NCJ Number
80596
Date Published
1981
Length
48 pages
Annotation
This essay examines, in terms of criminal justice, the historical antagonism between utilitarianism as embodied in Baccaria's theories of maximum happiness for the greatest number of people and Kant's natural rights theory (each action must be judged in the context of the actor's autonomy and by ethical principles.) It then discusses John Rawl's theory of justice and its implication for the struggle between utilitarianism and natural rights theory.
Abstract
In progressing to the discussion of Rawl's revolutionary thinking on human rights and criminal law, the paper also reviews the theories of Bentham, a classical utilitarian, who recognized no concept of human rights in criminal law per se, espoused that punishment is only justifiable by the ends it produces for social good, and emphasized deterrence as the central issue in determining just sentences. The paper remarks on the influence of H.L.A. Hart as a pivotal figure within the tradition of liberal reform. Hart's proposals for decriminalization and his analysis of the principles of just punishment are described in particular as they point up the shortfalls of Bentham's utilitarian justification for punishment. Finally, Rawl's 'A Theory of Justice' (1971) is described as launching important jurisprudential rethinking of criminal law doctrine, policy, and practice. His basic analytic model is that moral principles are those that perfectly rational persons, in a hypothetical 'original position' of equal liberty, would agree to as the ultimate standards of conduct that are applicable to all. Since Rawl's concern is to apply this model to develop a theory of justice, he recognizes the existence of conflicting claims to a limited supply of general goods and offers a set of principles to regulate these claims. Given the persuasiveness of Rawl's model, the traditional antagonism between the natural rights and utilitarian positions becomes anachronistic. The human rights perspective becomes central in relation to decriminalization, mens rea, deterrence, prisons, capital punishment, sentencing, probation, parole, and institutions and principles of punishment under the criminal law. About 70 references are listed.