On Moral Justifications for the Tort/Crime Distinction

Drane, Robert; Neal, David

doi:10.2307/3479992

Cited by 3 publications

(1 citation statement)

References 0 publications

Supporting

Mentioning

Contrasting

Order By: Relevance

“…But even if the acts are not criminalized under a system orientated to the promotion of dominion, that does not mean that there will be no legal obstacle placed before them. They may still have to be cast as matters for regulation, as matters for educational campaigns, as torts (Drane and Neal 1980}, or whatever. Criminalization is not the only way of inhibiting behaviour; indeed it is probably the most clumsy and intrusive means available to the state.…”

Section: An Uncontroversial Targetmentioning

confidence: 99%

Not Just Deserts: A Republican Theory of Criminal Justice.

Lacey¹,

Braithwaite²,

Pettit³

1991

The Philosophical Quarterly

View full text Add to dashboard Cite

Although this book is equally the product of the two authors, it goes back to an exchange which John Braithwaite had with Andrew von Hirsch and Ernest van den Haag in the Journal of Criminal Law and Criminology in 1982. A good bit of that attack on retributivism appears in Chapter 9 of the book, though some of the views in the 1982 contribution have been substantially modified in the present work. During that debate, von Hirsch accused Braithwaite, fairly we think, of being a destructive critic of just deserts without offering a coherent theoretical alternative. It has taken eight years to think through a response to this challenge. True to von Hirsch's prediction, the discipline of doing so has modified Braithwaite's views considerably. The book connects with Philip Pettit's work in a different way. He had been concerned to identify values whose consequentialist promotion looked attractive and appealing: in particular, looked likely to sustain a natural respect for rights, deserts, and such constraints (Pettit and Brennan 1986). He had identified dominion as a political goal whose institutional promotion could guarantee respect for certain rights of individuals and he had come to recognize this as a goal of a republican stamp (Pettit 1988a, b). Dominion amounts to freedom in the social sense of full citizenship-elsewhere he describes it as 'franchise'-and a focus on that goal is distinctive of the republican tradition which dominated Western political thinking from Machiavelli down to the end of the eighteenth century. There is also a complementarity between Braithwaite's Crime, Shame and Reintegration, an explanatory theory of crime, and the present normative theory of criminal justice. The explanatory theory book contends that crime will be less in societies which shame offenders without stigmatizing them, which denounce and reason with offenders over their crimes while maintaining bonds of community and respect. Low-crime societies are those that foster a sequence of shaming, forgiveness, and repentance: they are societies that give relatively more prominence to viii Preface moralizing social control over punitive social control. The republican theory of the present book finds virtue in those forms of social control which involve such a response to crimes: that sort of response serves to foster a greater enjoyment of dominion overall. Braithwaite is a criminologist, Pettit a philosopher, though both sometimes describe themselves as social and political theorists. The difference of discipline is reflected in the structure of the book: some chapters are equally the work of both, but Pettit bears primary responsibility for those that connect particularly with the philosophical literature (3, 4, 5), Braithwaite for those that connect particularly with the criminological (6, 7, 9). Though primary responsibility is distributed in this way, the book is genuinely the product of interdisciplinary collaboration. Countless hours of discussion, drafting, and revision have meant that every claim has been touched by both p...

show abstract

Section: An Uncontroversial Targetmentioning

confidence: 99%