Rights Forfeiture and Punishment
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| Anteprima |
Given
that persons typically have a right not to be subjected to the hard
treatment of punishment, it would seem natural to conclude that the
permissibility of punishment is centrally a question of rights. Despite
this, the vast majority of theorists working on punishment focus instead
on important aims, such as achieving retributive justice, deterring
crime, restoring victims, or expressing society's core values. Wellman
contends that these aims may well explain why we should want a properly
constructed system of punishment, but none shows why it would be
permissible to institute one. Only a rights-based analysis will suffice,
because the type of justification we seek for punishment must
demonstrate that punishment is permissible, and it would be permissible
only if it violated no one's rights. On Wellman's view, punishment is
permissible just in case the wrongdoer has forfeited her right against
punishment by culpably violating (or at least attempting to violate) the
rights of others. After defending rights forfeiture theory against the
standard objections, Wellman explains this theory's implications for a
number of core issues in criminal law, including the authority of the
state, international criminal law, the proper scope of the criminal law
and the tort/crime distinction, procedural rights, and the justification
of mala prohibita.
