Session 1 – between shield and sword

A. Theories of punishment

Questions

1. What is punishment?
Hart (British legal philosopher): it involves pain or other unpleasant consequences, it
must be for an offence against legal rules, it must be for an actual or supposed offender
for his offence, it must be administered by human beings other than the offender, and it
must be imposed by an authority.
Packer (American legal scholar): Hart’s five elements + the goal for which the
punishment is imposed.

2. What is the difference between a crime and a tort?

Every crime is a tort, but not every tort is a crime.
Blackstone (English jurist): a crime is a public wrong, while a tort is a private wrong: the
private wrong only affects the victim, while the public wrong concerns the public, the
polity as a whole.

3. How can criminal law be distinguished from administrative law?

Administrative law and criminal law are both branches of public law.
Administrative law is primarily orientated towards reparation and prevention, and if
sanctions lead to suffering, that is not intended.
On the contrary, the main aim of criminal law is the retribution, and the intentional
infliction of suffering is its central characteristic.
However, the distinction between these two branches became blurred with the
establishment of administrative fines, which have introduced the retributive component
within administrative law.

4. What is the difference between punishment, taxes, treatment, and other forms of
(governmental) coercion?
Punishment is considered a tool of criminal law, in which the intentional infliction of
suffering plays a central role.
All the other forms of coercion are tools of administrative law and other branches of
public law; they are free of the aim of intentional suffering. The only exception is the
administrative criminal law, since they are administrative sanctions, such as fines, but at
the same time cause suffering.

5. How would you describe the main characteristics of the Enlightenment and its influence
on (the philosophy of) criminal law?
The Enlightenment was an historical period characterized by the ratio as overall means.
It was seen as a reaction against the Ancien Regime, and the legal scholars realized that
punishment required a solid legitimization. They were supporters of the principle of
subsidiarity and proportionality. The Enlightenment was characterized by a different
view on man. On one hand he was seen as a machine, hence causally determined and
 easily manipulated, and therefore could not be held responsible (Bentham). On the other
hand, he was seen as a reasonable human being, and therefore responsible for his actions
(Kant). A tension between body and spirit. Two theories of punishment emerged, namely
the retributive theory and the utilitarian theory.

6. What are the main ideas behind a retributivist theory of punishment?

According to the retributive theory, man is the subject, and a reasonable individual, and
therefore responsible for his conduct. The central element is not the offender, but the
crime he committed. Someone should be punished because a crime has been committed,
and the punishment is an instrument to ‘settle the score’, to restore the status quo ante, to
satisfy feeling of revenge. The punishment should be proportional to the seriousness of
the offence and the culpability of the offender.
This theory is based on Kant’s view of mankind.

7. How does a consequentialist/utilitarian theory justify punishment?

According to the utilitarian theory, man is the object, a machine, and therefore can be
causally influenced by biological, psychological, and social factors. Culpability does not
play a role, since the theory is not about whether the offender could have acted differently
from what he did, but rather on whether he will act differently in the future if he is
punished.
Punishment is only viewed from the perspective of the prevention of future crimes,
otherwise it should not be used. Punishment is only justified when it prevents future
crimes, if no instrument of lesser evil exists that has the same preventive effects
(principle of subsidiarity), and if it does not inflict more damage on the offender
(principle of proportionality). It can concern deterrence, incapacitation, social re-
integration, and rehabilitation.
This theory is based on Bentham’s view of mankind.

8. Can you formulate objections against a retributivist theory of punishment?

Several critics can be formulated against this theory:
a. Some acts cannot be balanced out, since punishment to restore balance does not
always lead to justice.
b. Damages, instead of punishment, could offer a more suitable form.
c. Punishment should not be seen as a moral norm, through which feelings of revenge
are satisfied by punishment.

9. How would you criticize a utilitarian theory of punishment?

Several critics can be formulated against this theory:
a. The realization of prevention can hardly be measured.
b. It assumes that crimes can be explained on the basis of cost-benefit analysis.

10. Why are general and special deterrence called utilitarian goals?
Special prevention, which concerns actual offender, and general prevention, which
concerns potential offenders, are utilitarian goals since deterrence focuses on the future as
utilitarian theories do (the retributivist theory focused on the past).
 11. What is the main idea behind the penal welfarism?
The penal welfarism is the idea – spread across Western Europe after WWII – of
resocialization and re-integration of offenders. Prisoners should have the right and the
positive motivation to gain opportunities for advancement within the criminal justice
system.
12. How did the rise of our so-called modern ‘risk society’ influence criminal law and the
justification of punishment?
Crimes became risks that had to be managed by criminal law, in order to prevent them.
The ‘risk society’ is based on the ‘nothing works’ mentality: instead of focusing on the
positive prevention, the aim is at the negative one, namely the deterrence and the
incapacitation.
In fact, the primary goals are now the revenge, deterrence and incapacitation. Prevention
prevails, also by using repression.

