Punishment and the State Research Paper

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Criminal sanctions are typically inflicted by the state and by the state alone. This research paper investigates (by using tools of political philosophy) the normative rationales for the exclusive control of the state over the infliction of criminal sanctions, and further, it explores whether the state has not only an exclusive right to punish but also a duty to do so.

Criminal law sanctions require the enactment of criminal law norms, the issuing of particular judgments by courts, and, last, the physical infliction of criminal sanctions. All those functions are currently controlled by the state. Yet some legal systems were almost entirely private and contemporary theorists challenge the public control over some aspects concerning the infliction of criminal punishment. Most significantly, some recent legal reforms involve privatization of central components of the criminal law system: private prisons, private enforcement mechanisms, shame penalties, etc. This research paper examines whether it is a desirable (or even a necessary) feature of criminal punishment that it be inflicted by the state and, if so, why? Could the infliction of punishment be, at least in principle, privatized and, if it could, would it be desirable?

To do so, the paper differentiates among three types of justifications for the role of the state in the infliction of punishment: instrumentalist justifications, normative precondition justifications, and state-centered justifications. It provides examples for each type and it shows how classical theories of punishment such as those provided by Locke, Nozick, and Rousseau fall into each one of these categories. The paper also investigates whether the state has sometimes a duty rather than merely a right to punish.

Introduction

Criminal sanctions are typically inflicted by the state. The criminal law norms that set a maximal sanction or a range of permissible sanctions are enacted by the legislature; state courts determine the sanctions within the boundaries set by the legislature; and last, the state is (typically) in charge of the physical infliction of the sanction, e.g., running the prisons (maintained by public officials). Note that while typically the legislative determination, the judicial determination, and the executive infliction of the sanction are all done by the state, it is possible to differentiate these three dimensions and privatize some of them while maintaining public control of others. The central concern of this research paper is to examine whether it is a desirable (or even a necessary) feature of criminal punishment that it be inflicted by the state and, if so, why? Could the infliction of punishment be, at least in principle, privatized and, if it could, would it be desirable? The paper also investigates whether the state has sometimes a duty rather than merely a right to punish.

This research paper is divided into three main parts. The first Part explains why the relations between punishment and the state raise an important question of policy. This part establishes that the intimate relations between the state and punishment are neither natural nor universal. As a matter of fact, there is currently a trend towards privatizing different dimensions of the criminal process. The second Part differentiates among three types of justifications for the role of the state in the infliction of punishment: instrumentalist justifications, normative precondition justifications, and state-centered justifications. Last, the third Part examines whether the state has not merely an (exclusive) right to inflict criminal punishment but also a (political and/or constitutional) duty to do so and, if so, how such a duty can be justified.

Can The Infliction Of Criminal Punishment Be Privatized?

Some may find the relation between criminal punishment (and the penal process as a whole) on the one hand and the state on the other hand to be natural and self-evident. Law students learn that criminal law is a branch of public law designed to promote the public interest. Public law is contrasted with private law (e.g., contract and tort law) which is designed to promote private interests (Hall 2005, pp. 241–246). Under this view held, most famously, by Blackstone, crimes “affect the whole community, considered as a community in its social aggregate capacity” (Blackstone 1769 4th book, Chap. 1). More fundamentally, the state has, as Max Weber said, monopoly of the legitimate use of physical force (Weber 1946, p. 77). Consequently, all the dimensions of the criminal law and its execution including legislation of criminal prohibitions, the determination of guilt, the size of the sanction, the enforcement system, the prosecution, and the infliction of the criminal sanctions including the maintaining of prisons are public and are governed by public law.

