UNIVERSALITY OF PUNISHMENT Edited by Ant PDF

Unità del sapere giuridico
14 Quaderni di scienze penalistiche e filosofico-giuridiche

ANTONIO INCAMPO is Full Professor of Dipartimento di Giurisprudenza We only have to consider the ius commune
Philosophy of Law at the University of Bari Università degli Studi di Bari “Aldo Moro” of tenth-century continental Europe (or
“Aldo Moro.” In the past, he was Director of the ius gentium of the Romans) to realise
the Department of Criminal Law, Criminal that the concept of law has historically
ed. by A. Incampo and W. Zełaniec

Procedural Law and Philosophy of Law at the been undergoing an irreversible process
University of Bari, and President of the Degree of maturation, particularly intense in the
Courses of the Second Faculty of Law at the twentieth century, towards rational universality.
same University. He is author of numerous One central goal of contemporary law,
essays on philosophy and semiotics of legal however, which is of paramount importance
language. Among his major works are: Sul to the studies in this volume, is that the law
Fondamento della Validità Deontica. Identità should not only be supra-national, but also
Non-Contraddizione (Bari, 1996), Atto e universally enforceable. Every nation has
Funzione. Sistema di Deontica Materiale A obligations to other nations, inevitably with
Priori (Bari, 1997), Validità Funzionale di Norme the rise of the modern state, which are not
(Bari, 2001), Filosofia del Dovere Giuridico restricted to the defence of national borders,
(Bari, 2003, 20122), Ricerche di Filosofia del and which could potentially involve the
Diritto, with A.G. Conte, P. Di Lucia, G. Lorini, W. use of force in defence of the common
Zełaniec (Turin, 2007), Metafisica del Processo. good irrespective of sovereignty or national
Idee per una Critica della Ragione Giuridica borders. In this way, the law is increasingly
UNIVERSALITY OF PUNISHMENT
(Bari, 2010), Verità e Processo Penale, with “Let us be sacrificers, but not butchers, Caius.” becoming a true “nómos of the Earth.”
V. Garofoli (Milan, 2012), Herbert Schambeck. What are the issues? Paradoxically, while
Sein und Sollen: Grundfragen der Philosophie the law is supra-national in its intent and
des Rechtes und des Staates, with H.F. Köck, William Shakespeare, Julius Caesar, II, 1 significance, that is not how penal courts
C. Hermida del Llano, A. Szmyt (Berlin, 2014). around the world work. Rights may be
universal, but the means and methods of
punishment are not. While there is a general
international consensus concerning the
WOJCIECH ZEŁANIEC teaches philosophy unlawfulness of certain acts – for example,
at the University of Gdansk´ (Poland). In the genocide or war crimes – the diverse
past, he has carried out research at the
International Academy of Philosophy in the
Principality of Liechtenstein, SUNY in Buffalo
UNIVERSALITY justice systems do not deliver a coherent
response when it comes to punishment.
The studies in this volume all arrive at the
OF PUNISHMENT
NY and the Julius Maximilian University in same basic conclusion: progress in the
Würzburg, Germany. He has also taught at universalization of law presupposes penal
Czestochowa
˛ (Poland), Würzburg, Zielona justice based on the fundamental right to
Góra (Poland), Istanbul, Santiago de Chile. human dignity – it is unthinkable to have
His most recent work includes: On a Value edited by Antonio Incampo and Wojciech Zełaniec laws based on human rights enforced
of Eccentricity (in Rivista di Estetica, 2014); by a totally inhumane penal system.
An Example of the “Synthetic A Priori:” On
How It Helps Us to Widen Our Philosophical
Horizons (in Semiotica, 2013); Create to Rule. ISBN 978-88-6611-255-6 Dust jacket:
Studies on Constitutive Rules (Milan, 2013); Herbert Boeckl, Apokaliptische Reiter ,1952–1960
Truth-Value and Self-Reference. Against the € 99,99 CACUCCI EDITORE (Engelkapelle, Abtei Seckau)
Spectre of the ‘Revenge Liar’ (Milan, 2013).
BARI
Quaderni di scienze penalistiche e filosofico-giuridiche
Collana diretta da
Antonio Incampo e Vito Mormando
Comitato scientifico
Angiola Filipponio, Vincenzo Garofoli, Heribert Franz Köck, Mariano
Menna, Francesco Palazzo, Carlo Enrico Paliero, Luigi Pannarale,
Otto Pfersmann, Aldo Regina, Adolfo Scalfati, Herbert Schambeck,
Giorgio Spangher, Gunther Teubner, Wojciech Żełaniec.
Comitato di redazione
Marilena Colamussi, Enzo Dell’Andro, Francesco Di Renzo, Massimo
Leccese, Giuseppe Losappio, Vincenzo Bruno Muscatiello, Lucia Iandolo
Pisanelli, Maria Antonella Pasculli, Porzia Teresa Persio, Guglielmo
Siniscalchi, Maurizio Sozio, Nicola Triggiani, Miranda Zerlotin.
I volumi inseriti nella collana, ritenuti preliminarmente ammissibili dai

Direttori con l’ausilio del Comitato scientifico, sono sottoposti alla
revisione tra pari [peer review] secondo i regolamenti attualmente
vigenti per le pubblicazioni scientifiche.
Universality of Punishment
edited by
Antonio Incampo and Wojciech Żełaniec
Cacucci Editore
Bari
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Contents 5
Contents
Introduction p. 7
I.
WHAT PUNISHMENT?
Salvatore Amato, Criminal Punishment in Crisis » 15
Matthew H. Kramer, Retributivism in the Spirit of Finnis » 29
Giuseppe Lorini, Revenge as Universal Legal Structure vs.

Revenge as Individual Legal Institution » 61
Marek Piechowiak, Plato’s Conception of Punitive Justice » 73
Gregorio Robles, The Communication Theory of Law and

the Juridical Coercion » 97
Maurizio Sozio, What Punishment in a “Brave Neuro World”? » 107
Leo Zaibert, Justifying Incarceration » 135
Wojciech Żełaniec, Now You Know: The Educative Purpose

of Punishment » 155
II.
UNIVERSAL JUSTICE
Diane Bernard, Claims to Universality, an Obstacle to
International Criminal Justice? » 173
Hope Elizabeth May, Virtue Jurisprudence and the Function

of Pain in International Criminal Law » 187
Maria Antonella Pasculli, Some Reflections on Restorative

Justice in Searching for Universal Justice » 215
Damien Scalia, The Illusion of Universality in International

Criminal Law » 231
6 Universality of Punishment
III.
PUNISHMENT AND HUMAN RIGHTS
Cristina Hermida del Llano, The Universality of Human
Rights and the Universality of Punishment p. 251
Antonio Incampo, Don’t Kill Cain: Towards a Theory of

Mesofacts and Punishments » 263
Heribert Franz Köck, Universality of Punishment and the

Common Good of Mankind: Some Considerations of
Principle » 277
Guglielmo Siniscalchi, Escape … to Alcatraz: Rechtsgefühl,

Punishment, Prison Movies » 309
Acknowledgements » 329
About the authors » 331
Index » 333
Introduction
It is enough to think of the ius commune of tenth-century

continental Europe (not to mention the ius gentium of the
Romans) to realise that the concept of law has been undergoing
an irreversible process of maturation towards rational universality,
at least on the level of ideas, a process which has been
particularly intense in the twentieth century. The stage currently
reached is best characterised by the three predicates that we
shall attempt to clarify below:
Supra-statutory law. The expression is taken from the title
“Statutory lawlessness and supra-statutory law” of a famous paper
by Gustav Radbruch (Gesetzliches Unrecht und übergesetzliches
Recht, in “Süddeutsche Juristen-Zeitung,” 1946), wherein
“supra-statutory” translates “übergesetzliches.” What is its
significance? It is best expressed in the thesis that a law (statute,
Gesetz) is not by itself the law (Recht). To refer to a decision by
the German Federal Constitutional Court of 1973, “law does not
simply coincide with the totality of written statutes” (drawing on
Article 20 (3) of the German Constitution). 1 The conclusion
leaves no choice: the crimes of the Third Reich, albeit deriving
from the statutes of that State, are crimes nonetheless. This is
impossible to revert: either there is law or there are Nuremberg
laws and the Wannsee Protocol, but not both, because law by its
very concept is irreconcilable with all forms of genocide.
Law is supra-national. The twentieth century saw the
demise of the dogma of the unrestricted sovereignty of the State.
The paradigm that had previously held sway located the human
being exclusively within the realm of the State, but this now
belongs to the past, together with the underlying Hegelian
1
“Das Recht ist nicht mit der Gesamtheit der geschriebenen Gesetze
identisch.” BVerG E [Entscheidungen des Bundesverfassungsgericht], 34,
269 (287), 1973.
conception of the “objective spirit” in which the State is equated

with God. In particular, after World War II, the idea was
accepted that the good of humanity is best not left to the
discretion, or the tender mercies, of the legislative powers of
single States, and that its safeguarding requires the concurrence
of the entire international community. Human rights, having
gained a wide-reaching, if not universal, recognition and having
passed into many national constitutions, are transformed into
“fundamental rights” with concomitant instruments of legal
protection. One of the high points of the new age of rights is the
Universal Declaration of Human Rights, proclaimed by the
United Nations in 1948. It is due to this declaration that the
debate on human rights has since continued to acquire an ever
more objective meaning. The human being is now the source of
obligations imposed on the States.
Contemporary law has, however, a third aspect, which is
perhaps the most important one for the essays in this volume.
Even earlier than the twentieth century, the universalist concept
of law was supported by a penal system of a no less universalist
colouring which presupposed both the concept of a supra-
statutory law and a call for supra-national procedures necessary
for committing several States, their sovereignty notwithstanding,
to a defence of human rights. In other words, law today is not
just supra-national, but also universally enforceable.
The Nuremberg and Tokyo trials, immediately after World
War II, were the very first manifestations of a new international
penal system which rested on the assumption that certain crimes
need not be in conflict with written laws in order to be
recognised as crimes. On the contrary, so the assumption went,
such crimes have always been an unspoken part of a law already
in force that prevails over the laws of a single State. This is the
sense of the Preamble to the Universal Declaration of Human
Rights, in the third paragraph of which there is the suggestion
that the member States of the UN are subjected to precise
conditions of justice, conditions that are part of the contents of
treatises and other sources of international law. Underlying this
there is the general principle that every State has obligations to
Introduction 9
other States, obligations which are not restricted to the defence

of borders and related issues – as has become inevitable since
the rise of the modern State – but which also imply the use of
force in the defence of the common good of humanity beyond
national borders, and the limits of the sovereignty of the single-
nation State.
An offence against human dignity is an offence against the
international community, and so it is the international community’s
concerted effort that is required for legal action against such an
offence. This legal action would require international courts of
law assembled independently of the territorial competences of
each single State. The courts of Nuremberg and Tokyo, created
by the Allies at the end of the war, were not in any obvious way
founded on the presupposition of such an independence. It has
only been in the post-cold war era that the conditions have
matured for the narrative of a truly “cosmopolitan law” to take
root, touching all nations. Thus, from a certain moment onwards,
law has begun to become a true “nómos of the Earth.”
So far so good. But, obviously, there are issues. What are
they specifically?
Let’s take a paradox as our point of departure. Law is supra-
national in its intent and significance, but the ways in which
penal courts around the world work are not. The rights are
universal, the methods of punishment are not. While there is a
broad consensus on the unlawfulness of certain crimes, (for
instance, war crimes, genocide and the like), the diverse justice
systems do not deliver a coherent response to these types of
crime on the level on punishment. The essays in this volume
shed light on three types, at least, of incoherence: (i) political
incoherence (H.F. Köck, C. Hermida del Llano), (ii) normative
incoherence (D. Bernard, A. Pasculli, D. Scalia), (iii) conceptual
incoherence (S. Amato, G. Lorini, G. Robles, M. Sozio, L.
Zaibert, W. Żełaniec).
From the political point of view, it has become easier to call
into being special tribunals in the case of local conflicts (e.g.
Yugoslavia in 1993, Rwanda in 1994, Sierra Leone in 2002)
rather than permanent courts vested with universal jurisdiction.
Such conflicts are ones in which no permanent members of the

