The Punishment Jurist
Foundational Texts in Modern Criminal Law, Markus Dubber, ed., Oxford University Press (Forthcoming)
23 Pages Posted: 30 Oct 2012
Date Written: October 29, 2012
This is an essay on the critical history of the thought of the Victorian-era judge, Sir James Fitzjames Stephen. It discusses some of the themes in his major work, "The History of the Criminal Law of England." And it reflects on a cluster of questions involving criminal punishment: whether Stephen had a "theory" of punishment; if not how best to characterize his thought; and whether his views and understanding of the aims and functions of punishment remain relevant. The essay explores Stephen's positive and critical contributions, and it concludes that Stephen's major insight was methodological. His view is that the reasons for punishment cannot be separated from the obligations and the nature of the judicial office. He was neither a punishment retributivist nor a punishment consequentialist, but a punishment jurist.
Keywords: crime, punishment, history, theory, judiciary
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