Yet a historical examination reveals that the public nature of these functions is “self-evident” to lawyers only because lawyers “incline to project modern practice backwards” (Langbein 1973, p. 316). Historically, it is known that for a very long time, English law relied on private prosecution (Hay 1984; Friedman 1995, pp. 475–478). As a matter of fact, “private vengeance of the person wronged by a crime” was a primary feature of the administration of criminal justice in early English law (Stephen, 245). This system has been transformed only in the nineteenth century (Kurland and Waters 1959). While the English system was based on private prosecutors, other jurisdictions relied heavily on the private infliction of criminal sanctions. The southern states of the USA had no actual penitentiary and till the second half of the nineteenth century, prisoners were leased out by the state to private entrepreneurs (Lichtenstein 2001 p. 193). Another example of private infliction of sanctions is the rule prevailing in Roman law under which the person who committed theft and was caught in the act was given up as a slave to the person against whom the theft was committed (Jolowicz and Nicholas 1972, p. 167). While many ancient legal systems recognized the difference between offenses against the state or community and offenses against the individual, the meaning of the distinction and the scope of offenses covered by each category were very different than the ones known to us now. Offenses which are now regarded exclusively as crimes were treated as private wrongs (torts) including, for instance, theft in Roman law (Maine pp. 369–371). Last, some legal systems were almost entirely private. In recent research on medieval Icelandic institutions, it was said that Icelandic institutions “might almost have been invented by a mad economist” (Friedman 1979, p. 400). In the Icelandic system that operated successfully for hundreds of years, “Killing was a civil offence resulting in a fine paid to the survivors of the victim. Laws were made by a ‘parliament,’ in which seats were a marketable commodity. Enforcement of law was entirely a private affair” (Friedman 1979, 400). Iceland is not unique in this respect. As Friedman argues, “[T]he idea that law is primarily private, that most offenses are offenses against specific individuals or families, and that punishment of the crime is primarily the business of the injured party seems to be common to many early systems of law” (Friedman 1979, p. 400; Posner 1983, pp. 119–143).

These historical observations can be described in different ways. Some may say that the Icelandic legal system did not contain penal sanctions (as penal sanctions are “necessarily” or “by definition” public), while others may say that the penal sanctions were privatized in Iceland. Irrespective of how these systems are described, it is evident even to contemporary legal theorists that the division between public sanctions (criminal ones) and private sanctions (torts) is not a sharp division and that the dichotomy drawn between these two systems does not reflect the legal reality (Mann 1992). More importantly, these historical observations are not merely relics of history. Contemporary theorists, in particular economists, have also favored the “privatization” of some aspects of the penal system. It was argued that a system of private enforcement of law, in which the person who caught a criminal received the fine paid by the offender, would be more efficient than the current system in which the fine is paid to the state (Becker and Stigler 1974; Friedman 1979). Further, some “private” penal practices are being reintroduced in a new form. The victim who in the past played a major role in the criminal process both as a policeman and as a prosecutor has now become again influential figure in the criminal process (Mcdonald 1975–76; Levine 2010; Cassell and Joffee 2011). Shaming penalties used extensively in medieval times have become popular again in the USA (Kahan 1996). Although not often noticed, shaming penalties privatize the infliction of punishment as the power to determine the severity of the sanction, and more generally, the power to inflict sanctions is shifted from the state to private citizens (Whitman 1998, p. 1089). Last, the privatization of prisons has triggered a bitter debate (McDonald 1994), and in at least one country, private prisons were declared by the courts to be unconstitutional. (http://elyon1. court.gov.il/files_eng/05/050/026/n39/05026050. n39.htm; Medina 2010). These historical and contemporary findings establish that there is nothing inevitable in there being public control over the penal process. The public nature of punishment is ultimately a normative decision on the part of the polity that has been gradually eroded and its desirability ought to be subjected to normative scrutiny. The rest of this research paper will be devoted to examining the justifications for the involvement of the state in the infliction of punishment.