United Nations Security Council are involved and thus they are
safe from the risk of having to prosecute citizens of those States,
officials, military, or even members of their governments. It
comes as no surprise, therefore, that the International Criminal
Court (Statute adopted in 1998 and in force since 2002) has not
yet found full acceptance in many countries, including the USA,
Russia, China and India.
If the premises for creating such courts are political, the
consequences are purely legal. As Köck has observed, it is a
contradiction that, in an international community based on the
rule of law, a party denounces the impartiality of courts and
asserts, as does the USA: “We want to ensure that our nationals
are dealt with by our system of law and due process.” This
paradoxical situation damages the very concept of law. The law
which the United States claims to recognise is evidently not
international law as applied and interpreted by the international
community, nor is it law as understood and practised in the
United States, if the fundamental principle of the neutrality of
the judge is abandoned.
On the normative level, too, there are considerable differences
in the degree and kind of punishment, as well as cases of
incoherence between international law and the legislation of
several States, and within the latter themselves. There is the
purely indicative criterion, adopted by various international
courts, of referring a particular crime to the penal code of the
State on whose territory the crime has been committed, but there
have been no attempts, as yet, to harmonise these codes. The
International Criminal Code, for instance, does not acknowledge
the death penalty in its articles, whereas various national penal
codes do. Likewise, not all States punish atrocious crimes, such
as genocide, in the same way.
Conceptually, the punishment of incarceration is in crisis,
too. Intended, during the Enlightenment and in the Napoleonic
Code, to replace all forms of corporeal affliction, it turns out to
be ineffective when assessed against the scope of redemption
frequently employed for its justification. And not only because
Introduction 11
the whole category of criminal liability, which has only just

begun to acknowledge, despite the advances of neuroscience,2
the criminogenic influence of the incapacity to regret and repent,
together with the traditionally more popular concept of infirmity
in Civil Law, is ripe for revision. But also because of the normal
mechanisms of incarceration: a person who has just served her
time in prison is more than likely to commit new crimes.
Serving a prison sentence seems subject to a legal logic which is
different from, and independent of, that which the judge obeys
in pronouncing her abstract verdict. Given what is likely to
happen to the convict during incarceration, she is liable to leave
prison more vulnerable to the lures of crime, marginalised and
alienated in society at large. So, if incarceration is not an
effective means of preventing ex-convicts from recidivism, what
else could be its use (cf. the contribution by W. Żełaniec)? As
Foucault says, it is not certain that criminal justice is interested
in justice. It could just be a mechanism for controlling life, only
masquerading as justice.
How to respond to all this, then? The replies provided here
(C. Hermida del Llano, A. Incampo, H.F. Köck, M. Kramer, H.E.
May, M. Piechowiak, G. Siniscalchi) all arrive at the same basic
conclusion: all progress in the universalisation of law presupposes
a criminal justice system based on the dignity of the person. It is
unthinkable that a law based on human rights should be propped
up by an inhumane penal system. So we can understand why
Platonic-Aristotelian thought is experiencing a renaissance,
while the notion that punishment, typically conceived of as
incarceration, should aim primarily at retribution and deterrence,
is in crisis.
Two new essential guiding principles have emerged from
the recent developments in the international criminal justice
system. The first concerns “restorative justice,” thanks to which
not only the criminal herself is rehabilitated, but also the entire
environment in which the crime was committed achieves
2
Just think of Stephen J. Morse and Adina L. Roskies (eds.), A Primer
on Criminal Law and Neuroscience, Oxford University Press, Oxford, 2013.
restoration and reconciliation both with itself and with the

criminal. The second concerns the prominent place occupied by
forgiveness in the criminal justice system. It is significant that
the Rome Statute of the International Criminal Court, in Article
53, authorises the prosecutor to decide whether to continue or to
stop an investigation on the basis of a balance of good between
justice, on the one hand, and the preservation of humanity as the
supreme value, on the other.3 In many cases it is best not to
press for justice too hard if the crimes can be pardoned and
peace preserved. Such a balance of good warrants a better
implementation of the Kantian principle that the humanity of
everyone of us should be treated as not merely a means but also
as an end.
Bari/Gdańsk, February 2015
Antonio Incampo and Wojciech Żełaniec
3
We refer, in particular, to the second paragraph of Article 53: “[…] the
Prosecutor concludes that there is not a sufficient basis for a prosecution
because […] a prosecution is not in the interests of justice, taking into
account all the circumstances, including […] the age or infirmity of the
alleged perpetrator.”
Salvatore Amato 13
I.
WHAT PUNISHMENT?
Salvatore Amato 15
Salvatore Amato
Criminal Punishment in Crisis
With regard to criminal punishment, the only thing which

has always been universal is suffering. The reasons for imposing
it, those entitled to execute it, the conditions that justified it,
none were universal, but the suffering had to be evident,
heightened and public. For little more than a century mankind
has raised questions about euthanasia, it has been concerned
with ensuring a “good death,” and yet it has been striving to
deliver a “bad death,” the worst possible kind, for thousands of
years. Saint Isidore of Seville, in that great cauldron of curiosities
from Late Antiquity, the Etymologiae, meticulously lists the tools
used in executing punishment (compedes, peducae, verbera,
anguilla, fustes, vectes, virgae, ungulae, eculeus ...) and then
explains that convicts can die in different ways, and in very
cruel ones; for example, death by drowning, being burnt alive,
killed by cold and hunger, or even left at the mercy of dogs and
wild animals.1 Several centuries later, Agrippa D’Aubigné in Les
Tragiques enumerates with chilling casualness a long litany of
people sentenced to death: Dubourg burned alive, Cranmer
burned in London, Gardiner sent to the stake in Lisbon, Venot
executed in Paris, De Mollio strangled in Rome. Then D’Aubigné
mentions irons, tongs, fires, knives, ropes, all the horrendous
tools and instruments with which “les sévères prevosts, choisissans
les tourments” and “c’est une faveur” to sprinkle gunpowder
over the bodies of those sent to the stake, so as to speed up
death.2 Saramago imitates him with a long and dramatic list of
people who have been crucified, disembowelled, beheaded, flayed,
gored, buried alive, and sawn into pieces.3
1
Isidoro di Siviglia, Etymologiae sive Origines, 2004, IV, pp. 624–631,
XXVII, pp. 34–35.
2
Agrippa D’Aubigné, Les Tragiques, 1616, IV (Les feux).
3
José Saramago, O Evangelho segundo Jesus Cristo, 1991, p. 369.
Since the Age of Enlightenment, as Foucault explains,4 we

have progressed from the public splendour of torture to the
hidden impact of the prison cell. There are many historical
limitations and ideological misrepresentations in this reconstruction.
It is not by any means true that the Napoleonic Code of 1810
abolished all forms of corporal punishment. 5 Foucault himself
loved to describe his work not as a tool for seeing better, but for
fighting better. However, it is undeniable that it was as a result
of the new sensibility of the Enlightenment that the ostentation
of suffering appeared absolutely incompatible with the cultural
sensitivities of a civilized nation. Due to the cruelty of the penal
system, “law almost ignores rights” and this is the idea which
seeps through Victor Hugo’s entire work: “on one side is penalty,
on the other humanity. Philosophers protest, but it will take
some time yet before the justice of man is assimilated.”6
The invention of prisons shifts suffering from the laceration
of the body to the devastation of the soul. Prisons have the task
of hiding the offenders, keeping them in isolation and imprisoned
in a cell along with the punishment, which becomes the invisible
collection of many singular, unpredictable and indefinable
deprivations. Even before Foucault, Sade, Nietzsche and Baudelaire
had already denounced what seemed to them a moral weakness:
that the execution of the punishment now took place in secret,
losing every emblematic and representative element, to take on a
solitary and administrative role. Camus denounces it with
extreme effectiveness: we must kill publicly or confess that we
no longer feel in a position to kill. 7 If society has to hide
detention and punishment and make suffering invisible, then this
means that it does not believe in what it does. What right does a
society have to exercise scheduled and institutionalised violence
against one of its citizens, if it then hides its methods in an
4
Michel Foucault, Discipline & Punish: The Birth of the Prison, 1995.
5
Punishments such as branding, the wheel, amputation of the hand, as
well as, obviously, the death penalty were still considered.
6
Victor Hugo, The Man Who Laughs. A Romance of English History,
1889, part. II, Book IV.
7
Albert Camus, Reflections on the Guillotine, 1959.
Salvatore Amato 17
attempt to convey them as necessary but humanely indifferent

duties? It is only through the public act, however cruel and
abhorrent the ritual may be, that society as a whole takes
responsibility for the suffering inflicted, ideally by questioning
itself about guilt and punishment.
I am thinking of the elegant reflections of J. Ellul8 and R.
Callois9 on the figure of the executioner. Western culture has, for
centuries, projected the ambiguous role of punishment on to the
executioner. It is both a sacred yet despicable act, a necessary
yet wretched one, which can only do justice through violence.
Therefore punishing also means watching those who suffer, it
means being both an individual and collective part of this ritual
and this torment. No one can withdraw, no one can claim not to
have taken part in the event. 10 As with stoning, everyone
assumes responsibility for the death, because through the public
display of punishment everyone involved experiences the anxieties
and doubts inherent in claiming to do justice. A society that
hides punishment behind a neutral method and an abstract
procedure is one which can no longer tolerate its own actions.
Balzac has Sanson, the executioner of the French Revolution,
say: justice is ashamed of my work, and do I not work for
justice?11
Today, painless punishment suggests replacing the executioner
with a medical professional, in the only corporal punishment
remaining in the West: the death penalty. Unlike Balzac’s
Sanson, medical associations don’t consider themselves to be
the embodiment of justice and refuse to become officials in a
ritual that is no less dramatic just because chemistry has taken
the place of “irons and fires.” We are thus faced with a dead-end
that somehow reflects the difficulty of restoring a meaning to
8
Jacques Ellul, Trahison de l’Occident, 1975.
9
Roger Callois, Instinct et société. Essais de sociologie contemporaine,
1964.
10
René Girard, Violence and the Sacred, 1977.
11
Honoré de Balzac, Mémoires pour servir à l’histoire de la Révolution
française, par Sanson, exécuteur des arrêts criminels, pendant la Révolution,
chpt. I, p. 1.
punishment. As the US Supreme Court constantly reiterates,

only the intervention of medical professionals guarantees that
the death penalty is not “cruel and unusual.” We cannot expect
medical practitioners to go against their beliefs and the ethics of
their profession. “Without the involvement of physicians and
other medical professionals with special training in the use of
anaesthetic drugs and related agents, it is unlikely that lethal
injection will ever meet a constitutional standard of decency. But
do we as a society want the nation’s physicians to do this? We
believe not.”12
So we could say that prisons are not given the task of
solving the problem of punishment, but of circumventing it. Do
they really succeed? On the one hand, prisons hide suffering, but
they can’t avoid it, they just break it down into many individual
forms of affliction and loss (family life, sex life, the ability to
communicate, full relationality, privacy, etc.). These losses affect
prisoners differently and randomly, and are often exacerbated by
overcrowding, the loss of dignity which unemployment brings
and by the lack of medical care. Looking at the statistical data
regarding the high number of suicides and the forms of self-
injury in prisons,13 it almost seems that corporal punishment has
not been abolished, but has simply been shifted. Offenders are
induced to harm themselves, in other words, to take the place of
the executioner. We find, however, no evidence of remorse or
repentance in their actions, only an overload of despair that
weighs heavily on the conscience of our society. On the other
hand, prisons uphold punishment, but are not in agreement with it,
and so take refuge behind the prospect of the social rehabilitation
of the prisoner, resulting in a paradoxical situation. That same
prison which marginalises and alienates the prisoner from
12
Gregory D. Curfman, Stephen Morrisey and Jeffrey M. Drazen, Physicians
and Execution, in ‘The New England Journal of Medicine,’ 1 (2008), p. 404.
13
Luigi Manconi and Andrea Boraschi, Quando hanno aperto la cella
era già tardi perché … Suicidio e autolesionismo in carcere (2002–2004), in
‘Rassegna Italiana di Sociologia,’ 1 (2006); Keith Lloyd, Suicide and Self
Injury in Prison: A Literature Review, in ‘Home Office Research Studies,’
115 (1990).
Salvatore Amato 19
society should also have the task of preparing him/her for

reintegration in the community. This contradiction emerges very
clearly once again in practice: prison sentences increase the
tendency to commit crime and the chance of re-offending.14
We can conclude by saying that, even though the term of
imprisonment is legal, the way in which it is carried out and its
effects generate a kind of ostentatious illegality that criminal law
takes for granted, whilst it cannot be approved by penitentiary
law. Ferrajoli speaks of a widespread repressive system, which
often issues extremely severe punishments in both courts of law
and prisons. Yet when they are to be implemented these
sanctions are softened and adapted through a system of benefits
and leniency.15 Penitentiary law reinterprets and relativises the
logic of criminal law, favouring merits over faults and rewards
over punishments. For this reason sentences tend to be considered
flexible hypotheses (no fixed sentence) which are up for discussion
in the phase of enforcement, forming a continuous “trial” for the
offender, sprinkled with continual periods of checks and controls
of an undetermined nature (i.e. permits, licences and visits). An
ongoing verdict, of which the sentence is merely one episode.
The central role of punishment is devalued and is re-evaluated
throughout its array of marginal developments, i.e. the emergence
of individual occasions for checking on the behaviour of the
prisoner during detention.
In this way “trading places” 16 are formed where different
models and purposes overlap and merge. Rehabilitation and
social reintegration of offenders are administrative and not penal
problems, nevertheless they become an aspect of the sentence,
the jurisdiction extends to administration and administration re-
14
Craig Haney, Reforming Punishment: Psychological Limits to the
Pains of Imprisonment, 2006, p. 386.
15
Luigi Ferrajoli, Diritto e ragione. Teoria del garantismo penale, 1989,
p. 405.
16
Mirelle Delmas-Marty, Le flou du droit: du code pénal aux droits de
l’homme, 1986, chpt. II, par. 2; Mirelle Delmas-Marty and Catherine Teitgen-
Colly, Punir sans juger? De la répression administrative au droit administratif
pénal, 1992.
evaluates and re-shapes the judicial decision. What may have

seemed correct at the time of sentencing is no longer so (or not
necessarily so) when being carried out: the former punishes and
tends to exclude offenders from society, the latter helps and
seeks to include offenders in society. If penitentiary law questions
how much suffering is tolerable, criminal law questions how
much leniency is tolerable. If the sentence states that we need to
punish, the administration rejects the suffering inherent in the
punishment.
I think the general terms of this analysis are, by now,
accepted almost unanimously. Admittedly there is a defence of
punishment,17 and particularly of its retributive function,18 but it
doesn’t negate the limitations and shortcomings of specific
forms of punishment adopted by our society. The consequences
that arise from the inadequacy of the prison system are extremely
diverse.
The clearest consequence is represented by penal abolitionism
which, in its different guises and settings,19 assumes many of the
idealistic features of a profound renewal of cultural sensitivity as
well as the anarchist tones which reject any form of constraint.
The real problem for Hulsman, Mathiesen, Christie, and Bianchi
is not how to change the criminal justice system, but how to
subvert the social system and totally eliminate the oppressive
logic of power. A concept which could be summed up in the
words of Les Misérables by Victor Hugo: there are no bad herbs
or bad men; there are just bad cultivators.
In an equally radical way Foucault encourages us to take
note of the fact that the criminal justice system is no longer
needed to restore justice, but to activate power. When punishment
is reduced to an “incorporeal punishment,” it is merely a pretext
for controlling and conditioning every aspect of existence. The
offender, just like the insane, the sick or the child, is one of the
17
Winfried Hassemer, Warum Strafe sein muss. Ein Plädoyer, 2009.
18
Vittorio Mathieu, Perché punire? Il collasso della giustizia penale,
1978.
19
Vincenzo Ruggiero, Penal Abolitionism, 2010.
Salvatore Amato 21
clearest expressions of the way in which an increasingly

