David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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Criminal Law and Philosophy 6 (1):31-45 (2012)
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
John Rawls (1971/2005). A Theory of Justice. Harvard University Press.
John Rawls (2009/2005). A Theory of Justice. In Steven M. Cahn (ed.), Philosophy and Rhetoric. Oxford University Press 133-135.
Samantha Besson & John Tasioulas (eds.) (2010). The Philosophy of International Law. Oxford University Press.
Michael Moore (2009). A Tale of Two Theories. Criminal Justice Ethics 28 (1):27-48.
Citations of this work BETA
Jukka Varelius (2012). Two Challenges for Dignity as an Expressive Norm. Criminal Law and Philosophy 6 (3):327-340.
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