The Priority of Politics and Procedure over Perfectionism in Penal Law, or, Blackmail in Perspective

Criminal Law and Philosophy 3 (3):247-260 (2009)
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Criminal law theory concerns itself with the justification of punishment. Conflicting moral theories of punishment will be held in liberal democracies. The positive law therefore neither will nor should reflect exclusively a single moral theory of punishment. Like the institutions for making law, the institutions for enforcing it will cause punishments imposed to deviate from what pure moral theory might prescribe. These claims are illustrated by the debate over blackmail prohibition. The best rationale for prohibition is not the moral argument that blackmailers culpably cause harm, but the political argument that blackmailers threaten the state’s claimed monopoly on punishing crime.



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Political Liberalism.John Rawls - 1993 - Columbia University Press.
Political Liberalism.J. Rawls - 1995 - Tijdschrift Voor Filosofie 57 (3):596-598.
Two concepts of rules.John Rawls - 1955 - Philosophical Review 64 (1):3-32.
Punishment and Responsibility.H. L. A. Hart - 1968 - Philosophy 45 (172):162-162.

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