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Why Justify the Criminal punishment ?

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发表于 2/2/2018 01:39:56 | 显示全部楼层 |阅读模式
本帖最后由 郭国汀 于 2/2/2018 02:14 编辑

Normally criminal punishment is justified by explaining that it serves such goals as retribution for the crime committed, deterrence of future crime, rehabilitation of the criminal, or incapacitation to keep him from committing further crime.[1]

The Theory of Justice is a contractarian theory.[2] The contract formed in the original position, however, is not real; it is a hypothetical contract, formed in an imaginary society or under circumstances which are imaginary or artificial.[3]Rawls' the principles of justice for a just, democratic, and constitutional society.[4]

      To summarize: Rawls has proposed a model, the original position, in which the principles of justice for a just, democratic, and constitutional society can be worked out under conditions which arguably are necessary for fair and objective decision-making. Important assumptions in the model are multiple contracting parties who will unanimously agree to the principles of justice under the veil of ignorance which conceals from them their own advantages and disadvantages, their place in society, and their own rational projects in life. Failure to achieve unanimous agreement will prevent adoption of a proposed principle of justice. Using strict rationality, the parties will accept or reject principles of justice on the grounds that those principles will tend or not tend to maximize their individual shares of the primary social goods upon lifting of the veil of ignorance. The parties also will want to adopt principles which will maximize their opportunities of avoiding or minimizing the worst disasters. Worst disasters would be those which would result in severe losses of the primary social goods. The primary social goods are those which are necessary to achieve any rational plan in life. Before adopting a principle of justice, the parties will examine it from the point of view of each of the representative positions in society which may be affected by that principle. Upon lifting of the veil of ignorance, a contracting party may occupy one of these representative positions. In that position he would not want to suffer a severe loss of the primary social goods.

Rawls contends that two principles of justice would be established in the original position:
      First: each person is to have an equal right to the most extensive
      basic liberty compatible with a similar liberty for others. Second:
      social and economic inequalities are to be arranged so that they are
      both (a) reasonably expected to be to everyone's advantage, and (b)
      attached to positions and offices open to all.[5]

Other principles adopted by the contracting parties, including principles for a just constitution, principles governing just legislation, principles for the rule of law and proper adjudication of disputes, and principles providing natural duties for individuals, all would be lexically subordinate to the first two principles of justice.[6]


The Goals of Criminal Punishment A Rawlsian Theory by Samuel J.M. Donnelly,Professor of Law, Syracuse University College of Law.41 Syracuse L. Rev. 741 (1990)  pages, 741
[1] H. PACKER, THE LIMITS OF THE CRIMINAL SANCTION 35-61, 134-45, 252-53, 296-301 (1968).
[2]  J. RAWLS, A THEORY OF JUSTICE 22-27 (1971), at 11-17. Rawls explains: The merit of the contract terminology is that it conveys the idea that principles  of justice may be conceived as principles that would be chosen by rational per-
      sons, and that in this way conceptions of justice may be explained and justi-
      fied .... Furthermore, principles of justice deal with conflicting claims upon
      the advantages won by social cooperation; they apply to the relations among
      several persons or groups. The word "contract" suggests this plurality as well
      as the condition that the appropriate division of advantages must be in accord-
      ance with principles acceptable to all parties. The condition of publicity for
      principles of justice is also connoted by the contract phraseology. Thus, if these
      principles are the outcome of an agreement, citizens have a knowledge of the
      principles that others follow. It is characteristic of contract theories to stress
      the public nature of political principles. Finally there is the long tradition of the
      contract doctrine. Expressing the tie with this line of thought helps to define
      ideas and accords with natural piety.
Id. at 16. To summarize, then, because Rawls' Theory of Justice may be conceived as a constructivism theory, it signifies a relation with four essential principles of justice: (1) it suggests a rationality of choice, explanation, and justification; (2) it suggests plurality and social cooperation; (3) it suggests the public nature of political principles; and (4) it suggests a tie with the long tradition of the contract doctrine.
[3] A Theory of Justice, at 16, 21.   
[4]  A THEORY OF JUSTICE, at 122-26 (original position model may be used as an analytic method for comparing conceptions of justice).
[5] A Theory of Justice. at 60.
[6] . See generally Rawls' exposition in Part Two: Institutions of his book A THEORY OF JUSTICE, at 195-391.


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