Abstract
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.
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Notes
Notably, “[t]he burden of justifying a limitation upon a right guaranteed under the Covenant lies with the state” (United Nations Economic and Social Council 1985, ¶ 12).
I acknowledge the criticism that international law may be less than “law” in some respects. While I do not have the space to defend my assumption that international human rights law is a legitimate legal regime, the interested reader may refer to the arguments of Besson and Tasioulas (2011).
All references to “articles” or roman numerals in the text refer to this Covenant.
In this essay, I lack the space to develop these terms in all their complexity and only refer to their essential qualities mentioned here. Packer provides a fuller treatment of these two aspects of guilt (1968).
Notably, the ban of slavery and forced labour specifically exempts forced labour imposed as a lawful punishment (article VIII(3)(b)).
I consider separately the distinction between an unconditional right and a conditional right as it relates to the specificationism debate in Part II. C below.
Note that the ICCPR requires compensation for wrongful convictions not arising from the fault of the offender, further supporting my claim that actual guilt as well as legal guilt is required by human rights norms (article XIV(6)).
Note, however, that Oberdiek himself found an argument for at least a “reason” if not a “duty” to fulfill the moral residue requirement ex post in the hiker’s case (2008, pp. 143–44). I, however, argue that the moral residue is no residual or remainder at all, but rather a condition precedent—the right’s specification.
The temporariness requirement strictly applied would eliminate permanent punishments such as the death penalty and life imprisonment without parole.
Query whether this critique is equally valid under some consequentialist arguments allowing for punishing innocents for broader societal gains (Bagaric, 1999).
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Acknowledgments
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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Shepherd, J.D. A Human Right not to be Punished? Punishment as Derogation of Rights. Criminal Law, Philosophy 6, 31–45 (2012). https://doi.org/10.1007/s11572-011-9130-0
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DOI: https://doi.org/10.1007/s11572-011-9130-0