fragmented and invisible, yet omnipresent, system of power
activates the mechanisms of normalisation. Prisons, asylums,
schools, hospitals, families all constitute an archipelago of
surveillance and correction practices in which it is increasingly
difficult to distinguish the punitive aspect from the educational
aspect, the crime from the misdemeanour. In short, Foucault is
not that interested in the punishment or the prison as much as in
their “institutionalisation” and their being places which “give
rise” to those models of knowledge, those forms of cultural
conditioning which are the foundation of the conforming structure
of our society.
Without reaching these political or ideological extremes, we
can interpret the decline of criminal law as the result of a
different perception, which is expressed through the rule of law.
If it no longer makes sense to identify the State as having the
monopoly on violence and our relation to the State as the means
of giving and receiving death, then criminal law cannot be seen
as the instrument with which to fight fire with fire. Klaus
Lüderssen, 20 for example, argues that we should set up the
criminal procedure as the right to social intervention [soziales
Interventionsrecht] which, in ensuring respect for fundamental
rights, ensures the recognition of guilt and illegality, legitimising
a controlled environment aimed at re-socialisation. Re-socialisation
should develop a less authoritative and more emancipated role,
linked to projects developed jointly between the detainee and the
prison institutions. Private law, in turn, should integrate these
forms of intervention, ensuring adequate compensation to the
victims of crime. Rather than overlapping or conflicting, criminal
law, private law and administrative law should complement each
other by delineating the scope of illegality and fundamental legal
interests. What follows is the graduation and diversification of the
forms of punishment, which should then leave criminal law to
deal with the most serious cases.
20
Klaus Lüderssen, Abschaffen des Strafens?, 1995.
The downside of this rethinking of trends in the legal system

is that it is hardly feasible in the face of increasing terrorist
threats and the phenomena of organised crime. Nevertheless it
can be credited with entrusting the legitimisation of punishment
entirely to society, bypassing the criticisms of the power of
criminal law defence.21 Disassociating the imposition and execution
of the sentence from the duties of the State is nothing new. One
of the central themes of the theory of moral retribution has
always been the insistence that committing a crime directly
alters the order of co-existence and only indirectly the political
order. In Metaphysik der Sitten Kant argues that, even if a political
community were to be dissolved and dispersed throughout the
world, the last murderer remaining in prison would first have to
be executed, 22 because, if the State fails, at least co-existence
doesn’t and so neither does the moral responsibility of responding
to evil. Once the violence inherent in having to compensate
suffering with suffering has been eliminated, it is extremely
important to re-establish punishment as a social institution, as a
responsibility that falls not only on power but weighs on each of
us. In this way the complex and multifunctional character23 of
the criminal system emerges, giving cause for reflection on a
number of factors, trends and tensions that characterise every
society. Why should prisons be better than the society they
represent? When we analyse the crisis facing criminal punishment,
we find the same critical issues in our society: first, the ostentatious
search for well-being and happiness, which makes the hidden
suffering and widespread lawlessness of the prison system so
intolerable, and second, techno-science and the market.
The expression techno-science refers to the use of science to
intervene radically and change every aspect of our existence.
Even happiness, if you think of that “fraudulent happiness”
21
And the whole school of thought that emphasises the need to overcome
punitive ideas: Luciano Eusebi, La pena in crisi. Il recente dibattito sulla
funzione della pena, 1990.
22
Francesco D’Agostino, L’anima del reo, in Id., Diritto e secolariz-
zazione. Pagine di filosofia giuridica e politica, 1982, chpt. I, p. 5.
23
David Garland, Punishment and Modern Society, 1990, XIII, p. 3.
Salvatore Amato 23
promised by genetic-drug enhancement techniques upon which

the President’s Council on Bioethics 24 of the United States
dwells. Even punishment. A long time has passed since Szasz
complained of the effects of psychiatry on the medicalisation of
punishment in a “therapeutic state,” of a “nanny state” which
treats sexual psychopaths as sick, needing to isolate and care for
them until they reach “synthetic sanity,” induced by drug
therapies, which may never be achieved.25 These trends now come
to the fore again as a result of genetics and neuroscience. Some
judicial attempts at pushing through the idea that biochemical
conditioning is so strong that it renders the acknowledgement of
responsibility for crimes committed impossible, have received a
certain media coverage: “it wasn’t him, it was his neurons” or “it
wasn’t him, it was his genes.” This is the net effect of the
attempt to plea the uniparental disomy of the Y chromosome, or
a gene-point mutation which encodes the monoamine oxidase A
enzyme (Mobley case 1991), a CAT scan (Hinckley case 1988),
a Positron Emission Tomography (PET) or SPECT scan (Kinkel
case 1999), genetics, and brain scans (Stayner case 2002) in
order to obtain a reduced sentence or a declaration of insanity.
When in Roper v. Simmons (125 S. Ct. 1183 2005) the US
Supreme Court had to decide on the constitutional legitimacy of
the death penalty for minors, neuro-scientific arguments formed
the basis of verbal and written expert witness testimonies for the
defence. An Amicus Curiae brief, written by medical professionals,
scientists and psychiatrists, had sought to prove to the judges
that evidence of the immaturity of the child could be unequivocally
“observed” through the use of new neuro-imaging techniques.
The Court, while admitting the submission of insanity, gave
little weight to these kinds of arguments,26 unlike some recent
Italian court rulings, which have admitted various investigations
24
Beyond Therapy: Biotechnology and the Pursuit of Happiness, 15
October 2003.
25
Thomas S. Szasz, Law, Liberty and Psychiatry: An Inquiry into the
Social Uses of Mental Health Practices, 1963.
26
Charles Walsh, Youth Justice And Neuroscience. A Dual-Use Dilemma,
in ‘British Journal of Criminology,’ 51 (2011), p. 3.
of a molecular genetic background, including MRI brain and

functional MRI scans.27
Medicalising our existence therefore extends to punishment,
outlining a possible shift from “repression” to “pathologisation”
that feeds a creeping “biology of social control.”28 In this way
we run the risk of justifying, as has already happened with the
philosophy of Lombroso, the expectation of permanently excluding
the largest possible number of “psychopaths” from society. Is it
possible to punish a neuron or rehabilitate a synapse connection?
Along with the idea of punishment, we lose the sense of guilt,
and along with guilt, the idea of freedom: we’re just “a bunch of
neurons.” On the whole this bunch of neurons works fairly well.
Then sometimes they break down and need repairing. What if it
weren’t possible to repair them? A number of fairly disquieting
scenarios loom on the horizon: how many faulty biological
machines should we exclude? After the long list of wrongful
conceptions, wrongful pregnancies and wrongful births, how
many more wrongful beings and wrongful existences will we
have to count? Pharmacological control of our conscience does
not torture our bodies, nor does it lock them up in cells, but it
has serious consequences for our individual identity. If “chemical
castration” of sexual offenders already disconcerts us, how will
we be able to endorse the systematic control and conditioning of
personality?
The other shadow which looms over criminal punishment is
the market. In a world where you can buy everything, or rather,
to use the apt title of a book by Sandel, in a world where we
don’t know “what money can’t buy” even punishment cannot
escape the cost-benefit equation.29 Punishment simply becomes
the price you pay for having committed certain crimes or, looked
at the other way round, the price that society is willing to pay to
27
Corte d’Assise d’Appello di Trieste, 18 September 2009; Tribunale di
Como, 20 May 2011.
28
Nikolas Rose, The Politics of Life Itself, Biomedicine, Power and
Subjectivity in the Twenty-First Century, 2007, chpt. VIII, par. 5.
29
Antoine Garapon, La raison du moindre Etat: Le néolibéralisme et la
justice, 2010, chpt. 7.
Salvatore Amato 25
fight crime, to reintroduce a psychopath into society or to

maintain the prison system. So the correct question would be,
not “Is it right to punish?” or “Is imprisonment right?,” but
“How much does it cost?” or “What’s the cheapest option?.” As
Posner states, “[...] the economist’s objective is not to deter
crime as such, which would imply reducing its incidence to zero,
but simply to assure that any prospective criminal internalises
the full social costs of his activity.”30 In such terms, it is difficult
to sustain the economic rationality of a criminal justice system
that has no effect on the reduction of crime, but dramatically
increases management and operating costs. From 1980 to 2000
the expenditure in the United States has quadrupled, reaching 70
billion dollars, but it has certainly not improved the conditions
of the three million inmates, or safety in the cities. Does it still
make sense to keep such a system?
Putting these different perspectives together gives us the
same result time after time. We have to rethink legal sentencing
and punishment from a political, social, scientific and economic
point of view. The outcomes of this rethinking are profoundly
different, as are the several perspectives from which they derive.
In any case, sentencing loses all specific legal connotations:
equality, proportionality and justice. Moreover, there is no room
for freedom and guilt in the analysis of neural weaknesses in the
brain or of the relation between benefits and costs. Even a
strictly political stance lies outside any evaluation of this kind.
One of Stalin’s Commissioners of Justice, Kyrilenko, made a
well known statement: “We should not only do away with the
guilty; doing away with the innocent makes more of an
impression.” Once the rigid and often cruel balance between
fighting fire with fire and the power of the State over the
institutionalisation of this response to ‘evil’ has been removed,
criminal punishment becomes fragmented due to a number of
conflicting influences. It is partly a political problem, partly an
economic problem, partly a medical and scientific problem.
30
Richard A. Posner, Retribution and Related Concepts of Punishment,
in ‘The Journal of Legal Studies,’ 9 (1980), p. 74.
What role is left for the law? The role of protecting subjective
rights and the sphere of freedom that the law has in general and
in particular in a democratic and constitutional State. The law
should then fully occupy the role of posing limits to criminal
punishment, which nowadays it carries out almost hidden from
view in those “trading places” where penitentiary law contrasts
with criminal law. In this manner it would be possible to
recuperate fully the impartial role which characterises the
phenomenological structure of legal experience and which fails
if we consider the State as the interested party of the crime.31
Perhaps behind the crisis of criminal punishment there is
only the withdrawal of the law from monopolising and
administrating force, the role that for centuries has accompanied
its history. Penal repression has purported to answer three
profoundly different questions. What right do we have to forbid?
What right do we have to judge? What right do we have to
punish? I believe that the role of the law would be strengthened
if it merely gave a convincing answer to the first two questions,
leaving the third to politics, economics or science.
31
Alexandre Kojève, Esquisse d’une phénomenologie du droit, 1982,
Vol. III, chpt. 2, par. 61.
Salvatore Amato 27
Bibliography
Balzac, Honoré de, Mémoires pour servir à l’histoire de la Révolution française,

par Sanson, exécuteur des arrêts criminels, pendant la Révolution, Cosson,
Paris, 1830.
Callois, Roger, Instinct et société. Essais de sociologie contemporaine,
Gonthier, Genève, 1964.
Camus, Albert, (Richard Howard (tr.)), Reflections on the Guillotine,
Fridtjof-Karla Publications, Michigan City (Ind.), 1959.
Curfman, Gregory D., Stephen Morrisey and Jeffrey M. Drazen, Physicians
and Execution, in ‘The New England Journal of Medicine,’ 1 (2008), pp.
403-404.
D’Agostino, Francesco, L’anima del reo. Osservazioni in margine alla teoria
hegeliana del diritto penale, in Id., Diritto e secolarizzazione. Pagine di
filosofia guridica e politica, Giuffré, Milan, 1982.
D’Aubignè, Agrippa Théodore, Les Tragiques, Le Bouc du Désert, Paris,
1661.
Delmas-Marty, Mirelle, Le flou du droit: du code pénal aux droits de
l’homme, PUF, Paris, 1986.
Delmas-Marty, Mirelle and Catherine Teitgen-Colly, Punir sans juger? De la
répression admi nistrative au droit administratif pénal, Economica,
Paris, 1992.
Ellul, Jacques, Trahison de l’Occident, Calmann-Lévy, Paris, 1975.
Eusebi, Luciano, La pena in crisi. Il recente dibattito sulla funzione della
pena, Morcelliana, Brescia, 1990 .
Ferrajoli, Luigi, Diritto e ragione. Teoria del garantismo penale, Laterza,
Roma/ Bari, 1989.
Foucault, Michel, (Alan Sheridan (tr.)), Discipline & Punish: The Birth of the
Prison, Vintage Books, New York, 1995.
Garapon, Antoine, La raison du moindre Etat: Le néolibéralisme et la justice,
Odile Jacob, Paris, 2010.
Garland, David, Punishment and Modern Society, University of Chicago
Press, Chicago, 1990.
Girard, René, (Patrick Gregory (tr.)), Violence and the Sacred, Johns Hopkins
University Press, Baltimore, 1977.
Haney, Craig, Reforming Punishment: Psychological Limits to the Pains of
Imprisonment, American Psychological Association, Washington DC,
2006.
Hassemer, Winfried, Warum Strafe sein muss. Ein Plädoyer, Ullstein, Berlin,
2009.
Isidoro di Siviglia, Etymologiae sive Origines, Utet, Torino, 2004.
Kojève, Alexandre, Esquisse d’une phénomenologie du droit, Gallimard,
Paris, 1982.
Lloyd, Keith, Suicide and Self Injury in Prison: A Literature Review, in
‘Home Office Research Studies,’ 115 (1990).
Lüderssen, Klaus, Abschaffen des Strafens?, Suhrkamp, Frankfurt am Main,
1995.
Manconi, Luigi and Andrea Boraschi, Quando hanno aperto la cella era già
tardi perché … Suicidio e autolesionismo in carcere (2002-2004), in
‘Rassegna Italiana di Sociologia,’ 1 (2006), pp. 117-148.
Mathieu, Vittorio, Perché punire? Il collasso della giustizia penale, Rusconi,
Milan, 1978.
Posner, Richard A., Retribution and Related Concepts of Punishment, in ‘The
Journal of Legal Studies,’ 9 (1980), pp. 71-92.
Rose, Nikolas, The Politics of Life Itself, Biomedicine, Power and Subjectivity in
the Twenty-First Century, Princeton University Press, Princeton, 2007.
Ruggiero, Vincenzo, Penal Abolitionism, Oxford University Press, Oxford,
2010.
Saramago, José, O Evangelho segundo Jesus Cristo, Caminho, Lisbon, 1991.
Szasz, Thomas S., Law, Liberty and Psychiatry: An Inquiry into the Social
Uses of Mental Health Practices, Macmillan, New York, 1963.
Various Authors (President’s Council), Beyond Therapy: Biotechnology and
the Pursuit of Happiness, 15 October 2003.
Walsh, Charles, Youth Justice And Neuroscience. A Dual-Use Dilemma, in
‘British Journal of Criminology,’ 51 (2011), pp. 1-16.
Matthew H. Kramer 29
Matthew H. Kramer
Retributivism in the Spirit of Finnis*
John Finnis’s contributions to the philosophy of criminal

