But a theory of punishment must also have something to say about its aims and justification in the context of international criminal law — about how we should understand, and whether and how we can justify, the punishments imposed by such tribunals as the International Criminal Court: for we cannot assume that a normative theory of domestic criminal punishment can simply be read across into the context of international criminal law see Drumbl Rather, the imposition of punishment in the international context raises distinctive conceptual and normative issues.
Another important question is how international institutions should assign responsibility for crimes such as genocide, which are perpetrated by groups rather than by individuals acting alone. Such questions arise in the domestic context as well, with respect to corporations, but the magnitude of crimes such as genocide makes the questions especially poignant at the international level.
Several scholars in recent years have suggested that rather than focusing only on prosecuting members of the groups responsible for mass atrocities, it may sometimes be preferable to punish the entire group qua group. A worry for such proposals is that they risk inflicting punitive burdens on innocent members of the group. In response to this concern, defenders of the idea of collective punishment have suggested that it need not distribute among the members of the group see Erskine , Pasternak , Tanguay-Renaud ; but see Hoskins b , or that the benefits of such punishment may be valuable enough to override concerns about harm to innocents see Lang Primoratz , Honderich , and Ellis are useful introductory books.
Duff and Garland ; Ashworth, von Hirsch; and Roberts ; and Tonry are useful collections of readings.
Hoskins nottingham. Legal Punishment and its Justification 2.
Punishment, Crime, and the State 3. Consequentialist Accounts 4. Retributivist Accounts 5. Punishment as Communication 6. Mixed Accounts 7. Legal Punishment and its Justification The central question asked by philosophers of punishment is: What can justify punishment?
Punishment, Crime, and the State Legal punishment presupposes crime as that for which punishment is imposed, and a criminal law as that which defines crimes as crimes; a system of criminal law presupposes a state, which has the political authority to make and enforce the law and to impose punishments.
Consequentialist Accounts Many people, including those who do not take a consequentialist view of other matters, think that any adequate justification of punishment must be basically consequentialist. Retributivist Accounts Whereas consequentialist accounts regard punishment as justified instrumentally, as a means to achieving some valuable goal typically crime reduction , retributivist accounts contend that punishment is justified as an intrinsically appropriate, because deserved, response to wrongdoing but see Berman for an argument that some recent versions of retributivism actually turn it into a consequentialist theory.
Punishment as Communication Perhaps the most influential version of retributivism in recent decades seeks the meaning and justification of punishment as a deserved response to crime in its expressive or communicative character. Further Issues The previous sections sketched the central contemporary accounts of whether and how legal punishment can be justified—and some of the objections and difficulties that they face.
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