Law, Ideology And Punishment: Retrieval And Critique Of The Liberal Ideal Of Criminal Justice by A.w. NorrieLaw, Ideology And Punishment: Retrieval And Critique Of The Liberal Ideal Of Criminal Justice by A.w. Norrie

Law, Ideology And Punishment: Retrieval And Critique Of The Liberal Ideal Of Criminal Justice

byA.w. Norrie

Paperback | September 20, 2011

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This book is about 'Kantianism' in both a narrow and a broad sense. In the former, it is about the tracing of the development of the retributive philosophy of punishment into and beyond its classical phase in the work of a number of philosophers, one of the most prominent of whom is Kant. In the latter, it is an exploration of the many instantiations of the 'Kantian' ideas of individual guilt, responsibility and justice within the substantive criminal law . On their face, such discussions may owe more or less explicitly to Kant, but, in their basic intellectual structure, they share a recognisably common commitment to certain ideas emerging from the liberal Enlightenment and embodied within a theory of criminal justice and punishment which is in this broader sense 'Kantian'. The work has its roots in the emergence in the 1970s and early 1980s in the United States and Britain of the 'justice model' of penal reform, a development that was as interesting in terms of the sociology of philosophical knowledge as it was in its own right. Only a few years earlier, I had been taught in undergraduate criminology (which appeared at the time to be the only discipline to have anything interesting to say about crime and punishment) that 'classical criminology' (that is, Beccaria and the other Enlightenment reformers, who had been colonised as a 'school' within criminology) had died a major death in the 19th century, from which there was no hope of resuscitation.
Title:Law, Ideology And Punishment: Retrieval And Critique Of The Liberal Ideal Of Criminal JusticeFormat:PaperbackPublished:September 20, 2011Publisher:Springer NetherlandsLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:9401068003

ISBN - 13:9789401068000

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Table of Contents

I. Law, Ideology and Punishment.- 1. Introduction: Critique and Retrieval of the Liberal Ideal of Criminal Justice.- 2. Between Appearance and Reality: the Contradictions of Legal Ideology.- 1. Abstract Individualism versus Concrete Individuality.- 2. Individual Right versus Social Power.- 3. Juridical Ideology and the Philosophy of Punishment.- II. The Birth of Juridical Individualism: Hobbes and the Philosophy of Punishment.- 1. Introduction.- 2. Contradiction in the Hobbesian Philosophy of Punishment.- 3. Hobbes's Juridical Individualism.- 4. Hobbes and the Historical Development of the Philosophy of Punishment.- 5. Conclusion.- III. Purifying Juridical Individualism: Kant's Retributivism.- 1. Introduction.- 2. The Metaphysical Basis of Punishment.- 1. Two Concepts of Will and Freedom.- 2. Law and Justice.- 3. Coercion and Punishment.- 3. 'A Theory Built on Tension'.- 1. The Gap between Theory and Practice.- 2. Applying the Jus Talionis.- 4. Conclusion: Kant's Juridical Individualism.- IV. Rationalising Juridical Individualism - and the Rise of 'the Irrational': Hegel.- 1. Introduction.- 2. The Hegelian Justification of Punishment.- 1. Absolute Idealism and the Philosophy of Right.- 2. Coercion, Punishment and Proportionality.- 3.'From the Point of View of Abstract Right'.- 1. The Gap between Theory and Practice.- 2. Proportionality of Punishment.- 4. Reason, Reality and the Irruption of 'the Irrational'.- 1. The Nature of Criminality.- 2. The Measure of Punishment.- 5. Conclusion.- V. Abstract Right and the Socialisation of Wrong: Retributivism's English Decline and Fall.- 1. Introduction.- 2. Revising the Classical Tradition:T.H.Green.- 1. Green's Philosophy of Punishment.- 2. Contradictions in Green's Account.- 3. Juridical Individualism, Concrete Individuality and State Power.- 3. Revising the Classical Tradition: Bradley and Bosanquet.- 1. F.H.Bradley.- 2. Bernard Bosanquet.- 4. Conclusion.- VI. Juridical Individualism and State Power: Utilitarianism in the Twentieth Century.- 1. Introduction.- 2.The Triumph of Utilitarianism.- 1. The Utilitarian Context.- 2. A Utilitarian Morality of Punishment.- 3. Utilitarianism and Individual Right.- 1. Refining Utilitarianism and the 'Definitional Stop'.- 2. Retributive Punishment as a Legal Requirement.- 3. Two-Stage Approaches to Retributivism.- 4. Conclusion.- VII. Juridical Individualism, Individual Freedom And Criminal Justice.- 1. Introduction.- 2. Defending Freewill.- 1. Determinism and Freewill as Compatible Doctrines.- 2. The Incoherence of Psychological Determinism.- 3. Freewill, Determinism and Criminal Justice.- 1. Excusing Conditions.- 2. Mitigating Punishment.- 4. Conclusion.- VIII. Juridical individualism, State Power And Legal Reasoning.- 1. Introduction.- 2. Legal Reasoning and Criminal Responsibility.- 1. D.P.P. v. Majewski.- 2. R. v. Caldwell.- 3. Abbott v. The Queen.- 4. Analysis.- 3. Speaking the Language of Law.- 4. Conclusion.- IX. The Limits of Legal Ideology.- 1. The Philosophical - Historical Development of the Liberal Ideal of Criminal Punishment.- 2. The Return to Kant.- 3. The Ideal and the Actual.

Editorial Reviews

`Norrie's account of juridical individualism ... in the particular context of theorising about punishment strikes a clear chord with contemporary jurisprudence ... [and] makes a substantial and original contribution to significant areas of legal theoretical research ... I would judge his contribution to our understanding of the philosophy of punishment to be among the most important to emerge in the last twenty years. A most perceptive treatment of a socially and legally relevant issue. I am particularly impressed by the skilful textual analysis ... and ... ability to relate classical political philosophy to contemporary issues ... It is critical scholarship at the best, incisive and relevant. It makes us sit up and re-assess conventional dogma, and anything that does that deserves praise and wide exposure.' Michael Freeman, University College, London ` One of the most important contributions to the philosophy of of punishment in the last twenty years. ' Nicola Lacey, New College, Oxford ` His interpretations ... are always marked by penetration and acuity ..., are always interesting because they are carried out with great analytical skill and precision ... an author gifted with great critical skill ... a real and commendable achievement. ' (translation) Professor Dr Rainer Raczyk, Heidelberg (Goltdammer's Archiv Strafrecht 1991) ` a scholarly and interesting work ... His is a good, careful and serious book. It is worthy both for its scholarship and for its integrity in putting forward carefully worked out views which, in this postmodern age, are perhaps not fashionable. It has broadened the scope of the modern debate because it has respected that [liberal] tradition. ' Zenon Bankowski, University of Edinburgh (Modern Law Review 1992, 55) ` This is a provocative and challenging book, which deserves careful attention from anyone who takes seriously the question of whether, and how, our system of criminal justice can be justified ... One of the signal merits of this book ... is that it forces us to confront the uncomfortable possibility that we cannot hope to make rational normative sense of our existing legal institutions. ' Professor Antony Duff, University of Stirling (Criminal Law Review 1992)