law have received somewhat less attention than a number of his
other major jurisprudential insights. This essay will highlight the
virtues of his work on the central purpose of punishment, by
elaborating a version of retributivism that is quite closely similar
to his. My arguments are significantly different from those
which Finnis presents ‒ for example, I attach no importance
whatsoever to the degree of correspondence between my positions
and those advocated by Thomas Aquinas or other medieval
philosophers ‒ but the upshot of this essay is to underscore the
solidity of Finnis’s reflections on the moral role of punishment.
At the outset, the limits of my arguments should be stated
clearly. This paper does not set out to establish that retributivism
of any kind is correct as an overarching justification of
punishment, nor does it even set out to establish that the general
type of retributivism discussed herein ‒ desert-focused retributivism
‒ is superior to the principal alternative type, which concentrates
on vindicating the dignity of victims rather than on offsetting the
gains achieved by wrongdoers. Instead, the aim is to show that
the best account of punishment within desert-focused retributivism
is closely similar to the account propounded by Finnis.
*
An abridged version of this essay was presented as a Royal Institute of
Philosophy Lecture at the University of Hull in March 2011. I am very
grateful to Antony Hatzistavrou for his organization of that event, and to the
members of the audience (especially Kimberley Brownlee, Miroslav Imbrisevic,
Suzanne Uniacke, and Tony Ward) for their stimulating questions. I presented a
slightly revised version of the essay at a seminar in the Cardiff University
Philosophy Department in August 2011. I am extremely grateful to Jules Holroyd
for organizing my presentation. I am likewise obliged to her, and to Thom
Brooks and Christopher Norris, for some perceptive questions
1. An opening sketch of desert-focused retributivism
Nearly every theory that can correctly be classified as a

specimen of retributivism is concerned with the negative deserts
of people who have engaged in wrongdoing. Here, however, the
epithet “desert-focused” will be reserved for retributivistic
theories that devote attention chiefly to the ways in which any
malefactors gain through their self-indulgent noncompliance
with the legitimate criminal-law mandates of their community.
Precisely because a miscreant elevates himself above his fellows
and his community when he contravenes just legal requirements
in order to satisfy his own impulses and desires, the administration
of punishment is necessary to offset the unfair advantage that he
has seized. By offsetting that advantage, the punishment reasserts
the ideal of human equality which the wrongdoer has implicitly
or explicitly denied through his transgression(s). In two respects,
the imposition of a sanction brings the offender down to his
proper level vis-à-vis the others in his society. First, by subjecting
him to material hardships such as the loss of most of his
freedoms, it serves in palpable ways to lessen the amenity of his
everyday life. Second, it symbolizes the downfall of his effort to
place himself above his fellows through his indulgence of his
urges while most other people were exercising proper self-
restraint, and it thereby conveys to him the impertinence of that
effort. Both materially and communicatively, then, a suitable
punishment counteracts the disruption of fair social relations
that has been brought about by an offender’s misdeed(s). It “is
the healing of a disorder ‒ precisely an unjust inequality ‒
introduced into a whole community by the wrongdoer’s criminal
choice and action.”1
Proponents of this version of retributivism have to specify
the nature of the unjust inequality that has been generated by a
criminal’s misconduct. That is, they have to specify the nature of
the unjust gain that has accrued to any wrongdoer simply by dint
1
John Finnis, Collected Essays: Human Rights & Common Good, Vol.
III.12, 2011, p. 173.
of his having acted athwart the terms of a morally worthy

criminal-law mandate. Clearly, the relevant gain does not consist
in one or more of the desiderata that can contingently be
acquired through criminal endeavors, such as money or power
or land or sexual gratification. Though many instances of
criminal activity do endow their perpetrators with such goods,
many other instances do not. (Consider, for example, bank
robbers who have to abandon their loot as they begin to flee the
scene of their dastardly venture.) Likewise, the relevant gain
does not consist in feelings of pleasure or satisfaction resulting
from the performance of a misdeed. Though many instances of
criminal activity do elicit such feelings in their perpetrators,
many other instances do not. Desert-focused retributivism
aspires to offer a comprehensively applicable account of the
grounds for inflicting punishments upon criminals within a
liberal-democratic society; that aspiration will obviously go
unfulfilled if the grounds adduced are in fact applicable to only
some crimes. Hence, desert-focused retributivists who strive for
comprehensiveness will need to look beyond the sorts of goods
and feelings mentioned above – and so they have.
2. Freedom as the unjust gain?
Most problematic is the suggestion that the unjust gain

accruing to every criminal resides in the inordinate freedom
which he arrogates to himself through his law-breaking conduct.
This line of thought has been most sustainedly developed by
George Sher,2 but it has also won varying degrees of adherence
from some other writers. 3 Even Russ Shafer-Landau, who
2
George Sher, Desert, 1987, pp. 74–90.
3
Gerard Bradley, Retribution and the Secondary Aims of Punishment, in
‘American Journal of Jurisprudence,’ 44 (1999); Anthony R. Duff, Auctions,
Lotteries, and the Punishment of Attempts, in ‘Law and Philosophy,’ 9
(1990), pp. 16–17; John Finnis, Collected Essays: Human Rights & Common
Good, Vol. III.11, 2011, p. 162; Id., Collected Essays: Human Rights &
Common Good, Vol. III.12, 2011, pp. 175 and 176; Dan Markel, State, Be
objects to the line of thought, has acquiesced in certain key

aspects of it. 4 Nonetheless, we should reject altogether the
proposition that every violation of a criminal-law mandate bestows
upon its perpetrator a quantum of extra freedom.
Sher takes as his point of departure a celebrated essay by
Herbert Morris which is in many respects the fountainhead of
modern desert-focused retributivism.5 Under Morris’s account of
punishment, every criminal is said to have gained an unfair
advantage over others by violating some legal requirement(s)
within a network of such requirements that are collectively
beneficial for everyone. Seeking to build upon this account, Sher
has to pin down the nature of the unfair advantage that is said to
be conferred by every criminal course of conduct. He submits
that that unfair advantage can best be explicated along the
following lines: “[A] person who acts wrongly does gain a
significant measure of extra liberty: what he gains is freedom
from the demands of the prohibition he violates. Because others
take that prohibition seriously, they lack a similar liberty. And as
the strength of the prohibition increases, so too does the freedom
from it which its violation entails.” Sher slightly later repeats his
Not Proud: A Retributivist Defense of the Commutation of Death Row and

the Abolition of the Death Penalty, in ‘Harvard Civil Rights-Civil Liberties
Law Review,’ 40 (2005), p. 430; Dan Markel, Executing Retributivism:
Panetti and the Future of the Eighth Amendment, in ‘Northwestern
University Law Review,’ 103 (2009), pp. 1186–1187; Andrew von Hirsch,
Proportionality in the Philosophy of Punishment: From ‘Why Punish?’ to
‘How Much?, in ‘Criminal Law Forum,’ 1 (1990), pp. 266 and 268.
4
Russ Shafer-Landau, The Failure of Retributivism, in ‘Philosophical
Studies,’ 82 (1996), pp. 293 and 302–303; Russ Shafer-Landau, Retributivism
and Desert, in ‘Pacific Philosophical Quarterly,’ 81 (2000), p. 206. Much the
same is true of Jeffrie Murphy, The State’s Interest in Retribution, in ‘Journal
of Contemporary Legal Issues,’ 5 (1994), p. 291. Likewise, Richard Burgh,
who takes exception to desert-focused retributivism, nonetheless commits
Sher’s error in the second of the following two sentences: “According to
[Jeffrie] Murphy, the benefit received [by any criminal] is the renouncing of
the burden of self-restraint, which a violation of the law entails. I take it that
this is a benefit, because the offender now has a bit more freedom than those
who undertook the burden of obeying the law.” Richard Burgh, Do the Guilty
Deserve Punishment?, in ‘Journal of Philosophy,’ 79 (1982), p. 209.
5
Herbert Morris, Persons and Punishment, in ‘The Monist,’ 52 (1968).
view that “the most plausible way of understanding [a wrongdoer’s

unfair extra benefit] is as an extra measure of freedom from
moral restraint,” and that a “wrongdoer [through his misconduct]
has unfairly gained an extra measure of freedom from moral
restraint.”6
These statements by Sher are unsustainable. 7 Under any
tenable conception of freedom, it is not the case that someone
who transgresses a legal mandate has thereby acquired freedom
from its demands. Were Sher correct, then no violation of a law
would ever be a violation, since a wrongdoer would become free
of a law’s requirements precisely by virtue of having flouted
those requirements. Only because a lawbreaker does not become
free of the demands of a legal mandate when he contravenes
them, is his contravention classifiable as such. As David Dolinko
pungently observes, “there would be no basis for deciding to
punish the wrongdoer if his criminal act had somehow repealed
the prohibition it is alleged to violate.”8
Sher does not improve his position when he focuses his
remarks on moral restraints. Indeed, he worsens his position, for
he appears to be relying on an assumption that will be briefly
challenged later in this essay: namely, the assumption that
everybody in a society governed by a reasonably just regime is
always under a prima-facie moral obligation to comply with the
terms of each of the morally justified legal mandates introduced
or retained by that regime. At any rate, the chief weakness that
besets Sher’s argument in application to moral constraints is the
same as the weakness that besets the argument in application
6
George Sher, Desert, 1987, pp. 82–84.
7
My criticisms of Sher are prefigured by those in David Dolinko, Some
Thoughts about Retributivism, in ‘Ethics,’ 101 (1991), pp. 546–548 and in
David Dolinko, Mismeasuring ‘Unfair Advantage:’ A Response to Michael
Davis, in ‘Law and Philosophy,’ 13 (1994), pp. 499–500. (In the latter work,
the immediate target of Dolinko’s censure is Michael Davis rather than Sher.)
Dolinko’s objections to Sher’s analysis are recounted ‒ but neither endorsed
nor repudiated ‒ in Michael Davis, Justice in the Shadow of Death, 1996, p.
259.
8
David Dolinko, Some Thoughts about Retributivism, in ‘Ethics,’ 101
(1991), p. 548.
directly to legal mandates. No defensible conception of freedom

would support the claim that someone who breaches a moral
restriction has thereby freed herself from that restriction or from
any other moral requirement. On the contrary, her breach is a
breach exactly because she remains subject to the violated
restriction before, during, and after the occurrence of the violation.
If Sher’s position were correct, then anyone could come to be
free from a moral requirement simply by transgressing it, and
thus no transgression would ever count as such (since the sheer
fact of its having happened would negate its status as a
contravention). By murdering some person, anyone could liberate
herself from a moral constraint against murdering that person.
The startling implications of Sher’s analysis reveal the
unsustainability of that analysis. Instead of becoming free from
a moral restraint by doing what it forbids, an offender remains
subject to that restraint, and she also incurs further moral
obligations to remedy the wrong that she has perpetrated. Morally,
her overall liberty is lower than before. Hence, the notion that a
criminal gains an extra quantum of moral liberty whenever she
commits an offense is very far indeed from the truth.
Sher cannot rescue his position by switching to a focus on
physical freedom in contrast with deontic freedom.9 That is, he
cannot vindicate his analysis by concentrating on unpreventedness
or abilities rather than on permissibility. Suppose that he were to
be understood as claiming that a criminal always becomes
physically free (that is, physically able) to commit an offense by
dint of committing it, and that a criminal thereby acquires
something which her law-abiding fellow citizens lack. Both of
the theses in this revised claim are false.
Except in special cases, a miscreant who engages in a
criminal act at some time t was physically free before t to
engage in the specified act at t. Hence, the performance of a
9
“Physical” is not here contrasted with “mental” or “psychological.” Rather,
the sole contrast is with “deontic” or “normative.” Someone is not physically
free to φ unless she is psychologically capable of φ-ing. On the distinction
between physical freedom (including psychological freedom) and deontic
freedom, see Matthew Kramer, The Quality of Freedom, 2003, pp. 60–75.
misdeed is not typically what endows a miscreant with the