The Justification For Public Infliction Of Criminal Sanctions

This section identifies three types of justifications for the central role of the state in inflicting punishment (Harel 2008; Harel and Poart 2011). Under the first type of justification – instrumental justifications – the agent which inflicts the sanction must be the agent most capable of inflicting the sanction. Such an agent must make accurate judgments as to the moral gravity of the offense as well as judgments as to the appropriate sanctions, be willing and capable to invest the resources necessary to punish the offender, and have the ability to act on the basis of its judgment. Further, under an instrumental justification, the characterization of who the most capable agent is (or the most successful infliction is), is independent of the identity of the entity in charge of performing it. The state is an appropriate agent to inflict the sanction simply because (and only to the extent) that it is (likely to be) deliberative, impartial, or efficient. Under a second type of justification – normative precondition justifications – the infliction of criminal sanctions by the state achieves goals that could in principle be fully realized through the infliction of sanctions by non-state agents. Yet, in contrast to instrumental justifications, there are normative constraints that preclude the infliction of sanctions by agents other than the state. The agency of the state is not necessary for the success of the infliction of criminal sanctions; it is however a non-contingent normative precondition for the just infliction of criminal sanctions. Under a third type of justification – the state-centered justification – the infliction of criminal punishment by non-state agents is conceptually impossible, as the very infliction of criminal punishment presupposes that it is the state that inflicts it. This is not mere semantics. Under the third type of justification, punishment brings about certain goods and the goods resulting from punishment hinge on the identity of the agent inflicting it. To be considered “punishment” under this view, it is not sufficient that it hurts or causes displeasure to those who have wronged (as those can result from the actions of a private agent); it must also reflect an authoritative judgment concerning the wrongfulness of an act, and such a judgment can only be made by an authoritative entity – the state. It is false therefore to say that private individuals ought not to punish; they simply cannot punish as their acts do not constitute punishment.

Instrumental justifications consist of two major steps. First, the theorist identifies the goals of punishment: deterrence/incapacitation, retribution, etc. These goals are conceptually separable from the identity of the agent inflicting the sanction. Then the theorist establishes that the state is the most likely to successfully realize or bring about these goals. To the extent that the state is more likely/capable of realizing these goals than other agents, it ought to be in charge of inflicting criminal sanctions.

The most influential instrumental justification was made by John Locke. Although ultimately, as shown below, Locke defends a non-instrumental account, Locke developed an influential instrumentalist account. More specifically, Locke believed that the state should be empowered to inflict sanctions on those who transgress the laws of nature because the state is less partial than other agents in its treatment of offenders (Locke 1960, chap. 2). Locke believed that punishment inflicted by individuals is both possible and permissible in the state of nature (Farell 1988). But he also believed that private agents inflicting sanctions are likely to be either too lenient (“Self-Love will make Men partial to themselves and their Friends”) or too harsh (“Passion and Revenge will carry them too far in punishing others”). Law and economic theorists also defend the involvement of the state on the basis of instrumental justifications. In their view, punishment should be supplied by the state because the infliction of sanctions involves a collective action problem. An individual who inflicts a sanction has to bear the costs of inflicting the sanction himself, whereas the benefits resulting from the infliction (deterrence, incapacitation) are enjoyed by everybody. It follows that individuals will underinvest in the infliction of sanctions (Mueller 1989, pp. 9–15) Other theorists also established that private agents are less likely to be accountable than public officials and that often they may act in ways that do not promote the goals of government (Verkuil 2007, chap. 1). The lack of accountability on the part of private agents is often debated in the literature (Minow 2003; Trebilcock and Lacobucci 2003). At the same time, other economists believe that the state is not always the best agent to inflict punishment. It has been argued, for instance, that states are inclined to increase sanctions above the optimal level in order to “export” their criminals elsewhere (Harel 2012, pp. 34–35).

Note that instrumentalist justifications could be based on any theory of punishment. Instrumentalists could support retributivism and argue that the state is the agent that is most likely to inflict a sanction that is proportionate to the gravity of the wrong (and is therefore “deserved” by the criminal). Deterrence theorists could argue that the state is the most likely to inflict a sanction that deters effectively or, at least, to do it efficiently. Rehabilitation theorists would maintain that the state is more likely to succeed in integrating the criminal into society etc.

Instrumentalist arguments require establishing factual claims concerning the state. Once the goals of punishment are identified, it is necessary to show that the state makes better judgments concerning the “appropriate” sanctions, is better able to inflict the sanction, is more likely to calibrate their optimal size, etc. Further, if faced with contrary evidence, an advocate of an instrumentalist argument must be willing to concede that punishment ought to be inflicted by non-state entities. There are no principled grounds why the state ought to inflict criminal sanctions. The desirability of privatization hinges therefore on contingent factors and such factors may change from time to time and from society to society.

