Cruelty in Criminal Law: Four Conceptions

Criminal Law Bulletin Vol. 51 No. 5 (2015)

Boston College Law School Legal Studies Research Paper No. 382

50 Pages Posted: 22 Sep 2015 Last revised: 14 Oct 2015

Date Written: September 21, 2015

Abstract

This Article defines four distinct conceptions of cruelty found in underdeveloped form in domestic and international criminal law sources. The definition is analytical, focusing on the types of agency, victimization, causality, and values in each conception of cruelty. But no definition of cruelty will do justice to its object until complemented by the kind of understanding practical reason provides of the implications of the phenomenon of cruelty.

No one should be neutral in relation to cruelty. Eminently, cruelty in criminal law, a human-created phenomenon, vigorously calls for responses in the form of preventive and corrective action on the part of private and public actors. It is in this sense that cruelty is a problem of practical reason, one of action preoccupied with its legal or moral obligations, rational grounds, value commitments, and actual consequences.

However, the connection between conceptions of cruelty and the implications practical reason can draw from the correct application of a conception of cruelty to phenomena in the world remains too detached to be able to capture and explain people's actual experiences both of seeing cruelty in the world and of confronting the question of what to do about cruelty and how to address its cultural and institutional aspects. Something is missing.

What is missing is the integration of conceptions of cruelty and the practical reason implications of detecting cruelty in the world into normative models which operate as meaning matrixes for cognition, meaning, and action. This Article undertakes this explanatory task through an exercise of reconstructing seminal philosophical ideas about cruelty. The result is that the four conceptions of cruelty are placed within three distinct normative models, which ultimately render intelligible legal conceptions of cruelty and legal reactions to it

Keywords: cruelty, mercy, punishment, criminal law theory, practical reason in law

JEL Classification: K10, K14, K33

Suggested Citation

Barrozo, Paulo, Cruelty in Criminal Law: Four Conceptions (September 21, 2015). Criminal Law Bulletin Vol. 51 No. 5 (2015); Boston College Law School Legal Studies Research Paper No. 382. Available at SSRN: https://ssrn.com/abstract=2663837

Paulo Barrozo (Contact Author)

Boston College - Law School ( email )

885 Centre Street
Newton, MA 02459-1163
United States
(617)552-4388 (Phone)

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