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A System of Rights$
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Rex Martin

Print publication date: 1997

Print ISBN-13: 9780198292937

Published to Oxford Scholarship Online: November 2003

DOI: 10.1093/0198292937.001.0001

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Justifying Coercion: The Problem of Punishment

Justifying Coercion: The Problem of Punishment

Chapter:
(p.218) 9 Justifying Coercion: The Problem of Punishment
Source:
A System of Rights
Author(s):

Rex Martin (Contributor Webpage)

Publisher:
Oxford University Press
DOI:10.1093/0198292937.003.0010

This chapter begins with a brief characterization of punishment under law. The central claim is then made that punishment would be justified in a system of civil rights if (1) it prevents or at least substantially deters violations of rights while at the same time being necessary to this particular task (either in that no alternative which altogether dispenses with punishment can do the job at all or that none can do it as well). Of course, we realize that punitive sanctions often infringe rights of the violator; accordingly, we must also require (drawing here on the notion of the competitive weight of rights) that (2) the right protected is not outweighed by the right infringed by sanction and that it cannot be substantially better protected by a sanction that infringes a right of roughly the same weight (or, of course, one of even lesser weight). Thus, the important grounds for punitive sanctions in a system of rights are: overall necessity (as in 1 above), compatibility with rights, and relative deterrent effectiveness (as in 2 above).

On these same grounds, a policy of not punishing the innocent, of punishing only adjudged violators, would be incorporated in the background institutions,in particular, the trial system, that served to admit people, upon determination of their guilt, into the practice of being punished.

Keywords:   deterrence, justification, law, necessity, prevention, punishment, punitive sanctions, rights compatibility, trial system

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