A Human Right not to be Punished? Punishment as Derogation of Rights

Criminal Law and Philosophy 6 (1):31-45 (2012)
Abstract
In this essay, I apply international human rights theory to the domestic discussion of criminalization. The essay takes as its starting point the “right not to be punished” that Douglas Husak posited in his recent book Overcriminalization . By reviewing international human rights norms, I take up Husak’s challenge to imbue this right with further normative content. This process reveals additional relationships between the criminal law and human rights theory, and I discuss one analogy: the derogation by states of an individual’s human rights under specified conditions has certain similarities to the punishment by states of an individual who holds a right not to be punished. Along the way, I highlight the normative implications of defining a human right not to be punished under both generalist and specificationist perspectives on moral rights. Noting the similarities as well as the differences in the concepts of punishment and derogation, this essay aims to contribute to the exchange between theories of human rights and the criminal law
Keywords Criminalization  Human rights  Punishment  Derogation  General rights  Specificationism
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References found in this work BETA
Michael Moore (2009). A Tale of Two Theories. Criminal Justice Ethics 28 (1):27-48.
John Oberdiek (2008). Specifying Rights Out of Necessity. Oxford Journal of Legal Studies 28 (1):19.

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Joseph Raz (2010). Human Rights Without Foundations. In J. Tasioulas & S. Besson (eds.), The Philosphy of International Law. Oxford University Press.
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Marcus Arvan (2012). Reconceptualizing Human Rights. Journal of Global Ethics 8 (1):91-105.
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