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Raffaele Rodogno

Criminal Law and the Internal Logic of Punishment

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We argue that punishment has an essentially retributive core that carries its own retributive type of logic or reasons. In particular, we show that punishment is something that we understand as in principle always being assessable in terms of deservingness and that this is ultimately to be understood in terms of moral culpability and nothing else. These features make up what we call the internal logic of punishment. The practice of punishment, however, can also be assessed with a logic that is external to it. What this consists in is first and foremost determined by the aims and constraints of the punishing agent. For the modern liberal state these are typically understood in terms of deterrence, incapacitation, rehabilitation, and, arguably, the expression of condemnation. The idea that punishment has its own internal logic has a number of consequences with regard to criminalization, to the extent, that is, that the latter involves punishment. For one, purely instrumentalist justificatory accounts of punishment will not work as they fail properly to consider the retributive core of punishment. Next, we consider what follows from the fact that by inflicting punishment, the state takes it upon itself to mix these two logics, the internal and the external, together. In particular, we bring forward some tensions that arise when the state mixes the internal logic of punishment with certain modern, liberal aims
and constraints that are external to punishment.
OriginalsprogEngelsk
TidsskriftPhilosophy and Public Issues
Vol/bind5
Nummer1
Sider (fra-til)135-171
Antal sider40
ISSN1591-0660
StatusUdgivet - 2015

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