This observation provides a basis for criticizing the instrumentalist view. Arguably, the instrumentalist fails to capture a prevalent intuition, namely, that the involvement of the state in the infliction of punishment is not a mere contingency hinging on its (alleged) ability to “get it right.” Those who challenge instrumentalist views maintain that “it is not generally accepted that I have the right simply to hurt another who has done something wrong, just because he has done it, where there is no special relation between us” (Lyons 1976, p. 210). Further, “neither one’s general level of virtue nor one’s particular talents in the area of punishing… are normally taken to establish any special claim to be the one who should punish others (Simmons 1991, p. 312) Even Locke (who developed also an instrumentalist account described above) agrees with this observation and says: To justify bringing such evil [i.e., punishment] on any man two things are requisite. First that he who does it has commission and power to do so. Secondly, that it be directly useful for the procuring of some other good.. .Usefulness, when present, being but one of those conditions, cannot give the other, which is a commission to punish” (Locke 1823, emphasis added).

Under this challenge, one ought to separate two questions: (a) whether an agent “deserves” to be punished or ought to be punished and (b) whether a particular agent is the “appropriate agent” to inflict the sanction (Hill 1999). To justify the infliction of punishment X by an agent Y on a wrongdoer Z, it is not sufficient to show that X should be inflicted on Z and that Y is the most likely or the most capable to inflict it. Something else needs to be shown.

This powerful intuition is evident in the context of family relationship. A child may deserve punishment, or punishment may be conducive to the child’s well-being or, all things considered, it may be desirable that the punishment be inflicted. The common law has recognized the parents’ privilege of moderate chastisement. But, according to the common law, the only agent for whom it is permissible to inflict the sanction on the child would be a parent or, in special cases, somebody to whom the parent delegated the power, e.g., teachers (Blackstone Book I, Chap. 16). Of course such a power granted to parents could be justified purely on instrumental grounds, e.g., that parents are more likely to inflict the “right” punishment, but it seems that beyond the purely instrumental grounds, non-instrumental concerns are also at stake (Harel 2008, p. 123).

Both normative constraints theories and state-centered theories reject the instrumental view and attempt to explain why sanctions ought to be inflicted only by “appropriate” agents and appropriateness, in their view, is not merely a contingent fact. Under the normative constraints explanations, the infliction of sanctions by “inappropriate” agents may serve the purposes of punishment (whatever these purposes are). Yet there are normative constraints on the infliction of sanctions that are not grounded in instrumental concerns. Even when the punishment inflicted by an agent X is impartial, effective, and just, it could be illegitimate and wrong simply because it is inflicted by X rather than by another agent. Under the state-centered explanations, sanctions that are imposed by the “wrong” agent do not constitute punishment at all as they fail to realize the goods that punishment is designed to realize.

Locke and Nozick defend what I labeled a normative constraints theory. Under their view, individuals in the state of nature have a right to punish (designed to prevent further wrongdoing on the part of the wrongdoer herself and on the part of others) (Locke 1960, chap. 2; Nozick 1977, pp. 3–119). Further, individuals not only have a right to punish but also a right to transfer/alienate the right to punish. Last, both Locke and Nozick believe that we can attribute to individuals a decision to transfer the right to punish to the state (based on their own concern to protect their natural rights and the greater effectiveness of the state in calibrating sanctions). The authority of the state to punish is attributable not merely to the “usefulness” of the state but also to its “commission to punish” based on the voluntary (or constructive) alienation of the right to punish. Similarly Rousseau maintains that “The punishment of death inflicted on criminals may be considered from the same point of view: it is to secure himself from being the victim of assassins that a man consents to die if he becomes an assassin” (Rousseau 1954, p. 31, emphasis added). Punishment inflicted by private agents is therefore impermissible not merely because it is likely to be disproportionate or unjust but also because the power to punish was transferred voluntarily (or should be regarded as if it was transferred voluntarily) by those who have a natural right to punish (i.e., individuals) to the state.

