The Right to Be Punished
Markus D. Dubber
University of Toronto - Faculty of Law
This paper traces the evolution of the right to be punished from its origins in Fichte and Hegel to its transformation into a need for treatment at the hands of the rehabilitationists, beginning with K.C.F. Krause and K.D.A. Roeder in Germany and ending with American scholars like Sheldon Glueck and Herbert Wechsler.The rise and fall of the right to be punished illustrates the promise and failure of the enlightenment attempt to legitimize coercive state punishment in a society of autonomous agents. Originally, the right to be punished manifested the offender's equal status as an autonomous agent capable of conforming his conduct to the norms of the enlightenment community of rational persons. As such, the right to be punished lay at the heart of the enlightenment's effort to justify punishment as autonomous, i.e., as self- punishment.Rehabilitationism appropriated the right to be punished and converted it from a recognition of identity to the treatment of deviance. Instead of being entitled to punishment as an equal member of the community of rational agents, the offender became entitled to punitive treatment because he had revealed himself to differ from that community of punishers in some fundamental respect. As a result of the differentiation between punisher and punished to which rehabilitationism has contributed, the state's exercise of its punishment power today is both unchecked by empathy and unjustified by autonomy.
JEL Classification: K14
Date posted: April 17, 1998
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