The Denials of Justice

Meranze, Michael

doi:10.2307/744324

“…Reformers aimed to replace some forms of sympathy with other (class-rooted) sympathies: sympathy between elite reformers and their charges was valorized while the sympathy that often occurred between the condemned and the populace was delegitimated. 4 Instead of seeing an enlightened, if incomplete, effort to extend empathy throughout society, we would do well, I think, to recognize that eighteenth-century notions of sympathy were as much mechanisms of class distinction as of universalization; they reinforced division as well as overcame it. This is not to deny the genuine effort of Enlightenment thinkers and reformers to act in a spirit of humanity.…”

Section: The Denials Of Justice M I C H a E L M E R A N Z Ementioning

confidence: 99%

“…In Rousseau's words, " [t]he people that is subject to the laws ought to be their author." 4 The moral and political theory of the Enlightenment, in short, rested on the autonomy of abstractly identical rational persons.…”

mentioning

confidence: 99%

Historical Analysis of Law

Dubber¹

1998

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Kenneth Ledford's and Michael Meranze's insightful comments raise important questions about the nature of legal history in general, and of the history of punishment in particular. According to Ledford and Meranze, modern legal history is social history, to be distinguished from “old-style intellectual history.” A product of the latter “historical method no longer in favor,” “The Right to Be Punished” draws Ledford's and Meranze's criticism for its insufficient “root[s]… in the soil of social history” and for its inadequate “account of the … social basis of the modern will to punish” and “the social embeddedness of punishment.”

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“…Reformers aimed to replace some forms of sympathy with other (class-rooted) sympathies: sympathy between elite reformers and their charges was valorized while the sympathy that often occurred between the condemned and the populace was delegitimated. 4 Instead of seeing an enlightened, if incomplete, effort to extend empathy throughout society, we would do well, I think, to recognize that eighteenth-century notions of sympathy were as much mechanisms of class distinction as of universalization; they reinforced division as well as overcame it. This is not to deny the genuine effort of Enlightenment thinkers and reformers to act in a spirit of humanity.…”

Section: The Denials Of Justice M I C H a E L M E R A N Z Ementioning

confidence: 99%

“…. social basis of the modern will to punish" 4 and "the social embeddedness of punishment." 5 In this reply, I sketch an alternative to Ledford's and Meranze's implicit vision of legal history by focusing on the question, What is the point of legal history?…”

Section: The Denials Of Justice M I C H a E L M E R A N Z Ementioning

confidence: 99%

Identity, Difference, and Enlightenment Heritage(s): Comment on “The Right to Be Punished”

Ledford¹

1998

Law hist. rev.

1

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Markus Dirk Dubber has provided the readers of the Review with an erudite and fascinating essay that traces a change in modern western penal thought since the Enlightenment. What he presents is a very brave attempt to mount a left critique not only of contemporary vicious trends toward the escalation of retributive criminal penalties, but also of the therapeutic concepts of fundamental difference that have characterized rehabilitationist theories of punishment. In Dubber's view, rehabilitationism wandered from the path prepared by the Enlightenment and thereby invited barbaric reactionaries once again to dominate the field of criminal punishment. While the essay makes an important point about the blindness of rehabilitationists to the need to justify and legitimize the imposition of punishment, and while it brings to the attention of Anglo-American specialists the importance of figures from the German Aufklärung, such as Fichte, Kant, and Hegel, and rehabilitationists, such as Krause and Röder, it leaves the reader wondering about how to transcend the limits of the formalism of Enlightenment abstract identity and how to root the geistesgeschichtlich erudition of the author's idealism in the soil of social history.

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“…In Rousseau's words, " [t]he people that is subject to the laws ought to be their author." 4 The moral and political theory of the Enlightenment, in short, rested on the autonomy of abstractly identical rational persons.…”

mentioning

confidence: 99%

The Right to Be Punished: Autonomy and Its Demise in Modern Penal Thought

Dubber¹

1998

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The Enlightenment was the age of empathy and abstract identity. The common man no longer was to be pitied for his unfortunate plight. Instead, enlightened gentlemen and reformers strove to empathize with the ordinary person—identify with him—precisely because he was identical to them in some fundamental sense. That sense differed from Enlightenment theory to theory, but the identity remained central. So Bentham insisted that every member of the utility community was like any other because every member's pain and joy equally affected the utilitarian calculus and thus the common good. Contractarians like Beccaria or Fichte portrayed all citizens as identical insofar as they were all signatories to the social contract, a contract grounded in the shared rationality of its signatories who surrendered some of their external freedom to pursue their life plans protected from the chaos of the law of nature. And Kant and Hegel stressed the common capacity for rational deliberation shared by all humans as rational beings.

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The Denials of Justice

Cited by 4 publications

References 5 publications

Historical Analysis of Law

Historical Analysis of Law

Identity, Difference, and Enlightenment Heritage(s): Comment on “The Right to Be Punished”

The Right to Be Punished: Autonomy and Its Demise in Modern Penal Thought

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