Consensual Punishment

Abstract

In the present study we scrutinize the historical development of a remarkable strategy to justify state punishment, conceived in the philosophy of the Enlightenment: the argument from the consent of the offender. We follow the development of this argument and its variants from Grotius to Hegel. Our particular interest lies in ascriptions of purely fictitious mental states to justify palpable moral or legal reactions. This investigation opens up a specific and illuminating perspective on the legal-philosophical theories of the investigated authors and their conceptual connections. In that way it also helps to properly grasp important aspects of the systematic problem of criminal justice.

Keywords

criminal justice | consensual punishment | contractualism | Grotius | Hegel | Enlightenment | Strafgerechtigkeit | Einwilligungstheorie der Strafe | Kontraktualismus | Aufklärung

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