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Punishment and the rule of law
This essay will consider how some central issues that Carlos Nino discussed
in his writings on the philosophical theory of punishment are relevant to
the difficult empirical and political problem of building a legal order that
preserves the rule of law and provides remedies for victims of past human
rights abuses. Carlos Nino was remarkable in combining philosophical
scholarship with important and courageous contributions to this difficult
political problem. My first contact with him came when he submitted his
article “A Consensual Theory of Punishment”to the journal
Philosophy and
Public Affairs, of which I was then an associate editor. This article attempts
to provide a justification for criminal penalties that avoids retributivism
but also explains why a system of penalties cannot be justified solely on
the basis of its deterrent effects. It was, for me, an exciting paper to read. I
very much agreed with the main line of Nino's theory, although I thought
that there were certain rather subtle ways in which it went astray. We had
a brief but stimulating correspondence about these issues. In retrospect it
is striking—indeed, to someone like me who has spent his adult life in the
sheltered academy it is truly amazing—that the seemingly academic issues
discussed in Nino's article, including the rather subtle point on which we
disagreed, turned out later to be of very considerable practical importance.Philosophical reflection on the problem of punishment has focused on
two general questions: the justification for punishment and the limits on
its legitimate application. Theoretical reflection of this kind bears on the
practical problems we are discussing in at least four ways:
1. | It bears on the grounds and interpretation of the prohibition against
retroactive punishment. |
2. | It bears more generally on the state of mind required in an offender as
a precondition of legal guilt. |
3. | It bears on the permissibility of selective punishment. Nino stated, for
example, in his response to Diane Orentlicher in the Yale Law Journal
that only a retributivist theory of punishment requires punishing all of |
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