physical freedom to perform it; the performance is not typically
what removes any physical obstacles to its own occurrence,
since those obstacles were already absent. Accordingly, the first
thesis in the revised claim posited above ‒ the thesis that a
criminal always becomes physically free to commit an offense
by dint of committing it ‒ is false.
Also false is the second thesis, and not only because of the
falsity of the first thesis. Quite a few people in any society are
physically free to engage in numerous modes of conduct that are
criminally proscribed therein (even if they might be apprehended
pretty quickly thereafter). Some people would of course be more
adept than others at performing any of those modes of conduct,
but it is certainly not the case that the only people able to
perform any of them are the criminals who actually do so.
People possess countless physical freedoms ‒ including freedoms
to carry out criminally forbidden acts ‒ which they decline to
exercise. Thus, the fact that a criminal has been physically free
to commit a misdeed of some kind is typically not anything that
sets her apart from most of the people in her society who do not
commit any such misdeed.10
Defenders of Sher might contend that the physical liberty
newly acquired by any wrongdoer is not the liberty to perpetrate
the crime which she actually does perpetrate, but instead some
further physical freedom that is engendered by the wrongdoer’s
exercise of her liberty to carry out the aforementioned crime.
Such a retort would be misguided in two respects. First, the
acquisition of some further physical liberty through the commission
of a criminal misdeed is contingent rather than inevitable. For
10
The points in this paragraph and the preceding paragraph are missed
by Don Scheid when he writes as follows: “By breaking the law, [a criminal]
makes for himself opportunities not available to law-abiding persons….
[B]reaking a rule against embezzlement might create an opportunity for
gaining an enormous sum of money, while breaking a law against jaywalking
only creates the opportunity for realizing a very minor convenience of saving
a few minutes’ walking time.” Don E. Scheid, Davis, Unfair Advantage
Theory, and Criminal Desert, in ‘Law and Philosophy,’ 14 (1995), pp. 393–394.
example, if Joe commits assault and battery against Julia and

is then forcibly apprehended straightaway, he will have lost
many of his erstwhile freedoms and will not have gained any
additional freedoms. Second, even when a criminal does acquire
some additional freedom-to-φ through his criminal misconduct,
numerous law-abiding people in his society might also possess
the freedom to φ. For instance, if Bruno kills his wife in order to
be able to watch a football game on television in peace, the
newly acquired freedom-to-watch-the-football-game-in-peace is
something that he shares with any number of law-abiding people
in his society. Thus, if defenders of Sher were to engage in the
maneuver suggested at the outset of this paragraph, they would
be failing to specify a way in which every criminal vests herself
with some liberty that is not enjoyed by her law-abiding fellow
citizens.
Defenders of Sher might try instead to shift the focus from a
criminal’s particular liberties to her overall liberty. That is,
instead of maintaining that every criminal acquires some new
freedom-to-φ as a result of indulging in misconduct, those
defenders might submit that every criminal undergoes an
increase in her overall liberty through her misconduct. Any such
rejoinder, however, would be a non-starter. After all, there is no
guarantee that a criminal will have acquired any new physical
freedom-to-φ whatsoever as a result of carrying out this or that
crime. Under some theories of freedom (such as that espoused
by Hillel Steiner), 11 the absence of such a guarantee is itself
sufficient to negate any guarantee of an increase in a criminal’s
overall liberty. Admittedly, under the theory of freedom for
which I myself have argued at length elsewhere,12 the absence of
a guarantee of the former type is per se not quite sufficient to
preclude the existence of a guarantee of the latter type ‒ because,
under my theory, an increase in a person’s overall freedom can
be attributable to the replacement of an instance of unfreedom
11
See Hillel Steiner, How Free: Computing Personal Liberty, in Allen
Phillips-Griffiths (ed.), Of Liberty, 1983.
12
Matthew Kramer, The Quality of Freedom, 2003.
by a mere inability. In other words, somebody may have become

freer overall if a particular inability of hers is no longer due to
some action(s) or disposition(s) of some other person(s) but is
now due decisively to natural limitations. Nevertheless, the
notion that every perpetrator of a crime undergoes that sort of
increase in her overall liberty by virtue of indulging in her
criminal misconduct is fanciful. The occurrence of such an
increase will be rare rather than inevitable. Consequently, an
attempt to salvage Sher’s argument by construing it as focused
on every culprit’s overall physical freedom ‒ rather than on any
particular physical freedom(s) of each culprit ‒ will prove
unavailing. Sher’s argument does not withstand scrutiny when it
is assessed in the light of any credible account of liberty.
3. The price of a license
Michael Davis has been a prominent and astute exponent of

desert-focused retributivism since the early 1980s. He has
developed a piquant thought-experiment in an attempt to pin
down the nature and extent of the unfair advantage that is gained
by every criminal through his or her misconduct. 13 However
commendably thought-provoking Davis’s exposition of the
nature and extent of that unfair advantage may be, it is deeply
flawed ‒ both in itself and in its relationship with another
scheme proposed by Davis for the assignment of punishments to
crimes. On a number of points, my queries about his analysis are
broadly in line with those of several previous critics.14
13
Michael Davis, How to Make the Punishment Fit the Crime, in
‘Ethics,’ 93 (1983), pp. 743–745; Michael Davis, Harm and Retribution, in
‘Philosophy and Public Affairs,’ 15 (1986), pp. 258–260; Michael Davis,
Criminal Desert, Harm, and Fairness, in ‘Israel Law Review,’ 25 (1991), pp.
530–531; Michael Davis, Justice in the Shadow of Death, 1996, pp. 257–80.
14
David Dolinko, Mismeasuring ‘Unfair Advantage:’ A Response to
Michael Davis, in ‘Law and Philosophy,’ 13 (1994); Anthony R. Duff, Auctions,
Lotteries, and the Punishment of Attempts, in ‘Law and Philosophy,’ 9
(1990), pp. 3–17; Jeffrey Reiman, Why the Death Penalty Should Be Abolished
Davis envisages an auction in which people can bid for

licenses to commit various crimes with impunity. The number
of licenses for each type of crime is limited to reflect the
exigencies of social cohesion. Because the especially serious
crimes are more disruptive of such cohesion than are crimes that
are less serious, the licenses for each of the former kinds of
crimes will generally be fewer than those for each of the latter
kinds. “The more serious the crime, the fewer the social order
can tolerate, all else equal.” 15 People can submit bids for
licenses either because they wish to commit the specified crimes
or because they wish to lower the incidence of those crimes by
buying up the licenses. When all the bids are in, the licenses for
each type of crime will have been sold at a price that can be
used as a benchmark for the assignment of penalties to offenses.
“A penalty is a fair price [for the commission of a crime] only if
it corresponds to what a license to do that crime would fetch on
the open market.” Davis makes clear that the correspondence to
which he here refers is a matter of proportionality rather than of
commensurateness: “The correspondence is not equality but
homology, a relative correspondence. There is, after all, no
decisive reason that the society should choose this or that minimum
of social order; nor is there any privileged rule for converting
dollars into years in prison, lashes of the whip, or the like.”16
in America, in Louis Pojman and Jeffrey Reiman (eds.), The Death Penalty:
For and Against, 1998, pp. 75–76 and 85–86; Michael Ridge, If the Price is
Right: Unfair Advantage, Auctions, and Proportionality, in ‘APA. Newsletter
on Philosophy and Law,’ 3 (2004); Don E. Scheid, Davis and the Unfair-
Advantage Theory of Punishment: A Critique, in ‘Philosophical Topics,’ 18
(1990); Don E. Scheid, Davis, Unfair Advantage Theory, and Criminal
Desert, in ‘Law and Philosophy,’ 14 (1995); Russ Shafer-Landau, The
Failure of Retributivism, in ‘Philosophical Studies,’ 82 (1996), pp.303–304;
Russ Shafer-Landau, Retributivism and Desert, in ‘Pacific Philosophical
Quarterly,’ 81 (2000), pp. 206–207; Andrew von Hirsch, Proportionality in
the Philosophy of Punishment: From ‘Why Punish?’ to ‘How Much?, in
‘Criminal Law Forum,’ 1 (1990), pp. 265–268.
15
‘Ethics,’ 93 (1983), p. 744.
16
Ibid., p. 745.
3.1. A first query
One major weakness in Davis’s scenario of the auction is

that it has to be supplemented with some extremely dubious
assumptions in order to shield it against sundry telling objections.
For example, in response to queries about the commission of
unlicensed crimes, Davis has to assume either that all such
crimes will be punished in the same way or that no unlicensed
crimes of any sort will occur.17 He disconcertingly explains his
assumptions as follows: “The point of the assumptions defining
the market is to filter out irrelevant factors. If an argument [by a
critic] reveals an irrelevant factor, then I will try to filter it
out.” 18 When Davis fends off objections to his model by
amplifying it with outlandish assumptions, his claim that the
objections are concerned with “irrelevant factors” is hardly
reassuring. As Dolinko acridly retorts: “Avoiding the punishment
one would receive for an unlicensed crime is plainly the most
important reason for buying a crime license in the first place.
How, then, can Davis treat the differing punishments for unlicensed
crimes as mere irrelevancies to be swept away by fiat?”19
3.2. A second query
Another major weakness in the scenario of the auction is

that the rankings generated by it do not coincide with any
plausible scale of the seriousness of crimes. Davis somewhat
blithely asserts that “the demand for licenses is likely to increase
with the seriousness of the crime.” In parentheses he adds: “If
that seems unlikely given moral constraints on potential buyers,
ask yourself whether you would prefer to have a license to steal
17
Michael Davis, Justice in the Shadow of Death, 1996, pp. 272 and
279, n. 27.
18
Ibid., p. 278, n. 27.
19
David Dolinko, Mismeasuring ‘Unfair Advantage:’ A Response to
Michael Davis, in ‘Law and Philosophy,’ 13 (1994), pp. 504–505, footnote
omitted.
or a license to jaywalk.” 20 Even if we were to accept these

assertions by Davis entirely on their own terms, we would be
well advised to note that they advert only to a likelihood rather
than to any firmer correlation between the prices of the licenses
and the seriousness of the crimes. What is more, the assertions
are not in fact convincing. Consider, for example, instances of
murder that involve cannibalism. Such crimes are more serious
than ordinary murders, and a fortiori they are more serious than
acts of grand larceny. Yet the demand for licenses to commit
grand larceny will be far, far higher than the demand for licenses
to commit murders that involve cannibalism. Thus, even if the
latter licenses are substantially fewer in number than are the
former, the strong likelihood is that the price for each of the
licenses to commit cannibalistic murder will be lower than the
price for each of the licenses to commit grand larceny. Accordingly,
Davis is committed to the conclusion that the punitive measures
imposed for cannibalistic murder should be gentler than the
punitive measures imposed for grand larceny.
Davis is committed to a similar conclusion concerning
cannibalistic murder versus ordinary murder. (I am assuming
that a license to commit cannibalistic murder cannot be employed
to gain exemption from punishment for an act of murder that is
not followed by the perpetrator’s consumption of the flesh of the
victim.) Although the demand for licenses to commit ordinary
murder might be somewhat lower than the demand for licenses
to commit grand larceny, it will still be far higher than the
demand for licenses to commit cannibalistic murder. Moreover,
the disparity between the number of licenses to commit
cannibalistic murder and the number of licenses to commit
ordinary murder will be significantly narrower than the disparity
between the former number and the number of licenses to
commit grand larceny. Consequently, the strong likelihood is
that the price for each of the licenses to commit ordinary murder
will be higher than the price for each of the licenses to commit
20
‘Ethics,’ 93 (1983), p. 744.
cannibalistic murder. Davis’s version of retributivism thus has to

call for the imposition of stiffer penalties in response to each
instance of the former crime than in response to each instance of
the latter.
The rankings that would emerge from Davis’s auction are
rendered problematic in further ways by the influence of factors
that can weaken the correlations between the prices of licenses
and the seriousness of crimes. To discern a principal example of
those factors, we should note that the licenses in Davis’s auction
do not by any means guarantee that the holders thereof will be
successful in their nefarious endeavors. In particular, the
licenses do not shield the holders from opposition to their
pursuit of their misdeeds. As Davis writes: “A license bought at
our auction guarantees only that if the holder commits the
appropriate crime and is then captured, tried, convicted, and
sentenced, she can hand in the license and be excused from
punishment. The license pardons. It does not guarantee success
(for example, that a thief will get to keep what she has stolen for
more than an instant).”21
Given that the possession of a license does not exempt its
owner from interference with his wrongdoing, the potential
purchasers of the licenses will ‒ ceteris paribus ‒ gravitate
toward crimes that are less likely to be opposed and thwarted.
“All else equal, [a criminal] will prefer ‘easy pickings.’”22
In any given society, crimes of various types can be stymied
(by police officers or by private citizens) more effectively than
crimes of other types, and not all the latter crimes are more
serious than the former. Insofar as the more serious crimes are
among those that can most effectively be halted or disrupted, the
consideration adduced in the preceding paragraph will skew
Davis’s rankings in a perverse direction. To be sure, that
consideration will prevail only ceteris paribus. Some of the
more serious crimes that can quite effectively be thwarted are
probably more lucrative for their perpetrators than are some of
21
Michael Davis, Justice in the Shadow of Death, 1996, p. 272.
22
Ibid., p. 270.
the less serious crimes that cannot so effectively be countered.