Normative constraints justifications can address the concern raised earlier against instrumentalist justifications; in particular, they can explain why the power of the state to punish does not merely hinge on contingent considerations such as the fact that the state is more likely than any other agent to make better judgments concerning the appropriate size, the type of the sanctions and/or to be better able to inflict them, etc. Under the normative constraints justifications favored by Locke or Rousseau, it is not sufficient to maintain that the state “does it better.” In addition, it is necessary to establish that the individual upon whom the sanction is being inflicted agreed or consented to the infliction of the sanction by the state. The nature and the conditions required for establishing such consent on the part of individuals are different, but this condition imposes restrictions on the agents who can punish.

State-centered justifications go further and argue that the power to punish is an agent-dependent power; only the state can punish, that is, realize the goals of punishment. State-inflicted sanctions are designed to realize goals or perform tasks that cannot, in principle, be performed successfully by private institutions or individuals. To develop a state-centered justification, it is necessary to develop a theory of punishment – a theory that will explain what is particularly valuable about punishment and, then, establish that the only agent capable of realizing this value is the state.

A useful analogy is the blood feud (Harel 2008, p. 121). Anthropologists have found that blood feuds can only be performed by male relatives of the deceased (Barmash 2005, p. 24; Miller 1983, pp. 162–168). In a blood feud, it is not the mere act of killing or the death of the member of the enemy clan that counts; it is rather the performance of the killing by an “appropriate agent.” The agent killing the murderer in a blood feud is not perceived as a mere means to perform the allegedly just act of killing. Instead, it is the act of killing that provides an opportunity for the appropriate agent to act in order to redress the injustice. Even closer to our concerns here is the view of Joel Feinberg who believes that “punishment expresses the judgment of the community that what the criminal did was wrong” (Feinberg 1994, p. 76). Although Feinberg did not envision the possibility of privatizing punishment, it seems that he could maintain that the infliction of sanctions by non-state agents may be effective in many ways; it may deter wrongdoers, incapacitate criminals, satisfy retributivist concerns, etc., but private sanctions fail to punish as they do not express the judgment of the community that the act is wrong.

Punishment, under such a view, is a public manifestation of condemnation and disapprobation of the criminal deed. As Nozick argues: “[r]etributive punishment is an act of communicative behaviour” and, further, Nozick believed that retribution achieves two goals. The first is “to connect the criminal to the value qua value,” and the second is to connect the wrongdoer to the value in a way “that value qua value has a significant effect in the criminal’s life, as significant as his own flouting of correct values” (Nozick 1981, p. 370). The view is shared also by prominent criminal law theorists who believe criminal law can only be understood as a communicative practice (Duff 2001). Unlike deterrence, and perhaps other conventional goals of punishment, public condemnation is possible in the first place only if it emanates from an appropriate agent. If a wild dog attacks me while I am stealing my neighbor’s property, it does not “punish” me as the dog did not make a judgment concerning the wrongfulness of my behavior. For similar reasons, if a child or a madman hits me while I am committing a wrong, the act does not constitute punishment. Mere pain or harm resulting from committing a wrong is not sufficient to constitute punishment; the pain or harm must result from a considered judgment made by an agent capable/authorized of making such a judgment.

More generally, condemnation/judgment of a wrongful act presupposes an agent who is in a privileged status to the one subjected to the condemnation, viz., one whose judgments concerning the appropriateness of behavior are worthy of attention or respect. The wrong agent fails to punish not because it fails to inflict harm – or even inflict harm resulting from a wrongful act – but because it cannot make the appropriate judgments. In the absence of such judgments, the mere infliction of “a sanction” amounts to an act of violence (Dorfman and Harel 2013, pp. 92–96).

To complete the argument, one needs to show that the state is the only agent which can make judgments of the relevant sort. Given certain assumptions, this challenge can be met. Arguably, the state is a legitimate authority whose judgments concerning the wrongfulness of the behavior count. Further, no other entity is capable of forming judgments of the right type. The judgments of the state may count either because its judgments are more likely to be correct or true (such that conforming to these judgments is more likely to lead agents to act in accordance with reason) (Raz 1986, chap. 3) or because its decisions reflect its will and its will has normative force, or for other reasons. In any case, one may draw the conclusion that the state is an agent that can effectively condemn certain types of behavior and make judgments with respect to them while other agents cannot.

