A Human Right not to be Punished? Punishment as Derogation of Rights
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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.
KeywordsCriminalization Human rights Punishment Derogation General rights Specificationism
Special thanks to Antony Duff for introducing me to the field and encouraging me to pursue this project. For welcoming me into the discussion of human rights, dignity, and the criminal law, I would like to thank the organizers and participants of the April 2011 Human Dignity and the Criminal Law workshop at the University of Minnesota Law School. I also want to thank Barbara Frey and the participants of the Fall 2010 Human Rights Advocacy course workshop for useful critique during the early development of this idea. And thanks always to Jennifer Neal Heuss for constant and tremendous support.
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