13. How has the position of the victim changed over the years in relationship to criminal
law?
With Napoleon, the victim-offender mediation was abolished, and victims were no longer
stakeholders, and their compensation could only happen in form of tort (via civil courts).
During the mid-1980s, the victim regained a position, and within the EU framework, he
obtained several rights (right of information, right to a lawyer, right to an interpreter,
right to receive compensation). This led to the revival of the restoration of justice (groups
conferences, victim-offender mediation).

14. In the light of what you studied: how would you define the risks if ‘social protection’ or
‘security’ would become the exclusive rational for punishment?
There would be the need of legitimization.

Case study: looking for a good reason to punish

a. General deterrence. The statement is wrong, since the utilitarian view recognizes
prevention.
b. Special deterrence. Utilitarianism would not support it since it may not achieve special
deterrence.
c. Retributivist would support it, since punishment is deserved.
d. It represents the utilitarian goal, not retributivist.

B. Principles of criminalization

Questions

1. What are some of the main consequences of the ‘risk society’ and ‘the culture of control’
for criminalization? Could you give some examples?
In the ‘risk society’, the central task of the state is the distribution of ‘bads’, rather than of
‘goods’, no longer focusing on the question how the wealth created by society (incomes,
consumer goods, healthcare) could be fairly and equally distributed amongst all members
 of society, but on how the risks (pollution, cybercrime, terrorism) can be prevented and
minimized.
Another consequence that has impact on the criminal law is the shift from the penal
welfarism, based on integration and rehabilitation, to a more regressive and punitive
culture, leading to the creation of a new breed of criminal offences.

2. Are the principle of individual autonomy and the principle of welfare necessarily opposed
to each other?
The principle of individual autonomy (each individual should be treated as responsible
for his own behavior) and the principle of welfare (the state has the duty to create and
maintain the social conditions for the pursue of collective goals and interests) are not
necessarily opposed, since the two principles may work towards the same end, especially
when the state needs to protect an environment which is necessary for the full exercise of
autonomy by individual citizens.

3. What are the different versions of the harm principle?

The harm principle, which was introduced by Mill (the only purpose for which power can
be rightfully exercised over any member of a civilized community, against his will, is to
prevent harm to others) is divided into two principles: the harmful conduct principle and
the harm prevention principle.
a. Inclusionist: harm is only one of the factors for criminalization.
b. Exclusionist: harm is sufficient for criminalization (i.e. ‘pure rape’ case).

4. What is the difference between an instrumental interpretation and a conduct-centered

interpretation of the harm principle?
For the instrumental interpretation (also called harm prevention principle), the
criminalization is justified in order to prevent harm to others, while according to the
centered interpretation (also called harmful conduct principle) the criminalization is
justified if it is harmful, or creates an unreasonable risk of harm to others.
In the harmful conduct principle what matters are the harmful consequences of the acts
themselves, while for the harm prevention principle, the focus lies on the consequences
intended by the criminalization itself.

5. What constitutes harm?

Harm is described as a setback to interests or as an impairment to resources.

6. What is the role of wrongfulness in relation to the harm principle?

The mere causing of harm is in itself not sufficient, because the harm must be wrongful.
Legal wrongfulness is different from moral wrongfulness, since it covers juridical
wrongs, which are types of conducts that have an impact on a person’s rights.

7. Why is adultery in most liberal legal systems no longer a crime?

 Adultery is in most modern legal systems not a crime anymore, because no matter how
harmful betraying your marriage may be, adultery is no longer perceived as something
for which society has a shared and mutual concern.

8. What is considered problematic in the criminalization of remote harms?

Because it is difficult to criminalize conduct that only create abstract endangerment.

9. Is ‘harm’ a necessary or even a sufficient principle for criminalization?

Harm itself is not sufficient for criminalization, because it must be consequence of
wrongful conduct and it must be a public wrong (harms that are proper concern of the
public).

10. What are some of the problems of the so-called theory of legal goods?
The theory of legal goods is used by German criminal law to define its scope. It has the
sole function of protecting legal interests in order to guarantee and assure the peaceful
coexistence of citizens. Therefore, any interest that does not qualify as a legal good can
by definition not enjoy protection through the criminal law.
Problems may arise concerning the definition of legal goods that can cover all legitimate
criminal offences, avoiding the broad.
Legal goods principle is opposed to harm principle.

11. How does the criminalization relate to the protection of human rights?
The protection of human rights is a central task of the liberal justice system, and it is
common ground that criminal law must respect human rights, protecting them. One of the
most important fundamental right is the right to life, protected under criminal law, which
determines for examples under which circumstances and how the use of lethal force by
the police may be justified.

12. Why should criminal law be the last resort?

The principle of ultima ratio, also called principle of subsidiarity, establishes that
criminalization should not be accepted when non-punitive alternatives are ‘less evil’ and
achieve the same result.