Hart Punishment And Responsibility Essays In The Philosophy of Law Text

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This classic collection of essays, first published in 1968, has had an enduring impact on academic and public debates about criminal responsibility and criminal punishment. Hart offers an alternative to retributive thinking about criminal punishment that nevertheless preserves the central distinction between guilt and innocence. He also provides an account of criminal responsibility that links the distinction between guilt and innocence closely to the ideal of the rule of law, and thereby attempts to by pass unnerving debates about free will and determinism. Always engaged with live issues of law and public policy, hart makes difficult philosophical puzzles accessible and immediate to a wide range of readers. review from previous edition punishment and responsibility is still regarded as one of the cornerstones of both penal philosophy and the burgeoning field of criminal law theory in britain, australia, israel and north america. Is the inspiration for or counterpoint to almost all serious scholarship in english in the field published over the last 35 years. Hart oup, 2004 for this new edition, otherwise a reproduction of the original, john gardner adds an introduction engaging critically with hart's arguments, and explaining the continuing importance of hart's ideas in spite of the intervening revival of retributive thinking in both academic and policy circles.

Unavailable for ten years, the new edition of punishment and responsibility makes available again the central text in the field for a new generation of academics, students and professionals engaged in criminal justice and penal policy. This classic collection of essays, first published in 1968, has had an enduring impact on academic and public debates about criminal responsibility and criminal punishment. This classic collection of essays, first published in 1968, has had an enduring impact on academic and public debates about criminal responsibility and criminal punishment.

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John gardner: introduction 1: prolegomenon to the principles of punishment this classic collection of essays, first published in 1968, has had an enduring impact on academic and public debates about criminal responsibility and criminal punishment. He also provides an account of criminal responsibility that links the distinction between guilt and innocence closely to the ideal of the rule of law, and thereby attempts to by pass unnerving debates abou. More this classic collection of essays, first published in 1968, has had an enduring impact on academic and public debates about criminal responsibility and criminal punishment. For this new edition, otherwise a reproduction of the original, john gardner adds an introduction, which provides a critical engagement with the book's main arguments, and explains the continuing importance of hart's ideas in spite of the intervening revival of retributive thinking in both academic and policy circles. Unavailable for ten years, the new edition of punishment and responsibility makes available again the central text in the field for a new generation of academics, students and professionals engaged in criminal justice and penal policy. this classic collection of essays, first published in 1968, has had an enduring impact on academic and public debates about criminal responsibility and criminal punishment.

Always engaged with live issues of law and public policy, hart makes difficult philosophical puzzles accessible and immediate to a wide range of readers. the concept of punishment mdash its definition mdash and its practical application and justification during the past half century have shown a marked drift away from efforts to reform and rehabilitate offenders in favor of retribution and incarceration. Punishment in its very conception is now acknowledged to be an inherently retributive practice, whatever may be the further role of retribution as a or the justification or goal of punishment. A liberal justification of punishment would proceed by showing that society needs the threat and the practice of punishment, because the goal of social order cannot be achieved otherwise and because it is unfair to expect victims of criminal aggression to bear the cost of their victimization. Constraints on the use of threatened punishments such as due process of law are of course necessary, given the ways in which authority and power can be abused. Such a justification involves both deontological as well as consequentialist considerations.

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Philosophical reflection on punishment has helped cause, and is itself partially an effect of, developments in the understanding of punishment that have taken place outside the academy in the real world of political life. A generation ago sociologists, criminologists, and penologists became disenchanted with the rehabilitative effects as measured by reductions in offender recidivism of programs conducted in prisons aimed at this end martinson 1974. This disenchantment led to skepticism about the feasibility of the very aim of rehabilitation within the framework of existing penal philosophy. To these were added skepticism over the deterrent effects of punishment whether special, aimed at the offender, or general, aimed at the public and as an effective goal to pursue in punishment. That left, apparently, only two possible rational aims to pursue in the practice of punishment under law: social defense through incarceration, and retributivism.