In the mind of a rational miscreant who contemplates the
commission of one of those former crimes, the greater
lucrativeness would partly or fully offset the unappealingness of
the greater vulnerability. Nevertheless, not all the perverse
skewing of Davis’s rankings will be offset in that fashion.
For instance, suppose that bank robberies can effectively be
scotched (or, at the very least, can be made extremely perilous
for their perpetrators) through the presence of a few armed
police officers or security guards in the lobby of each bank. If
every bank in some society has introduced such a precaution,
then the bids within the hypothetical auction for licenses to
commit bank robberies in that society will tend to be very low.
Suppose now that, in the same society, the crime of shoplifting
is much less easily foiled. Employing the number of plain-
clothes detectives required to avert most instances of that latter
crime would be prohibitively expensive for any shop. Accordingly,
the likelihood of one’s being thwarted in one’s efforts to steal
goods from a shop is markedly lower than the likelihood of
one’s being frustrated in one’s efforts to rob money from a bank.
Furthermore, even a shoplifter caught in the act does not
typically face nearly the same level of danger as a bank robber
who is confronted with armed policemen or security guards.
Hence, although the proceeds from a successful bank robbery
will normally be considerably higher than the proceeds from a
successful bout of shoplifting, that disparity can be wholly or
largely offset in the minds of aspiring criminals by the other
disparities just mentioned (concerning the probability of success
and the level of hazard). Thus, with reference to the eminently
credible society that is envisaged here, the bids in Davis’s
auction for licenses to commit bank robberies might well be
somewhat lower than the bids for licenses to carry out acts of
shoplifting. At any rate, there is a strong likelihood that the
former bids will not be much higher (if at all higher) than the
latter. Consequently, Davis is committed to the conclusion that
the punishments for acts of shoplifting in the envisaged society
should be approximately the same as the punishments for bank
robberies. Such a conclusion is at odds with the retributivistic

principle of proportionality.
What is more, this example with some slight modifications
will reveal a further respect in which Davis’s rankings can depart
sharply from retributivistic principles. Suppose that, within the
limits of the resources at the disposal of the merchants in some
society S, the monitoring of customers is insufficient to stymie
any act of shoplifting that is performed with at least a minimal
degree of dexterity. The probability of success among the
potential shoplifters in S is very close to 100%. Therefore, nobody
or virtually nobody in S would be disposed to bid anything in a
hypothetical auction for licenses to engage in the crime of
shoplifting. There is no point to paying for a license of that kind
when thefts of items from shops can already be carried out with
no negative consequences. In application to S, then, Davis’s
scenario of the auction generates the conclusion that no penalty
should be assigned to the crime of shoplifting. Far from making
the punishment fit the crime, Davis has supplied a justificatory
procedure that removes the punishment for the crime.
3.3. A third query
Another major problem, pointed out by most of the previous

critics of Davis who were cited near the beginning of my
discussion of his work, is that the outcomes of his hypothetical
auction do not tally with those of another procedure (a seven-
step procedure) which he proposes for the attachment of
penalties to crimes. Davis insists that the results of the auction
converge with those of his seven-step procedure, but his insistences
are unpersuasive. Incongruities between the two procedures
complicate his desert-focused version of retributivism, since the
seven-step procedure ‒ despite its limitations ‒ is a far more
plausible method for assigning punishments to crimes than is the
hypothetical auction. With his adoption of the seven-step procedure,
Davis adumbrates a more sophisticated understanding of the
notion that the object of punitive measures is to remove unfair
advantages gained by criminals through their wrongdoing.
He outlines the seven-step procedure as follows:

(i) Prepare a list of penalties consisting of those evils (a) which
no rational person would risk except for some substantial
benefit and (b) which may be inflicted through the procedures
of the criminal law.
(ii) Strike from the list all inhumane penalties.
(iii) Type the remaining penalties, rank them within each type,
and then combine rankings into a scale.
(iv) List all crimes.
(v) Type the crimes, rank them within each type, and then
combine rankings into a scale.
(vi) Connect the greatest penalty with the greatest crime, the
least penalty with the least crime, and the rest accordingly.
(vii) Thereafter: type and grade new penalties as in step 2 and
new crimes as in step 4, and then proceed as above.23
As many commentators have pointed out, the paramount
problem for Davis is that this procedure does not gauge the same
thing that is gauged by his hypothetical auction. Whereas the
latter device is supposed to measure the value placed by potential
criminals on the avoidance of penalties for the commission of
various crimes, the seven-step method focuses on the fearsomeness
of various crimes in the eyes of potential victims. Within each
category of crimes envisaged by the seven-step procedure, the
offenses are to be ranked not according to the benefits which
they bestow upon their perpetrators (however measured), but
instead according to the assessments of those crimes by the
people who might fall prey to them. As Davis writes: “The least
crime [within each category] is the one a rational person would
prefer to risk (all else equal) given a choice between risking it
and risking any other [crime] of that type; the next least is the
one a rational person would prefer to risk given a choice
between it and any other of that type except the least; and so
on.”24 Since there are no reasons to expect that one’s ranking of
23
‘Ethics,’ 93 (1983), pp. 736–737.
24
Ibid., p. 739.
crimes by reference to their fearsomeness in the eyes of

potential victims will match (or even come close to matching)
one’s ranking of crimes by reference to their benefits in the eyes
of potential malefactors, there are no reasons to think that
Davis’s two methods for assigning punishments to crimes will
tally. The two sets of rankings will probably converge at some
points, of course, but they will diverge at numerous other points.
Thus, even if we leave aside all the problems that afflict each set
of rankings in isolation, the incongruity between the two sets is
a difficulty that confronts anyone who hopes to draw upon
Davis’s work for guidance in the fixing of punishments.
Davis persistently defends himself against the charge of
having presented two procedures that yield dissimilar sets of
rankings, as he contends that the procedures will in fact arrive at
the same results. However, his arguments on that score are far
from compelling. He points out that the licenses for each type of
crime in his scenario of the auction are limited in ways that
reflect the degree of apprehension felt by members of the public
toward each type of crime. Similarly, the licenses can get
purchased by people who wish to keep would-be criminals from
using them. Moreover, given that a license guarantees only an
ultimate pardon rather than success in the commission of a crime,
a society with a crime-license auction can still aptly devote more
resources to thwarting felonies than to thwarting misdemeanors.25
In all these ways, the outcomes of the hypothetical auction are
shaped by the very anxieties of the public that are taken squarely
into account under the seven-step procedure. Thus, Davis
concludes, “our imagined [auction] and the seven-step method
each reproduce the structure underlying the other.” He confidently
exclaims: “Contrary to what critics claimed, we have no reason
to expect the two procedures to produce inconsistent results. The
two are alternate ways of doing the same thing.”26
Albeit the factors highlighted by Davis do bring the hypothetical
auction closer to the seven-step method, they are not nearly
25
Michael Davis, Justice in the Shadow of Death, 1996, pp. 266–273.
26
Ibid., p. 269.
enough to reconcile the results of those two approaches in all

contexts. What remains true is that the latter method ranks
crimes by reference to their fearsomeness in the eyes of
potential victims while the former device ranks crimes partly
by reference to their attractiveness in the eyes of potential
perpetrators. In a wide range of contexts, then, the two
procedures will fail to converge.
Let us contemplate here a somewhat modified version of an
example adduced by Don Scheid for a slightly different
purpose.27 Suppose that robbery is feared by the typical person
considerably more than is securities fraud, even though the latter
type of crime is generally more lucrative and physically less
dangerous for its perpetrators. We can suppose that the chances
of being stymied are approximately equal between these two
kinds of crimes. We can likewise suppose that, in the hypothetical
auction, the number of licenses to commit robbery is roughly
the same as the number of licenses to commit securities fraud
‒ since the greater fearsomeness of the former crime is
counterbalanced by the greater economic costliness of the latter.
Thus, in application to these credible circumstances, Davis’s
seven-step procedure will generate the conclusion that robbery
is to be punished more severely than securities fraud, whereas
his hypothetical auction will generate the conclusion that
securities fraud is to be punished more severely than robbery. Of
course, if the specified circumstances were to be tweaked
suitably, the seven-step method and the hypothetical auction
could be made to tally. However, the point is precisely that
the reconcilability of the two procedures will be dependent
on the contingencies of various situations. In a wide range of
circumstances, the two methods lead to divergent results (and
sometimes even to starkly opposed results, as in this paragraph’s
example).
27
Don E. Scheid, Davis, Unfair Advantage Theory, and Criminal Desert,
in ‘Law and Philosophy,’ 14 (1995), pp. 394–395.
3.4. A fourth query
Let us now ponder an even more sweeping objection to

Davis’s scenario of the auction for crime-licenses. This objection,
adeptly pressed by Scheid, 28 contests the very coherence of
Davis’s scenario by showing that it has to presuppose the
schedule of punishments which it is designed to establish. To see
why the hypothetical auction is afflicted by vicious circularity,
we should attend more closely to what the bidders in the auction
are seeking to purchase.
When somebody bids in the auction for a license to commit
a crime of some kind, she is endeavoring to acquire a pardon
that will enable her to avoid punishment for the perpetration of
that crime. (Let us leave aside here the potential victims who bid
for licenses in order to prevent villainous people from obtaining
them. Any complications arising from such bids will hardly
redound to Davis’s benefit.) Thus, in addition to some important
ancillary concerns such as the likelihood of one’s being thwarted
in one’s criminality and the danger posed to oneself by one’s
undertaking of that criminality, two main factors will determine
the size of anybody’s bid for some license: (i) the favorableness
or unfavorableness of her attitude toward committing the type of
crime that is covered by the license; and (ii) the importance to
her of avoiding the sanctions that are attached to that type of
crime.
My discussion so far has concentrated solely on the first of
those main factors along with the ancillary concerns. That first
main factor is indeed of great significance. If somebody is not at
all disposed to engage in armed robbery, for example, he will
not submit any bid for a license to commit armed robbery.
Similarly, if he is only weakly tempted to engage in armed
robbery, he will not be willing to pay very much for such a license.
Still, weighty though those considerations are in influencing the
size of a person’s bid, the role of the second main factor
enumerated above is also crucial.
28
Ibid., pp. 395–397.
Suppose that Marvin is quite strongly attracted to the

prospect of carrying out an armed robbery. Before he can
informedly submit a bid for a license to commit such a crime, he
needs to know the severity of the sanctions that will be avoided
through his possession of the license. If the likely term of
imprisonment for somebody convicted of armed robbery is one
week, then Marvin will be far less strongly disposed to expend
large quantities of money on a license than he will if the likely
term of imprisonment for somebody so convicted is ten years.
Thus, until Marvin knows the magnitude of the penalty from
which he will be gaining an exemption through his purchase of a
license, he does not have any informed basis for deciding how
much to bid. He does not know what he will be buying. A
parallel point applies, naturally, to everyone else who is at all
inclined to bid for any of the licenses in Davis’s auction.
Information concerning the sanctions attached to each type of
crime must be available to the parties who participate in the
auction, if their bids are to be more than groundless conjectures.
Without such information, the participants in the auction will not
know what they are seeking to purchase.
Accordingly, before the parties in the hypothetical auction
can reasonably bid for any crime-licenses, they need to know the
sizeableness of the penalties from which those licenses will
shield them. What is so problematic for Davis, of course, is that
the parties’ bids are supposed to serve as the basis for fixing the
levels of those penalties. His scenario of the auction, despite its
initial plausibility, has turned out to be incoherent.
4. Self-indulgence
More promising than either Sher’s focus on freedom or

Davis’s scenario of an auction is the proposition that the gain
accruing to every criminal by virtue of his or her wrongdoing
consists in self-indulgence. Nevertheless, this proposition has to
be construed carefully. Understood as a rather facile claim, the
proposition is plainly unsustainable and has rightly been derided
by critics of retributivism. Understood as a more subtle claim,

however, the thesis concerning self-indulgence is the best means
of upholding desert-focused retributivism as a credible theory of
punishment. To be sure, such a theory is scarcely unproblematic
and in particular is incapable of justifying the use of capital
punishment (a fact that will not trouble most of the theory’s
proponents). All the same, it is considerably more powerful as a
general theory of punishment than are any of the alternative
varieties of desert-focused retributivism. Before we examine the
preferable rendering of the thesis about self-indulgence, we
should briefly probe the more dubious rendering for which it
might be mistaken.
4.1. A manifestly unsustainable version of the thesis
When desert-focused retributivists contend that the unjust

advantage gained by every criminal through his or her wrongdoing
is self-indulgence, they might be understood as asserting that
every criminal through his or her misconduct has forgone the
disagreeable burdens of law-abidance that are borne by everyone
else. According to such a thesis, the unfair gain arising from
every instance of criminality consists in an escape from the
hardships involved in hewing to legal requirements. While other
people toil strenuously to comply with those requirements, a
criminal indulges himself by laying aside such toil. Unlike his
fellow citizens, he does not undertake the hard work of stifling
the propensities to which the law forbids him to succumb.
When the proposition about the self-indulgence of criminals
is elaborated along these lines, it is highly vulnerable to the sorts
of objections that have been raised against it by Richard Burgh
and David Dolinko and other critics of retributivism. 29 They
29
Richard Burgh, Do the Guilty Deserve Punishment?, in ‘Journal of
Philosophy,’ 79 (1982), pp. 207–210; David Dolinko, Some Thoughts about
Retributivism, in ‘Ethics,’ 101 (1991), pp. 545–546; Jeffrie Murphy, The
State’s Interest in Retribution, in ‘Journal of Contemporary Legal Issues,’ 5
(1994), p. 290.
have pointed out that the vast majority of people are much less
strongly inclined to engage in monstrous crimes such as
cannibalistic murder than to undertake far milder crimes such as
tax evasion or speeding or shoplifting. For nearly everyone,
abstaining from the perpetration of cannibalistic murder is
utterly effortless, whereas abstaining from the perpetration of
the milder crimes just mentioned is often a matter of conscious
self-discipline. Thus, if we were to accept the preceding
paragraph’s analysis of the unfair advantage that is gained by
every criminal through his or her wrongdoing, we would be
committed to the conclusion that somebody who performs an act
of cannibalistic murder has thereby attained a much smaller
unfair advantage than has somebody who drives above the speed
limit or who understates his income on his tax return. Ergo, a
cannibalistic murderer would deserve a much lighter sentence
than would someone convicted of speeding or of tax evasion.
Such a conclusion is patently ridiculous, and Burgh and Dolinko
are right to dismiss it. If desert-focused retributivism is to be
strengthened through its drawing of attention to the self-
indulgence of criminals, such a reorientation cannot concentrate
on the intensity of people’s desires to commit misdeeds of
various types.
4.2. A tenable version of the thesis
Instead of adverting to the greater or lesser intensity of

people’s proclivities to engage in sundry criminal activities, the
advocates of desert-focused retributivism should advert to the
gravity of those activities. By so doing, they will be addressing
the extent to which those activities deviate from norms of law-
abidingness and non-injuriousness. Subject to some qualifications
that will be noted shortly, the extent of the deviation from those
norms that is entailed by any given act of criminality is what
constitutes the degree of self-indulgence that has been exercised
by the culprit who has performed the specified act. The size of
the deviation is the size of the unfair gain or advantage which
the culprit has acquired simply by virtue of carrying out the

