford University Press.Google Scholar