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Public policy advocates insisted that the best thing to do with convicted offenders was to imprison them, in the belief that the most economical way to reduce crime was to incapacitate known recidivists via incarceration, or even death wilson 1975. Whatever else may be true, this aim at least has been achieved on a breathtaking scale, as the enormous growth in the number of state and federal prisoners in the united states some 2.3 million in year 2015, including over 3,0 on ldquo death row rdquo attests. At the same time that enthusiasm for incarceration and incapacitation was growing as the preferred methods of punishment, dissatisfaction with the indeterminate prison sentence mdash crucial to any rehabilitative scheme because of the discretion it grants to penal officials mdash on grounds of fairness led policy analysts to search for another approach. Fairness in sentencing seemed most likely to be achievable if a criminal sentence was of a determinate rather than indeterminate duration allen 1981. But even determinate sentencing would not be fair unless the sentences so authorized were the punishments that convicted offenders deserved. Thus was born the doctrine of ldquo just deserts rdquo in sentencing, which effectively combined the two ideas. 1 by this route the goals of incapacitation and retribution came to dominate, and in some quarters completely supersede, the goals of rehabilitation and deterrence in the minds of politicians and social theorists.

Concurrently with these broadly socio legal developments to which might be added the despair of practitioners that reached its peak with the police assault on rioting prisoners in new york rsquo s attica prison in 1972 philosophers were crafting their own arguments, reviving classic views associated with the names of kant and hegel to establish two principal ideas that fit surprisingly well with those reviewed above. First, philosophers urged that reformation of convicted offenders especially in its more medically inspired modes, vividly depicted in fictionalized form in anthony burgess rsquo s clockwork orange 1962 , is not the aim, or even a subsidiary aim among several, of the practice of punishment. Aside from being an impractical goal, it is morally defective for two reasons: it fails to respect the convicted offenders rsquo autonomy, and it flouts the offenders rsquo right to be punished for the wrongdoing he intentionally caused morris 1968. The oddity of a theory that affirms having and exercising a right to be punished has not escaped notice.

Second, justice or fairness in punishment is the essential task of sentencing, and a just sentence takes its character from the culpability of the offender and the harm the crime caused the victim and society card 1973, von hirsch 1985, nozick 1981: 366 ndash 74. Philosophers reached these conclusions because they argued that there were irreducible retributive aspects to punishment mdash in the very definition of the practice, in the norms governing justice in punishment, and in the purpose of the practice as well. As a result, the ground was cut out from under the dominant penal policy of mid century, the indeterminate sentence in the service of the rehabilitative ideal for offenders behind bars.

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Probation as the essential nonincarcerative alternative sanction received an expanded role, but release on parole came to a virtual end. In its place but as it turned out, only in theory was uniform determinate sentencing, which would avoid the follies of unachievable rehabilitative goals and ensure both incapacitation and even handed justice for all offenders. The culmination of this trend appears in the sentencing reform act of 1984, which spawned the united states sentencing commission and its federal sentencing guidelines.

The doctrine has not been without its critics, both in theory and in practice zimring 1977. But to date, no alternative approach shows any signs of supplementing the just deserts sentencing philosophy mdash no matter how preposterous in practice the claim that a given punitive sentence is justly deserved may be in most cases. There has been a third development concurrent with the two outlined above, far less influential in the formation of actual penalty policy even if it is of equal theoretical importance harding 1989. We refer to the reconceptualization of the practice of punishment arising from the work of michel foucault in the mid 1970s. Foucault invited us to view the practice of punishment under law as subject to general forces in society that reflect the dominant forms of social and political power mdash the power to threaten, coerce, suppress, destroy, transform mdash that prevail in any given epoch. And he also cultivated a deep suspicion toward the claims that contemporary society had significantly humanized the forms of punishment by abandoning the savage corporal brutality that prevailed in the bad old days, in favor of the hidden concrete and steel carceral system of the modern era foucault 1977.

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