crime that he has committed. Whether he has also benefited in
other ways ‒ by experiencing some feelings of gratification, for
example ‒ is neither here nor there, for the purposes of desert-
focused retributivists. Any such additional benefits might
appropriately be handled by non-punitive legal proceedings
(restitutionary legal proceedings, for instance), but the punishments
in a desert-focused system of criminal justice are designed to
nullify the unfair gains that are intrinsic to criminal wrongdoing.
When somebody perpetrates a criminal act, he uses his body
and other objects or persons in ways that are legally proscribed.
His maneuvering of his body and other objects or persons
through regions of space is such as to be eschewed by everybody
who wants to avoid contravening any legal requirements. By
going ahead with such maneuvering despite its forbiddenness, a
criminal gains something valuable that is not likewise gained by
any law-abiding citizen, and he thereby obtains an advantage
over all law-abiding citizens. His manipulation of his body and
other objects or persons through regions of space is valuable not
because he relishes it (though, of course, many criminals do
relish what they have done), but precisely because that manipulation
of his body and other objects or persons is legally forbidden. Since
he has not rendered his conduct legally permissible by securing a
change in the law or by purchasing a special exemption from the
requirement(s) which he has breached, his employment of his
body and other objects or persons through portions of space
has temporarily misappropriated those very portions of space.
Because law-abiding citizens have not engaged in any similar
misappropriations, he has placed himself at an advantage vis-à-
vis them. That advantage obtains even if his criminal endeavors
are thwarted and come to nought. Regardless of whether he gets
and retains any other advantages from those endeavors, the
aforementioned misappropriation is what sets him apart from
law-abiding citizens and is what renders him liable to punishment.
It is the gain intrinsic to every act of criminal wrongdoing.
The extent of that gain is determined not by the sizeableness
of the portions of space that have been misappropriated, but by
the gravity of the purposes to which they have been put.30 The
more seriously wrong those purposes are, the greater the value
of the misappropriation. To see this point, we need to attend to
the distinction between offer prices and asking prices. An offer
price is the maximal amount that someone is able and willing to
pay in order to acquire something, whereas an asking price is the
minimum amount that someone would demand in return for
transferring something to somebody else. 31 Among the many
other shortcomings in Davis’s scenario of the hypothetical
auction is his assumption that the offer prices of the bidders for
licenses are the dispositive indicators of the value of the unfair
advantages that are gained by criminals. Rather, the value of any
criminal’s misappropriation is determined by the asking price of
the society in which his crime occurs. Of course, I am not here
suggesting that anything akin to the scenario of the hypothetical
auction should be reintroduced with a focus on asking prices
rather than offer prices. That scenario suffers from too many
major weaknesses to be worth reviving in any form. Instead, the
point here resides simply in observing that there is quite a
straightforward sense in which the portions of space temporarily
misappropriated by a criminal are valuable. Had the criminal
temporarily acquired those portions of space for his purposes
through some sort of exemption-procuring payment that could
meet the society’s asking price, the acquisition would have cost
him dearly indeed. In exactly that sense, the value of his
misappropriation is given by the seriousness of his crime.
Indeed, with the shift from offer prices to asking prices, the
version of desert-focused retributivism recounted here is quite
close to Davis’s seven-step method rather than to his hypothetical
30
Although I refer to illegitimate purposes here and elsewhere in this
discussion, my remarks are not confined to intentional wrongdoing. Criminality
impelled by any culpable frame of mind is covered by my discussion.
31
In quite a different context, the offer/asking distinction is explored at
length in Duncan Kennedy, Cost-Benefit Analysis of Entitlement Problems: A
Critique, in ‘Stanford Law Review,’ 33 (1981), pp. 401–421. I myself have
invoked that distinction in a context more closely relevant to the present
discussion: cf. Matthew Kramer, In the Realm of Legal and Moral Philosophy,
1999, pp. 142–143.
auction. On the one hand, pace the seven-step method, the

objective seriousness of various crimes does not necessarily
accord fully with the extent to which those crimes are respectively
feared by members of the public. On the other hand, the seriousness
will indeed correspond closely (even though not always fully) to
the fear. At any rate, what is common to the seven-step procedure
and the version of desert-focused retributivism just described is
their recognition that the value of a criminal’s unfair gain is to
be gauged from a societal perspective rather than from the
perspective of the criminal.
One notable feature of this reconception of desert-focused
retributivism, indeed, is that it clearly differentiates criminal law
from tort law by concentrating on the unfairness of any crime
toward a society as an overarching unit. Though every crime
that victimizes some individual(s) is of course directly harmful
and unjust to any such individual(s), the injustice rectified in a
desert-focused system of criminal law is that which has been
committed against the whole community whose normative
protection of the victimized individual(s) has been flouted. When a
criminal employs his own body and certain other objects or persons
through regions of space in furtherance of his nefarious purposes,
he contravenes that normative protection and thus perpetrates an
injury against the community as a whole (irrespective of
whether he succeeds, even briefly, in realizing his objectives).
Punishment rectifies that injury by imposing on the wrongdoer a
disadvantage ‒ in the form of imprisonment or some other
disciplinary measure ‒ that counterbalances the valuable advantage
which he has gained simply by dint of pursuing his criminal
purposes. It counterbalances that advantage by resubordinating the
criminal’s wrongful ends to the community’s proper ends.
Although Finnis intermittently writes as if he were in
agreement with Sher’s misconceived account of the unfair advantage
gained by every criminal, his overall exposition of that advantage
is in fact along the lines elaborated here. 32 His exposition
32
III.11, 2011; Id., Natural Law and Natural Rights, 1980, pp. 262–264; Id.,
Collected Essays: Human Rights & Common Good, Vol. III.12, 2011.
highlights the egalitarian impetus of desert-focused retributivism,

as he affirms that the role of desert-focused punishments is “to
maintain a rational order of proportionate equality, or fairness,
as between all members of the society.”33 Despite his occasional
lapses into Sher’s language, Finnis usually makes clear that it is
a criminal’s self-indulgence ‒ rather than some extra share of
freedom supposedly accruing to a criminal ‒ that constitutes the
gain which is intrinsic to every offense and which is properly
counteracted through punishment. As he writes: “Punishment
does not negate the crime, but it does negate, cancel out, the
advantage the offender gained in the crime ‒ the advantage not
necessarily of loot or psychological satisfaction, but of having
pursued one’s own purposes even when the law required that
one refrain from doing so.” 34 By reasserting the priority of a
community’s moral purposes over the malign purposes of a
criminal, punishment restores the fair social arrangements that
have been disrupted by the criminal’s wrongdoing: “What is
done cannot be undone. But punishment rectifies the disturbed
pattern of advantages and disadvantages throughout a community
by depriving the convicted criminal of his freedom of choice,
proportionately to the degree to which he had exercised his
freedom, his personality, in the unlawful act.”35 Hence, the aim
of punishment based on desert-focused retributivism lies in
“restoring equality between offenders and [the] law-abiding, and
cancelling the wrongdoer’s unfair profit (advantage over them).”36
Again, the restorative role expounded here by Finnis is
distinct from the restorative role of awards of damages in tort
law. Damages are awarded against tortfeasors to compensate
their immediate victims for the harms which those victims have
suffered. By contrast, punishments ‒ according to desert-focused
33
John Finnis, Natural Law and Natural Rights, 1980, p. 262.
34
III.12, 2011, p. 177.
35
John Finnis, Natural Law and Natural Rights, 1980, p. 263, footnote
omitted.
36
III.12, 2011, p. 177.
retributivists ‒ are imposed upon criminals to repair any serious

disruptions of a society’s moral order and to uphold the
egalitarianism of its social and economic relationships. Though
the extent of the harm inflicted by a crime on any immediate
victim(s) is a key determinant of the crime’s gravity and
consequently of the magnitude of its damage to a society’s moral
order, the punishment imposed in response to a crime is undertaken
on behalf of the entire society rather than specifically on behalf of
the immediate victim(s). Any such victim V stands to benefit
from the subjection of the crime’s perpetrator to punitive
measures, of course, but the benefit accrues to V in her status as
a member of a moral community rather than in her status as an
immediate victim. Every other member of the moral community
benefits likewise, as the priority of the community’s upright
purposes over the nefarious purposes of a criminal is reasserted.
Far from being a doctrine of revenge, desert-focused retributivism
is a doctrine of impersonal justice.
4.3. Some qualifications
If desert-focused retributivism is to partake of any credibility

as an account of the worthy purposes of punishment, it has to
be qualified in a few important respects. For one thing, its
pertinence in application to any given society is dependent in
two ways on the realization of liberal-democratic ideals. First,
the saliently egalitarian tenor of desert-focused retributivism
confines its justificatory reach to liberal-democratic societies.
Only in such a society is the ideal of human equality realized
sufficiently to render germane the proposition that punitive
measures serve to effectuate that very ideal.37 Only in such a
society do the citizens form a moral community of the sort
envisaged by desert-focused retributivists when they ascribe to
punishment the role of restoring a society’s moral order.
37
For a suggestion along these lines, see John Finnis, Natural Law and
Natural Rights, 1980, p. 263, n. 1.
Second, desert-focused retributivism as a theory of punishment

has to be combined with a suitable liberal-democratic theory of
criminalization, if it is to respond adequately to objections that
have been raised by critics of retributivism. For example, as
Dolinko and Shafer-Landau have separately contended, desert is
not in itself the key to legal punishment; somebody can deserve
to suffer for his or her misdeeds even though the imposition of
legal punishments for those misdeeds would be morally
untenable.38 Suppose that Mark has callously jilted his long-time
lover Jane for a younger woman or for some other selfish reason.
Although Jane may well feel devastated by her lover’s
abandonment of her, and although Mark undoubtedly deserves
to receive his come-uppance for his unfeeling treatment of her,
the subjection of him to criminal penalties for his misbehavior
would be morally unsustainable ‒ and not only because his
conduct has in fact violated no criminal prohibitions. Even if
there were a criminal-law mandate forbidding the callous and
selfish rebuffing of one’s lover, neither the punishment of Mark
nor the punishment of anyone else under that mandate would be
morally appropriate. Desert-focused retributivism cannot in
itself account for the moral illegitimacy of subjecting Mark or
anybody else to punishment under the imagined mandate. To
account for that point, a liberal-democratic theory of criminalization
is needed. When the laws in a system of governance conform to
the prescriptions of such a theory, Dolinko’s and Shafer-
Landau’s worries about the gap between somebody’s deserving
to suffer and somebody’s deserving to undergo legal punishment
will have been accommodated and defused. In other words, a
necessary condition for the satisfactoriness of desert-focused
retributivism as an account of the worthy ends of punishment
is that it be conjoined with a liberal-democratic theory of
criminalization. Only when it is so conjoined, and only when the
notion of negative desert which it invokes is understood to be
38
David Dolinko, Some Thoughts about Retributivism, in ‘Ethics,’ 101
(1991), pp. 542–4; Russ Shafer-Landau, The Failure of Retributivism, in
‘Philosophical Studies,’ 82 (1996), pp. 289–292.
trained solely on breaches of criminal-law mandates, does the

doctrine of desert-focused retributivism adequately overcome
the problem broached by Dolinko and Shafer-Landau.
A further qualification is needed, however. As elaborated so
far, the doctrine of desert-focused retributivism appears to
presuppose that everyone within the jurisdiction of a liberal-
democratic regime is under a moral obligation to comply with
each of the regime’s legal mandates in all circumstances to
which any such mandate is applicable. Yet, as I have argued
elsewhere, 39 there can be circumstances in which somebody
does not have any ethical reason at all ‒ much less any moral
obligation ‒ to comply with a particular benign legal mandate
promulgated by a liberal-democratic regime. Hence, as a
justificatory account of the role of punishment, desert-focused
retributivism pertains only to situations in which people are
indeed under moral obligations to comply with the terms of the
benign legal mandates which they contravene.40 Extended to a
situation in which somebody is not under a moral obligation
of that kind, desert-focused retributivism would call for the
imposition of a punitive measure when no such measure is
legitimate. Hence, if this species of retributivism is to retain
credibility as a justificatory doctrine, its sphere of application
must be delimited in the manner suggested here.
39
Matthew Kramer, In Defense of Legal Positivism, 1999, pp. 285–287.
40
In some contexts, such obligations can obtain simply because noncompliance
with the terms of certain benign legal mandates would foster disrespect for
the law generally (either on the part of the noncompliant person or on the part
of other people). However, it is not the case that violations of such mandates
always produce ‒ or are always likely to produce ‒ some effects of that kind
or any other detrimental effects.
Bibliography
Bradley, Gerard, Retribution and the Secondary Aims of Punishment, in

