Cover image for Punishment and freedom : a liberal theory of penal justice
Punishment and freedom : a liberal theory of penal justice
Brudner, Alan.

Personal Author:
Publication Information:
Oxford : Oxford University Press, c2012.
Physical Description:
xix, 336 pages ; 24 cm
Oxford monographs on criminal law and criminal justice
General Note:
Series title from dust jacket.


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Book 0345700 K5103 .B78 2012 Central Campus Library

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This book sets out a new understanding of the penal law of a liberal legal order. The prevalent view today is that the penal law is best understood from the standpoint of a moral theory concerning when it is fair to blame and censure an individual character for engaging in proscribed conduct.By contrast, this book argues that the penal law is best understood by a political and constitutional theory about when it is permissible for the state to restrain and confine a free agent.The book's thesis is that penal action by public officials is permissible force rather than wrongful violence only if it could be accepted by the agent as being consistent with its freedom. There are, however, different conceptions of freedom, and each informs a theoretical paradigm of penal justicegenerating distinctive constraints on state coercion. Although this plurality of paradigms creates an appearance of fragmentation and contradiction in the law, the author argues that the penal law forms a complex whole uniting the constraints on punishment flowing from each paradigm.

Table of Contents

List of Terms Usedp. xvii
Introductionp. 1
1 Punishmentp. 21
1 The Concept of Public Reasonp. 21
2 Public Reason as Formal Agencyp. 23
3 The Features of the Formalist Paradigmp. 28
4 Formalist Right and Wrongp. 35
5 Culpable Wrong and Formalist Punishmentp. 37
6 A Response to Critics of Retributivismp. 48
7 The Limits of Formalismp. 55
2 Culpable Mindp. 59
1 The Two Roles of Mens Reap. 60
2 Character, Choice, and Opportunityp. 63
3 A Legal Account of Mens Reap. 75
4 A Response to Objectionsp. 85
5 Conclusionp. 96
3 Culpable Actionp. 99
1 The Austinian View of the Actusp. 100
2 The Moral Account of the Actusp. 108
3 A Legal Account of the Actusp. 115
4 Inchoate Crimep. 120
5 Epiloguep. 130
4 Responsibility for Harmp. 131
1 Public Reason as Real Autonomyp. 131
2 The Features of the Real Autonomy Paradigmp. 137
3 What Does the Right to Author One's Moral Fate Entail?p. 141
4 Fault-Undifferentiated Crimesp. 150
5 The Novus Actus Interveniensp. 158
6 Conclusionp. 165
5 Liability for Public Welfare Offencesp. 169
1 What is a Public Welfare Offence?p. 169
2 Why is Subjective Fault Not Required for Public Welfare Offences?p. 173
3 What Principles of Penal Justice Apply to Public Welfare Offences?p. 178
4 Ignorance of the Lawp. 184
5 Conclusionp. 188
6 Justificationp. 189
1 Introductionp. 189
2 The Lesser Evilp. 193
3 Double Effectp. 197
4 Justification against Wrongdoersp. 205
5 Justification against Innocentsp. 223
7 Excusep. 233
1 The German Constitutional Court and the Luftsicherheitsgesetzp. 233
2 Exculpation and Exonerating Excusep. 235
3 Why Should Excusing Necessity and Duress Exonerate?p. 240
4 Excuse as Moral Analogue of Legal Exculpationp. 254
5 Excuse as Staying the State's Swordp. 262
6 Partial Excuse as Moral Analogue of Partial Exculpationp. 267
8 Detention after Acquittalp. 273
1 Requiem for a Defencep. 273
2 Why is Detention of the Innocent Insane Permissible?p. 277
3 Divergence of the Criteria for Insane Automatism and Diminished Respectp. 286
4 Toward a New Legal Definition of Disease of the Mindp. 290
5 Conclusionp. 293
9 The Unity of the Penal Lawp. 295
1 Introductionp. 295
2 The Interdependence of Formal Agency and Real Autonomyp. 297
3 Public Reason as Dialogic Communityp. 305
4 Dialogic Community in the Paradigmsp. 313
5 Epiloguep. 319
Conclusionp. 321
Bibliographyp. 329
Indexp. 333