A close reading of Kant’s discussion of punishment in the Metaphysics of Morals establishes that Kant supported a state-centered justification for criminal sanctions. In a famous passage, Kant says:

Even if a civil society were to be dissolved by the consent of all its members.. ., the last murderer remaining in prison would first have to be executed, so that each has done to him what his deeds deserve and blood guilt does not cling to the people for not having insisted upon this punishment; for otherwise the people can be regarded as collaborators in this public violation of justice. (Kant 1996, p. 106)

Kant insists in this passage that the last murderer has to be executed before the dispersion of society. But why is the execution of the murderer so urgent; why could it not be postponed? Perhaps Kant believes that an attempt to remedy the injustice by executing the murderer after the dispersion of society would fail to punish for this would constitute a private act of killing rather than a public act of execution and a private killing could not be done in the name of the people as a collectivity (Harel 2008, 122).

In examining the relations between punishment and the state, we did not distinguish among the legislative act (setting the maximum sentence or the range of permissible sentences for a wrong), the adjudicative act (inflicting a punishment for a particular wrong), and the execution of the sentence, e.g., maintaining a prison. It is not surprising that privatizing the execution of the punishment, e.g., privatizing prisons, seems the least controversial. This is so because it seems that privatizing the prisons does not really count as privatizing the punishment itself, but merely the manner or the technicalities of its infliction. Under this view, there is no reason to care whether prisons are run by public officials or by private contractors (as long as legislatures and courts are the ones who dictate what the punishment is).

This claim however is not self-evident. As the petition challenging the privatization of prisons in Israel indicated (Medina 2010), private prison wardens are not mere technocrats executing state decisions. They regularly make decisions that affect the welfare of inmates such as holding a prisoner in administrative isolation, carrying out an external examination of an inmate’s naked body, and using reasonable force to carry out a search. These decisions require the exercise of judgment and, arguably, they ought to be made only by agents capable of exercising such judgments in the name of the state, namely, by public officials and not by private individuals, as only the exercise of judgment on the part of the former count as the judgments made by state.

To sum up, while the instrumentalist justifications maintain that the state ought to be in charge of the infliction of sanctions to the extent that it is capable of inflicting “appropriate” sanctions in an efficient manner, both normative constraints justifications and state-centered justifications believe that the state is uniquely placed to punish. State-centered justifications also maintain that the very value of punishment hinges on the identity of the agent inflicting it. It is not that it is impermissible for non-state agents to punish; it is rather that no other agent can punish and any attempt to punish on the part of such agents is bound to fail and constitute a mere act of violence.

Does The State Have A Duty To Punish

Section “The Justification for Public Infliction of Criminal Sanctions” explored arguments concerning the right of the state to punish and, in particular, whether and, if so, why this right is exclusively that of the state. However, this leaves open an additional central question concerning the role of the state, namely, whether the state has a (political or constitutional) duty (rather than merely a right) to punish (Hill 1999).

To say that only the state has a right to punish may seem too weak without acknowledging in addition the existence of a duty to punish on the part of the state. Can the state simply fail to criminalize murder or theft (or to refuse to punish those who commit these crimes) simply if it wishes to do so? Further, even if the state has such a duty, should the duty to criminalize be constitutionally entrenched or should the decision be left to the state? Intuitively, it seems that such decisions ought not to be left to the good will of the state. To, explore these questions, let me start with a real-life case – the constitutional decision of the German Constitutional Court concerning abortion.

In 1975, the German Constitutional Court declared that the law which allowed abortion on demand during the first trimester of pregnancy was unconstitutional as it violated Article 2 section 2 of the German Basic Law protecting the right to life (39 BVerFG 1 1975; Kommers 1985, p. 371; Lange 2011, p. 2033). The Constitutional Court emphasized that abortion is an act of killing that the law is obligated to condemn through the use of criminal law. Under this view, the state had not only the right but also the (constitutional) duty to criminalize abortion (Kommers 1985, 395). As a result of reunification, the German Constitutional Court had to address the matter again, and in its later 1993 decision, the Court reiterated its commitment to the view that abortion is indeed a violation of the right to life and that the state has an obligation to protect life, including the life of the fetus (88 BVerfGE 203). Further, the Court believed that protecting life requires also criminalizing abortion. It followed that abortion ought to remain criminal although the state could substitute “normative counseling” for criminal punishment as a way of fulfilling its obligations to protect fetuses.

