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Offences and DefencesSelected Essays in the Philosophy of Criminal Law$
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John Gardner

Print publication date: 2007

Print ISBN-13: 9780199239351

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780199239351.001.0001

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Crime: In Proportion and in Perspective

Crime: In Proportion and in Perspective

(p.213) 11 Crime: In Proportion and in Perspective
Offences and Defences

John Gardner

Oxford University Press

This chapter develops one aspect of the ‘pluralistic’ defence of punishment foreshadowed in Chapter 10. It focuses on state punishment as a ‘displacement’ of non-state punitive practices such as feuds, vendettas, and lynchings. The argument is that such non-state reactions, while often excuses, are apt to get out of hand and hence not to be justified. The task of state punishment, under this ‘displacement’ heading, is to substitute a justified reaction for a merely excused one, by taking the heat out of the situation and/or protecting the offender from his or her enemies. The importance of this theme for an understanding of justice, proportionality, and criminal culpability (or blameworthiness) are considered. Some doubt is cast on the continuing ability of the state to perform its displacement, and hence on the continuing defensibility of state punishment.

Keywords:   criminal law, punishment, state, crime prevention, retribution, responsibility, proportionality

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