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Negligence, Mens Rea, and Criminal Responsibility; 7. Punishment and the Elimination of Responsibility; 8.

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Changing Conceptions of Responsibility; 9. Postscript: Responsibility and Retribution.

Punishment and Responsibility: Essays in the Philosophy of Law by H. L. A. Hart (Paperback, 2008)

Du kanske gillar. Permanent Record Edward Snowden Inbunden. Spara som favorit. Skickas inom vardagar. Exile is useful precisely because it removes the wrong-doer from the sight of those who are angry. As we shall see, the Athenians often used extremely violent methods of punishment in their attempts to cure the community and to restore its peacefulness, but the notion that punishment cures the community does not necessarily require a turn to violence.

Tragedy itself reflects an awareness that the problem of anger can be addressed with words, and with attempts to restore friendship, as well as with exile.

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How then did the Athenians try to restore peace when real dramas of wrongdoing unsettled the city? How did the Athenians identify wrongdoers, negotiate the question of their desert, and then sentence them? When it came time to punish, the Athenians acted out of anger and to cure anger, but this does not mean that they acted in anger.

Rather, they interposed an extensive institutional system between the moment when an angry victim pointed to a wrong-doer and the infliction of punishment. The purpose of this system was to allow the citizens to convert a moment of private anger into a public decision crafted with a view to curing the community through a restoration of peace. But exactly how did the Athenians convert the anger of their citizen-prosecutors into public decisions about punishment?

First, it is important to grasp the basic institutional structure of the city. Athenian institutions were not neatly divided into legislative, executive, or judicial bodies as are the institutions of modern democracies. They were distinguished rather according to how citizens took part in them. Citizen men gathered en masse in the Assembly and on popular juries that never had less than members and might have as many as Or they participated as individuals holding one of the or so magistracies in the city. The high drama of Athenian punishment occurred when private citizens prosecuted one another and found themselves arguing their cases and their views of law, justice, and democracy before juries of their peers how often does any of us ever speak before of our fellow citizens, let alone or ?

But magistrates probably carried out the humdrum work of punishment in Athens. Let me, then, go over their administrative duties before I return to the courtroom trials. These magistrates with the help of their subordinates, slave and free could fine, arbitrate, and prosecute or preside at a trial.

The Council could act as a court and impose fines up to drachmae, but most officials were limited to 10 or 50 drachmae fines. Probably the same limits applied in arbitrations.

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These administrative powers were, in fact, quite important. Most male citizens would have served as magistrates at some point because most magistracies were filled by random lottery, carried a one-year term, and could not be held more than once. In contrast, even a relatively minor court case could carry a penalty of up to drachmae.


Here it is worth noting that women, just like the non-elite male citizens, could participate in the penal system both in trivial dealings with magistrates and as witnesses at arbitrations and as active participants in private arbitrations. They were not, however, allowed in jury trials except as defendants or as material proof, and if a woman were to wind up as a defendant in a court case, a male citizen would have to speak on her behalf.

The cases that actually came to trial would have been the flamboyant conflicts among high-powered men, and so the most charged as far as their potential to affect their city was concerned. They would have been the disputes in which it was most important that the citizenry, acting as a collective body of men, confirm its authority over the establishment of norms that would govern and shape life in the city.

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Let us turn, then, to those judicial dramas. How did a trial work? When a citizen brought a case to court, he had a dizzying array of procedures from which to choose, but we need only pay attention to two absolutely pivotal procedural distinctions: first, these was the distinction between public suits—whether brought as a graphe , phasis , endeixis , apagoge , eisangelia , or probole —and private suits or dikai. Second, there was the distinction between two methods of sentencing convicted wrongdoers. Private suits or dikai were heard before juries that had or citizens; penalties were smaller than in public cases and the bulk of the penalty was paid to the prosecutor like damages.

Nor did prosecutors in private cases risk any penalty for losing their prosecution. In contrast, public cases, and graphai in particular, were heard before juries of at least The penalty was much larger than in private cases. The stakes of prosecution were thus much higher in a public than in a private case. But the most important distinction between private and public cases hinges on the method of sentencing that predominated in each case.

Read about the evidence Plato Plat. The Athenians had two methods for sentencing wrongdoers at trial.

Either the law under which the defendant was charged prescribed the penalty or, after a conviction, both prosecutor and defendant had to propose a penalty and the jury, again without discussion, had to vote between the two options. The median voter theorem in rational choice theory has it that each litigant would aim to capture the imagination of the median voter and so would moderate his own extreme position for the sake of carrying the vote. The prosecutor would need to suggest a penalty that his audience would not find too extreme; the defendant, one that they would not find too lenient.

If Socrates had been willing to play by the rules and had made a serious proposal, what had started out as a contest between polar opposites, should have become rather an exercise in finding a middle of the road solution. After having had a chance to vent their anger and enmity, the litigants would be forced, by the procedure of timesis , to greater moderation. The anger that had inspired punishment would at last be channeled into a more restrained outcome oriented toward securing public peace and satisfying all parties, prosecutor, defendant, and community.

Significantly, the procedure of timesis bore a close resemblance to the practice of arbitration where each party had to offer a resolution proposal.

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Both dikai and graphai could be sentenced by either method, but the procedure of timesis was the more regular method of sentencing in dikai. For graphai it was more common to have sentences defined by law. Private cases thus bore a closer resemblance to the practice of arbitration than did public cases. Here vocabulary becomes important.

Thus, in private cases Athenian jurors and litigants cultivated their skills at justice understood as procedures for releasing, and then restraining, powerful negative emotions. If private cases were associated with such general ideas about justice, what symbolic force did public cases have? A graphe was always, from its inception, a case that was heard before a court, and never before an individual magistrate. These public cases were therefore those having to do with social disruptions that, the Athenians believed, the community needed to confront as a community.

Thus a conviction under this procedure was followed by the erection of official memorials of punishment, inscriptions in bronze or stone set up in public places for all to see. Public cases, then, were those, a raft of evidence suggests, that the Athenians thought needed especially to be written into social memory. Presenting such cases before large juries was a way of ensuring that the community would remember important conclusions reached about social norms.

The Athenians thus developed methods for responding to anger that either moderated it or else converted it into a public memory.

Punishment and Responsibility: Essays in the Philosophy of Law

A question for those who endorse such a view is what alternative response to criminal offending we should endorse. The next section considers two candidate answers. Abolitionist theorising about punishment takes many different forms, united only by the insistence that we should seek to abolish, rather than merely to reform, our practices of punishment. Classic abolitionist texts include Christie , ; Hulsman , ; de Haan ; Bianchi ; Golash ; and Boonin In this section we will attend to just two types of abolitionist theory.

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But it could be argued that this is a mistake. A restorative process that is to be appropriate to crime must therefore be one that seeks an adequate recognition, by the offender and by others, of the wrong done—a recognition that must for the offender, if genuine, be repentant; and that seeks an appropriate apologetic reparation for that wrong from the offender.

But those are also the aims of punishment as a species of secular penance, as sketched above.