Abstract
The aim of this article is to demonstrate that the theory of changes in perspectives allows a different presentation of the problems which arise from a loss of recognition as an element of punishment, particularly in reference to others, the entire structure of the interaction is changed. Communicative conditions of moral discourses assume that every participant of the argumentation process takes place in all spheres of social life and can assume the perspective common to all other participants. The main task of criminal law is, then, the protection of elementary aspects of one’s role as a participant of interaction without which the chain of mutual recognition and understanding could be freely and at any moment infringed by any given participant of interactions, i.e. the protection of such rights.
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Notes
Such an understanding of punishment alludes to a well-known Aristotelian comment that: “The Penal Law is a Categorical Imperative … Even if a Civil Society resolved to dissolve itself with the consent of all its members—as might be supposed in the case of People inhabiting an island resolving to separate and scatter themselves throughout the whole world—the last Murderer lying in the prison ought to be executed before the resolution was carried out. This ought to be done in order that every one may realize the desert of his deeds, and that blood guiltiness may not remain upon the people; for otherwise they might all be regarded as participators in the murder as a public violation of Justice”.
“I-identity (personality)” is possible, according to Mead’s school, only in the context of the change of perspectives. “I-identity” stands here for another relation of interaction rather than, in the case of contractual relation, where it is an establishing relation in reference to the relation of recognition as the potentiality to conclude contracts.
It should be noted that Mead’s conception corresponds with social communication and, to a lesser extent, with intercultural communication.
“Thus, it seems to me that the institution of rights is grounded in, and rights are justified by, the requirements of social interaction. All social norms evolve out of the need of individuals to organize and coordinate their behavior, which requires them to know what to expect of others and what others expect of them as well as to have common purposes and goals and a shared understanding of these. In this process, among the norms that evolve are standards and values”.
Habermas accurately refers to Mead’s following comments: “If we assert our rights, we are calling for a definite response just because they are rights that are universal—a response which everyone should, and perhaps will, give. Now that response is present in our own nature; in some degree we are ready to take that same attitude toward somebody else if he makes the appeal. When we call out that response in others, we can take the attitude of the other, and then adjust our own conduct to it. There are, then, whole series of such common responses in the community in which we live, and such responses are what we term ‘institutions’. The institution represents a common response on the part of all members of the community to a particular situation. … One appeals to the policeman for assistance, one expects the state’s attorney to act, expects the court and its various functionaries to carry out the process of the trial of the criminal. One does take the attitude of all of these different officials as involved in the very maintenance of property; all of them as an organized process are in some sense found in our own natures. When we arouse such attitudes, we are taking the attitude of what I have termed a ‘generalized Other’”.
Mead writes here about Kantian universality of judgments, but this argument can also be applied to the universality of human rights.
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Wojciechowski, B. The Interchangeability of Perspectives Between the Victim and the Offender as an Element of Punishment. Int J Semiot Law 27, 277–290 (2014). https://doi.org/10.1007/s11196-013-9350-9
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DOI: https://doi.org/10.1007/s11196-013-9350-9