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| Posted: 22 Apr 2011 11:41 AM PDT Thom Brooks, Newcastle University Law School, has published Hegel and the Unified Theory of Punishment. Here is the abstract. Hegel's theory of punishment has too often been understood as a retributivist position. This error is largely based upon a consideration of some comments in one section ("Abstract Right") in his Philosophy of Right. Instead, Hegel's theory is more innovative and compelling: he is perhaps the first to offer a "unified theory" of punishment bringing together elements of retribution, deterrence, and rehabilitation in a single, coherent theory. Such a view best accords not only with his full comments on punishment in the Philosophy of Right, but also his comments on punishment elsewhere in his system and even earlier work. Moreover, a unified theory of punishment is defended also by his earliest Anglophone defenders, the British Idealists. This essay defends this interpretation of Hegel's theory of punishment and why we should find it compelling. |
Download the paper from SSRN at the link.
The Resistance To Disorder In "Billy Budd"
Posted: 22 Apr 2011 11:27 AM PDT
Lawrence Michael Friedman, New England School of Law, has published Law, Force, and Resistance to Disorder in Herman Melville's Billy Budd in volume 33 of the Thomas Jefferson Law Review (2010). Here is the abstract.
The Herman Melville law and literature classic, Billy Budd, Sailor (an inside narrative), illustrates the choice between force and law as means by which to achieve public order in a community. In that story, Captain Edward Fairfax "Starry" Vere believes the law leads inexorably to the determination that the sailor Billy Budd must be tried and executed for causing the death of the ship's master-at-arms, John Claggart. Like other commentators - including Richard Weisberg and, more recently, Daniel J. Solove - I conclude that, within the context of the story, the law did not, in fact, dictate such a determination. Captain Vere had the discretion, in the circumstances, to choose between following the path of law or not. Relying upon the facts and law as Melville gives them in the story, I suggest an explanation for Vere's actions, if not necessarily a justification: Vere, by virtue of character and temperament, had a need for order in the midst of the creeping anxiety that disorder was near at hand. Vere's aversion to disorder both private and public precipitated his reliance upon force, rather than law, to prevent the disruption he feared might result from a failure to punish Billy for the death of the master-at-arms. This disruption may be seen as proxy for the larger currents of disorder that may disturb nearly any community. And though his decision to use force may have led to a return to the status quo condition of order on board the H.M.S. Bellipotent, the long-term impact of Vere's decision was not quite so clear. There are lessons to be drawn from that decision about the value of adherence to the rule of law, even when such adherence may not appear to be expedient.Download the article from SSRN at the link.
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