The Combination of Retributivism With Another Theory - Research Paper Example

?Philosophy of Law Dworkin used the example of Riggs v. Palmer to demonstrate the differences between rules and principles. Discuss these differences and how they were on display in Riggs v. Palmer. Dworkin has tried to identify the criteria on which laws and court decisions are based. According to Dworkin, two are the factors most influencing policy makers and judges when having to establish or interpret, accordingly, legal texts: rules and principles. These two concepts are not identical, despite their similarities. Principles, as explained by Dworkin, ‘are related to the rights citizens have in a society’ (Raitio 292); from this point of view, principles can be characterized as ‘relative and not objective’ (Raitio 294), in opposition with rules which need to be objective and standardized as of their content. In this context, principles can be interpreted differently, under the influence of the personal perceptions of the individual involved, while no such option is available in the case of rules (Raitio 294). The differentiation between rules and principles is made clear when referring to their use by judges. Indeed, in such case, as Dworkin states, rules apply ‘in all or nothing fashion’ (Culver 144), meaning that a rule can either be applied in a specific case or not, there is no intermediate status (Culver 144). On the contrary, principles, even if judges use them, do not oblige the judge involved to take a specific decision. For this reason, Dworkin notes that principles only ‘contribute in judges’ decision’ (Culver 144); principles cannot define the content of a court decision just to influence the reasoning of the judge in regard to the case involved (Culver 144); also, the judge decides whether he will use a principle, and at what level, when developing a decision. Peczenik (2009) refers to another differentiation of rules and principles, as described by Dworkin. Rules and principles are based on different criteria of validity. More specifically, rules become valid after their verification ‘by a competent institution’ (Peczenik 246). Such term does not exist in the case of principles which are considered as valid only if they meet the following two conditions: ‘they must conform to a sense of appropriateness developed in the public over time and they must fit their institutional history’ (Peczenik 246). This means that principles cannot introduce ideas or set obligations, which are differentiated to the beliefs of individuals, at an average level, in regard to law and ethics. Also, principles cannot introduce ideas, which are in opposition with the statutes or the case law, as developed in the country involved (Peczenik 246). In legal rules, the existence of the above conditions is not examined. It is sufficient for a legal rule to have been verified by a competent institution, as explained above, in order to be considered as valid. The above terms of differentiation between rules and principles have been introduced by Dworkin and are valuable for understanding the conditions under which rules and principles are used in practice. The potential use of the view of Dworkin on rules and principles for explaining the decision of the court in the case Riggs v Palmer is examined in the study of Siltala (2000). According to the above researcher, the case Riggs v Palmer sets a critical dilemma: when, in the context of a case, a conflict is developed between a rule and a principle, which should be the decision of judge? He should uphold the rule or use the principle for developing a decision in regard to the specific case? In such cases, Dworkin ‘used to redefine the normative conflict’ (Siltala 46); in this way, ‘the weight of the two principles’ (Siltala 46) should be taken into consideration for deciding which of these principles should be preferred. The differences between legal rules and principles, as Dworkin has highlighted these differences, are clear in the case of Riggs v Palmer (1889). More specifically: in the above case, the following dilemma appears: shall a person be permitted to profit from his own crime? In the specific case, the right of the killer to claim The judge used the view of Dworkin in regard to justice: the decision of the judge in regard to a specific case should be such that the justice is promoted, even if the letter of the law does not, directly, leads to such solution. This means that the rule of law can be interpreted widely, ensuring that morals are not violated, especially if it is assumed that this practice it is aligned with the potential will of the legislator, if he would be aware of the conflict involved, meaning the conflict between the legal rule and the principles of law. Of course, such interpretation of the legal rules may be in opposition with other rules: for example, in this case, Elmer is punished twice for the same crime. However, such opposition should be allowed if a problem would be resulted in regard to the scope of the legal framework in its whole; if the court would decide that Elmer should not be punished twice for the same crime, then a precedent would be developed that would allow individuals to commit crimes for achieving a particular benefit, a perspective which would threaten the entire legal system. 2.) Compare and contrast the Utilitarian and Retributivist models of punishment. Utilitarianism promotes the idea that punishment should be imposed in order to ensure that the safety of the public is not threatened, i.e. for promoting the interests of the society (Corlett 37). The above view is in accordance with the view of Rawls of utilitarianism, who considered punishment as a means of securing the social order (Corlett 37). In order to understand the relationship between utilitarianism and punishment it would be necessary to refer to the scope of utilitarianism, as the particular concept was first developed by J. Bentham in the 19th century (Emanuel 2). The key aim of utilitarianism is ‘to maximize the net happiness of people’ (Emanuel 2); from this point of view, utilitarianism can justify punishment only if it is the only way for ensure the limitation of the pain resulted by a particular crime (Emanuel 2). Moreover, utilitarianism uses punishment in order to deter other people from committing a particular crime (Emmanuel 2). Such scope exists in regard to individuals. In other words, for utilitarianism, the punishment is used as a means of deterrence of crime, both at the level of society and at the level of individual, meaning the offender (Emmanuel 2). In this context, for utilitarianism, the offender should be punished in order to be deterred from committing the same crime or other crimes in the future (Emmanuel 2). Another scope of utilitarianism is related to the rehabilitation of the offender, meaning that through the punishment legislators and judges aim to educate the offender, or else, ‘to reform him’ (Emmanuel 2). Utilitarianism, as described above, is in opposition with retributivism, a theory that promotes a different idea on punishment; according to retributivists, such as Beccaria, punishment should be based on the intention of the offender to commit the crime; without such intention no punishment should be imposed, as retributivists state ((Beccaria, Newman and Marongiu 18). More specifically, retributivism, in opposition with utilitarianism, does not focus on deterrence, either personal or general (Emmanuel 2); rather, it focuses on the punishment of the person who violated the morals (Emmanuel 2). From a similar point of view, retributivists do not consider that the rehabilitation of the offender should be a priority when punishing the offender for having committed the crime (Emmanuel 3); rather they consider that punishment should ‘promote moral justice’ (Emmanuel 3). According to Tonry (2011) retributivism cannot be used alone for developing a sentencing system; it should be rather combined with other theories on punishment, such as the utilitarianism, in order to address the public interests more effectively (Tonry 87). Cavadino and Dignam (2007) promote a similar idea, noting that the key principle of retributivism that ‘offenders should be punished because they deserve it’ (Cavadino and Dignam 44) cannot lead to the control of criminal activity, resulting rather to the increase of social conflicts. In other words, the combination of retributivism with another theory related to this field, probably the utilitarianism is necessary in order for justice to be promoted without setting public safety in risk. Works Cited Beccaria, Cesare, Newman, Graeme and Marongiu, Pietro. On Crimes and Punishments. New Jersey: Transaction Publishers, 2009. Cavadino, Michael, Dignan, James. The Penal System: An Introduction. London: SAGE, 2007. Corlett, Angelo. Responsibility And Punishment. New York: Springer, 2006. Culver, Keith. Readings in the Philosophy of Law. Toronto: Broadview Press, 2007. Emanuel, Steven. Criminal Law. New York: Aspen Publishers, 2007. Peczenik, Aleksander. On Law and Reason. New York: Springer, 2009. Raitio, Juha. The principle of legal certainty in EC law. New York: Springer, 2003. Siltala, Raimo. A theory of precedent: from analytical positivism to a post-analytical philosophy of law. Portland: Hart Publishing, 2000. Tonry, Michael. Retributivism Has a Past: Has It a Future? Oxford: Oxford University Press, 2011. Read More