The German Constitutional Court adhered to the view under which the state has a (both moral and constitutional) duty to criminalize abortion. To further investigate, the soundness of this claim assume that evidence is provided to the Bundestag convincing it that decriminalizing abortion would, as a matter of fact, reduce the rate of abortions in society and, consequently, more lives would be saved if abortions were decriminalized. On the basis of this evidence, the Bundestag concludes that while fetuses have a right to life, criminalizing abortions is detrimental to the protection of the right to life and, consequently, it declares that decriminalizing abortion is constitutional.

Such a conclusion would not be absurd; yet it is not self-evident either. Arguably, even if the state could better protect life if it decriminalized murder, it ought not to do it. State punishment is not merely an instrument to protect life, freedom of expression, etc. Protecting a right, so it could be argued, involves also public condemnation of violations of the right. Punishment inflicted by the state is as much about condemning the violation of the right to life as it is about the protection of life itself. Moreover, failure to criminalize abortion implies that the life of the fetus is “at the mercy” of the mother, and this seems wrong even under the assumption that criminalization does not reduce the number or frequency of abortions. Another case which may demonstrate the scope of the duty of the state is the case of X & Y v. the Netherlands (8 EHRR 235 26 March, 1985) in which the European Court of Human Rights decided that the state has a positive duty to charge criminally a person who allegedly committed rape even when the victim who was mentally disabled could not bring charges against him.

Further, it could be argued that the duty to criminalize is not merely a political duty on the part of the state; arguably it ought also to be a constitutional duty. If the state has no constitutional duty to criminalize, the life of the fetus, so it could be argued, is “at the mercy” of the legislature; it hinges on the inclinations of the legislature. If the legislature decides not to criminalize abortion, the fetus’ life is at the mercy of the inclinations of the mother. Even if the legislature criminalizes abortion, the life of the fetus hinges on the inclinations of the legislature, namely, on its willingness to criminalize. Arguably, it is only a constitutional duty to criminalize that can remedy these defects.

The decision of the German Constitutional Court can be rationalized precisely on the grounds that protecting the fetus’ right to life is not to be left either to the mercy of the pregnant woman or to the inclinations of the legislature. The legislature must not merely criminalize abortion; it must be constitutionally obliged to do so as it is not “up to the legislature” to make decisions concerning the life of the fetus.

More generally, in the absence of entrenching a constitutional duty to criminalize violations of basic rights, the mere willingness of a legislature to criminalize can be interpreted as grounded in its good will. In contrast, the constitutional duty to criminalize does not leave the decision to criminalize to the discretion of the legislature. Consequently, upon entrenching such a duty, citizens do not live “at the mercy of” the legislature.

Conclusion

Privatization may be desirable for many reasons. It has been evident to many that the desirability of privatization is grounded in instrumental considerations. Much of the debate concerning privatization focuses on instrumental arguments.

This research paper does not urge anyone to ignore or underestimate instrumental considerations, and yet it challenges the assumption that instrumental considerations are all that matter. More specifically, at least in certain contexts, and within certain domains, the instrumental concerns may be too narrow to capture the moral complexity of the considerations at stake. The relations between the state, the criminal process, and criminal sanctions are grounded in principled legitimacy-based considerations touching upon foundational questions of political morality.

These observations are important not only in theory as privatization of different dimensions of the criminal law process is not (as illustrated above) a mere fantasy. Even if a solely privately inflicted scheme of sanctions is not a realistic option, there are current reforms or reform proposals to grant private individuals the power to inflict sanctions for wrongdoing. These proposals have often been initiated and discussed by economists, sociologists, and lawyers. This research paper establishes that in addition to the important insights of social science, philosophers can and should contribute to this debate.

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