Abstract
Many years ago, Maine wrote that ‘All theories on the subject of Punishment have more or less broken down; and we are at sea as to first principles.’1 What causes a theory to break down? Why should a society be all at sea as to the basic principles of a central and morally crucial institution? How did this situation come about? Is it symptomatic at the level of ideas of some deeper ailment in the social body? The impetus to these questions came out of the development in philosophical thinking about punishment in the late 1970s and early 1980s when it had become clear that the existing theoretical and practical consensus around punishment was no longer sustainable. In penological thinking, the belief in rehabilitation and the benign potential in punishment had given way to cynicism and disillusion, while, paralleling this in philosophical discussion, there was an increasing rejection of both the philosophy of treatment and what came to be seen as the empty nostrums of utilitarian theory. When utilitarianism was not being amoral in vindicating individual punishment for the greater good, it was being positively immoral in sacrificing individual justice to social well-being. The debate about punishing the innocent had rumbled on for decades without setting anvwhere.2
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References
Speeches, p. 123, quoted in L. Radzinowicz and J. Turner, The Modern Approach to Criminal Law (London, 1945), p.48.
A. Von Hirsch, Doing Justice: The Choice of Punishment (New York, 1976), p.xxxiv; see below, Chapter IX.
See, for example, J.G. Murphy, Retribution, Justice and Therapy (Dordrecht, 1979), pp. 77–147.
A.E. Bottoms and R. Preston, The Coming Penal Crisis (Edinburgh, 1980).
From F. Neumann and O. Kircheimer, Social Democracy and the Rule of Law (London, 1987), p.70.
M. Foucault, Discipline and Punish (Harmondsworth, 1977).
E. Pashukanis, Law and Marxism: a General Theory (London, 1978).
E. Pashukanis, See also Selected Writings (ed. P. Beirne and R. Sharlet) (London, 1980).
F. Neumann, The Rule of Law (Leamington Spa, 1986)
(with O. Kircheimer) Social Democracy and the Rule of Law (London, 1987).
See also the earlier collection of his essays in The Democratic and the Authoritarian State (New York, 1964), and G. Lukacs, History and Class Consciousness (London, 1968) pp. 83–110.
See for example B. Fine, Democracy and the Rule of Law (London, 1984) pp. 189–203, and D. Garland, Foucault’s ‘Discipline and Punish: An Exposition and Critique’ (1987) American Bar Foundation Research Journal, 847.
See for example B. Fine, Democracy and the Rule of Law (London, 1984), pp.98–99: ‘How is one to apply fixed laws to particular individuals?’
See for example B. Fine, Democracy and the Rule of Law (London, 1984), pp.194: ‘How is one to apply fixed laws to particular individuals?’
This statement and what immediately follows draws upon but only gestures at an important debate within the philosophy of science and Marxism on the nature of science, ideology and Marx’s method. Main works include T. Benton, The Rise and Fall of Structural Marxism (London, 1984);
R. Keat and J. Urry, Social Theory as Science (London, 1975);
R. Bhaskar, A Realist Theory of Science (Leeds, 1975)
R. Bhaskar, The Possibility of Naturalism (Brighton, 1979), esp. pp.83–91;
D. Sayer, Marx’s Method (Brighton, 1979).
For a recent overview, see W. Outhwaite, New Philosophies of Social Science (London, 1987).
For a recent overview, see W. Outhwaite, New Philosophies of Social Science (London, 1987).
For a recent overview, see W. Outhwaite, New Philosophies of Social Science (London, 1987). p.233.
E. Pashukanis, Law and Marxism: a General Theory (London, 1978), General Theory (op.cit), p.113.
E. Pashukanis, Law and Marxism: a General Theory (London, 1978), General Theory (op.cit), p.114.
E. Pashukanis, Law and Marxism: a General Theory (London, 1978), General Theory (op.cit), p.119. Cf. Neumann, The Rule of Law (op.cit), ch.14. I also use the terms ‘social’ and ‘state’ power interchangeably.
E. Pashukanis, Law and Marxism: a General Theory (London, 1978), General Theory (op.cit), p.115. Cf. Neumann, The Rule of Law (op.cit), ch.14. I also use the terms ‘social’ and ‘state’ power interchangeably.
I represent this movement in a necessarily schematic form which ignores complexities and unevenness in historical development: see, on the developments in penal policy, the compromises identified by Garland in his Punishment and Welfare (Aldershot, 1985);
in relation to the economic analysis of ‘state monopoly capitalism’ which overstates the development generally, the recent essay by P. Auerbach et al, ‘The Transition from Actually Existing Capitalism’ (1988), New Left Review 170, 61–78. However these cautions do not deny the basic truth of a more developed interventionist role for capitalist states in the twentieth century resulting in a weakening of classical liberal legal forms.
See Neumann’s work in particular, as well as more recent analyses by R. Unger, Law in Modern Society (New York, 1976)
E. Kamenka and A. Tay, ‘Beyond Bourgeois Individualism: the Contemporary Crisis in Law and Legal Ideology’ in E. Kamenka and R. Neale, Feudalism, Capitalism and Beyond (London, 1975).
E. Kamenka and A. Tay, ‘Beyond Bourgeois Individualism: the Contemporary Crisis in Law and Legal Ideology’ in E. Kamenka and R. Neale, Feudalism, Capitalism and Beyond (London, 1975). pp. 129–130.
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© 1991 Kluwer Academic Publishers
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Norrie, A.W. (1991). Law, Ideology and Punishment. In: Law, Ideology and Punishment. Law and Philosophy Library, vol 12. Springer, Dordrecht. https://doi.org/10.1007/978-94-009-0699-0_1
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