‘American Journal of Jurisprudence,’ 44 (1999), pp.105–123.
Burgh, Richard, Do the Guilty Deserve Punishment?, in ‘Journal of Philosophy,’
79 (1982), pp. 193–210.
Davis, Michael, How to Make the Punishment Fit the Crime, in ‘Ethics,’ 93
(1983), pp. 726–752.
— Harm and Retribution, in ‘Philosophy and Public Affairs,’ 15 (1986), pp.
236–266.
— Criminal Desert, Harm, and Fairness, in ‘Israel Law Review,’ 25 (1991),
pp. 524–48.
— Justice in the Shadow of Death, Rowman & Littlefield, Lanham, MD,
1996.
Dolinko, David, Some Thoughts about Retributivism, in ‘Ethics,’ 101 (1991),
pp. 537–559.
— Mismeasuring ‘Unfair Advantage:’ A Response to Michael Davis, in
‘Law and Philosophy,’ 13 (1994), pp. 493–524.
Duff, R. Anthony, Auctions, Lotteries, and the Punishment of Attempts, in
‘Law and Philosophy,’ 9 (1990), pp. 1–37.
Finnis, John, The Restoration of Retribution, in ‘Analysis,’ 32 (1972), pp.
131–135.
— Natural Law and Natural Rights, Oxford University Press, Oxford, 1980.
— Retribution: Punishment’s Formative Aim, in ‘American Journal of
Jurisprudence,’ 44 (1999), pp. 91–103.
— Collected Essays: Human Rights & Common Good, Vol. III, Oxford
University Press, Oxford, 2011.
Hirsch, Andrew von, Proportionality in the Philosophy of Punishment: From
‘Why Punish?’ to ‘How Much?,’ in ‘Criminal Law Forum,’ 1 (1990), pp.
259–290.
Kennedy, Duncan, Cost-Benefit Analysis of Entitlement Problems: A Critique,
in ‘Stanford Law Review,’ 33 (1981), pp. 387–445.
Kramer, Matthew, In Defense of Legal Positivism, Oxford University Press,
Oxford, 1999.
— In the Realm of Legal and Moral Philosophy, Macmillan Press, London,
1999.
— The Quality of Freedom, Oxford University Press, Oxford, 2003.
Markel, Dan, State, Be Not Proud: A Retributivist Defense of the Commutation of
Death Row and the Abolition of the Death Penalty, in ‘Harvard Civil
Rights-Civil Liberties Law Review,’ 40 (2005), pp. 407–480.
— Executing Retributivism: Panetti and the Future of the Eighth Amendment,
in ‘Northwestern University Law Review,’ 103(2009), pp. 1163–1222.
Morris, Herbert, Persons and Punishment, in ‘The Monist,’ 52 (1968), pp.
475–501.
Murphy, Jeffrie, The State’s Interest in Retribution, in ‘Journal of Contemporary
Legal Issues,’ 5 (1994), pp. 283–298.
Reiman, Jeffrey, Why the Death Penalty Should be Abolished in America, in

Louis Pojman and Jeffrey Reiman (eds.), The Death Penalty: For and
Against, Rowman & Littlefield, Lanham, MD, 1998, pp. 67–132.
Ridge, Michael, If the Price Is Right: Unfair Advantage, Auctions, and
Proportionality, in ‘APA. Newsletter on Philosophy and Law,’ 3 (2004),
pp. 81–86.
Shafer-Landau, Russ, The Failure of Retributivism, in ‘Philosophical Studies,’
82 (1996), pp. 289–316.
Giuseppe Lorini 61
Giuseppe Lorini
Revenge as Universal Legal Structure vs. Revenge as

Individual Legal Institution
1. Revenge as an ancient kind of sanction
My contribution to the universality of punishment centres on

the universality of a particular kind of sanction: revenge. As the
Austrian legal philosopher Hans Kelsen argues, blood revenge is
“the earliest socially organised sanction.” 1 Also, a famous
antagonist of Kelsen, the Austrian jurist and sociologist Eugen
Ehrlich reflects on the role played by revenge in ancient societies
when he proposes the following image of the pre-history of law:
“In the so-called pre-history of law there are as yet no courts.
Quarrels are either peacefully settled through compromise or
dragged out in bloody feuds. Generally they are based on murder,
mayhem, kidnapping, rape, theft, cheating. Courts begin to
appear later.”2
It is important to note that this pre-historical law is not only
a non-written law, but also a law without “legal sentences” (a
law without Rechtssätze). In spite of the strong disagreements
that separate their images of law, these two strands of reflections
on revenge in ancient societies, by Kelsen and Ehrlich respectively,
have something in common: both investigate the nature and the
function of revenge, starting with an analysis of revenge purely
and simply, revenge per se, revenge as a universal legal structure
independent of a particular legal system. The idea of revenge as
a universal legal structure is the opposite of the idea of revenge
as a legal ídion: revenge as a specific legal institution relative to
1
Hans Kelsen, The Law as Specific Social Technique, in ‘The University of
Chicago Law Review,’ 9 (1941), p. 77.
2
Eugen Ehrlich, Sociology of Law, in ‘Harvard Law Review,’ 36 (1922),
p. 3.
a particular legal system and characterised (or perhaps we

should say “constituted”) by the norms of that legal system. A
paradigmatic example of revenge as a legal ídion is the
Barbagian Revenge described and investigated by the Sardinian
jurist and philosopher Antonio Pigliaru in his book Barbagian
Revenge as a Legal System [La vendetta barbaricina come
ordinamento giuridico] published in 1959. In this book, Pigliaru
investigates a specific legal institution, the so-called “Barbagian
Revenge” characterising the folk law of the pastoral community
living in the region called Barbagia, a mountainous region in the
centre of the island of Sardinia, and more precisely in the
province of Nuoro.3
In my essay I should like to reflect on this particular legal
ídion of Barbagian Revenge, or more precisely on the image of
Barbagian Revenge proposed by Pigliaru’s work.
2. Barbagian revenge and its code
In his famous Code of Barbagian Revenge, Pigliaru reconstructs

in 23 paragraphs the non-written norms that rule (or constitute)
the legal phenomenon called “Barbagian Revenge.”4 The most
famous of nomographic sentences (i.e. sentences describing norms,
from the two ancient Greek words graphein “to write” and nomos
“norm”) that constituted the 23 paragraphs of the Code is the
first one: “The offence must be avenged” [L’offesa deve essere
vendicata]. With the nomographic sentences of his Code,
Pigliaru gives written shape to the non-written norms of Barbagian
law, of which we find traces in Barbagian legal proverbs. 5 I
3
On folk laws, see Alison Dundes Renteln and Alan Dundes (eds.), Folk
Law: Essays in the Theory and Practice of Lex Non Scripta, 1995.
4
The idea that Barbagian Revenge is an institution, an eidos, constituted
by its own rules, appears in Amedeo Giovanni Conte, Némesis. Filosofia
della vendetta, in Giuseppe Lorini and Michelina Masia (eds.), Antropologia
della vendetta, 2015, pp. 135–141.
5
In the same years in which Pigliaru was investigating Barbagian
pastoral law, analogous nomographic investigations about folk laws were
Giuseppe Lorini 63
should like to reflect especially on one of the nomographic

sentences included in the Code of Barbagian Revenge.
It is important to note that the nomographic sentences of the
Code are in the Italian language, a language different from that
used by the Barbagian pastoral community: the Barbagian
dialect. As Pigliaru himself emphasises, the two important parts
of the nomographic activity that produced the Code of Barbagian
Revenge are:
(i) the translation of the norms reconstructed on the basis of
interviews with Barbagian shepherds from the Barbagian
dialect (one of the Sardinian dialects) into Italian;
(ii) the reformulation in legal language of “dialectal ethico-legal
expressions, not immediately adaptable to the technical
structure of a specialised legal language.” 6
3. Why the label ‘Sardinian banditism’ is wrong
At the origin of Pigliaru’s investigation of Barbagian Revenge

there is the phenomenon described by the label “Sardinian
banditism.” Here are the words by which Pigliaru introduces his
reflections at the beginning of his book Barbagian Revenge as a
Legal System: “Whoever focuses their attention on the complex
phenomenon of Sardinian banditism, in an attempt to know all
its elements and essential components, cannot ignore the fact
that the practice of revenge is a very important and essential aspect
of the phenomenon itself, of which revenge is a fundamental
element.”7
But, as Pigliaru says, the centrality of the practice of revenge
for that complex phenomenon called “Sardinian banditism”
developed by the American economist Edward Banfield, The Moral Basis of

a Backward Society, 1958, and the Danish sociologist Verner Goldschmidt,
The Greenland Criminal Code and its Sociological Background, in ‘Acta
Sociologica,’ 1 (1956), pp. 217–255.
6
Antonio Pigliaru, La vendetta barbaricina come ordinamento giuridico,
1959, p. 100.
7
Ibid., p. 4.
must not deceive: “Even though the practice of revenge, within

the complex phenomenon of Sardinian banditism, immediately
impresses everyone who observes, with a correct methodology, the
historical development of the phenomenon itself, it would be a
mistake to conclude that the Barbagian practice of revenge is
exhausted in the framework of banditism, as inextricably connected
with the practice of banditism itself.”8
For Pigliaru, the hermeneutic error in the label “Sardinian
banditism” arises from the fact that the code of revenge works
generally within a criminal organisation, within an organised
form of banditism (mafia, camorra, etc.), as “the organisation’s
exclusive means of pressure on its own members and also on
other people outside that criminal organisation.” 9 One cannot
infer from this, however, that every social system characterised
by the use of revenge as an instrument of pressure is necessarily
a criminal system.
4. The hermeneutic shift by Antonio Pigliaru: from “crime”

to “revenge”
In his investigation of Barbagian revenge practice, Pigliaru

makes a categorical shift which is essential for understanding the
ingeniousness of his anthropological reconstruction of the criminal
phenomenon called “Sardinian banditism.” This hermeneutic
shift can be compared to a famous optical illusion called the
“duck-rabbit illusion.” As we know, the “duck-rabbit illusion”
refers to an image that can be seen either as a duck or as a rabbit.
This optical phenomenon was discovered and studied by the
American psychologist Joseph Jastrow, and made famous by
Ludwig Wittgenstein, who uses it in his Philosophical Investigations.
8
Ibid., pp. 5–6.
9
Ibid., p. 6.
Giuseppe Lorini 65
This is how the Calabrian anthropologist Luigi M. Lombardi

Satriani reconstructs the categorical shift by Pigliaru. Satriani
argues that the traditional point of view on Sardinian banditism
“can be overturned only if you begin to see the criminal act not
as a ‘crime’ (since it is a crime only if it is reduced, from an
external point of view, to its effect: the transgression of a legal
norm), but as a homogeneous action belonging to a different
organic culture, an action prescribed by a different set of legal
norms, a punishment sanctioned by a different legal system: a
folklore law.” And Satriani adds, “the existence of a different
law, co-present with the state law, leads to a different appraisal
of criminal phenomena.”10
Pigliaru’s hermeneutic shift on Sardinian banditism could be
better understood in the light of Hans Kelsen’s ontology of legal
reality.
5. Barbagian Revenge as a “semantic act”

In his Pure Theory of Law, Kelsen argues that legal facts
are constituted by two elements: the first element is an
10
Luigi M. Lombardi Satriani, Introduzione, in Antonio Pigliaru, Il
banditismo in Sardegna. La vendetta barbaricina come ordinameno giuridico,
2000, p. 46. To the investigation and reconstruction of another folk law,
Calabrian folk law, Luigi M. Lombardi Satriani and Mariano Meligrana have
dedicated the book Hegemonic Law and Folklore Law. Calabria in the
Studies of Legal Folklore [Diritto egemone e diritto popolare. La Calabria
negli studi di demologia giuridica], 1995.
external event perceptible by our senses that occurs in a

temporal-spatial dimension; the second element is a noetic
structure, a meaning.
Despite external events that are the substrata of legal
phenomena, for Kelsen “[t]he legal meaning of an act […] is not
immediately perceptible by the senses, in the way in which, for
instance, the colour, solidity, weight, or other physical properties
of an object can be perceived.”11 He continues: “If you analyse
any body of facts interpreted as ‘legal’ or somehow tied up with
law, such as a parliamentary decision, an administrative act, a
judgement, a contract, or a crime, two elements are distinguishable:
one, an act or series of acts – an event occurring at a certain time
and in a certain place, perceived by our senses: an external
manifestation of human conduct; two, the legal meaning of this
act, that is, the meaning conferred upon the act by the law.”12
And the example given by Kelsen is: “People assembled in a
large room make speeches, some raise their hands, others do not
– this is an outward event. Its meaning is that a statute is being
passed, that a law is being created.”13 For Kelsen,14 therefore,
legal meaning is ascribed to certain material facts by norms
whose content is such as to make the imposition of that meaning
on those facts possible: “The specifically legal meaning of this
act is derived from a ‘norm’ whose content refers to the act; this
norm confers legal meaning on the act, so that it may be
interpreted according to this norm. The norm functions as a
scheme of interpretation [Deutungsschema].” 15 According to
11
Hans Kelsen, Pure Theory of Law, 1967, pp. 2–3.
12
Ibid., p. 2.
13
Ibid.
14
Ibid., p. 4.
15
Beside Kelsen, at least three other legal philosophers (Emil Lask,
Czesław Znamierowski, and Luís Cabral de Moncada), even though they
adopt different philosophical perspectives and make use of different
philosophical vocabularies, consider meaning as an essential element of legal
phenomena. See Emil Lask, Rechtsphilosophie, in Wilhelm Windelband (ed.)
Die Philosophie im Beginn des 20. Jahrhunderts. Festschrift für Kuno
Fischer, 1905, Vol. II, pp. 269–320; Czesław Znamierowski, Podstawowe
pojęcia teorji prawa. Część I. Układ prawny i norma prawna, 1924; Luís
Giuseppe Lorini 67
Kelsen, a natural act (in other words: a brute act, a psycho-

physical act) can be the substratum of two different legal
meanings. The example he gives is: killing a man is a natural act
that can have both the legal meaning of “murder,” and the legal
meaning of “execution of the death penalty.”
In the case of Barbagian Revenge, the same natural act (for
example: killing a man) is simultaneously the substratum of two
different legal meanings: the legal meaning of “crime” and the
legal meaning of “revenge” (two opposite meanings from a
deontic point of view: killing a man as a crime is a “forbidden”
act, killing a man as an act of Barbagian Revenge is a
“mandatory” act).
The specificity of the phenomenon investigated by Pigliaru
consists in the co-presence of two different legal meanings made
possible by the co-presence of two different legal systems. As
Pigliaru writes: “Here indeed we have a conflict between two
legal systems, the first one of reflexive origin, and it is the legal
system which is identified with the State, the second one of
traditional and spontaneous formation, characteristic of a
community organised on its own basis and refractory to the
outside experience of a State legal system.”16
The two legal systems (the State legal system and the
Barbagian legal system) have two different deontic codes (two
different semiotic codes of deontic signs) by which the same
natural act acquires two different legal meanings.17
Cabral de Moncada, Prefácio, in Gustav Radbruch, Filosofia do Direito,

1934, pp. VII-XXX.
16
Antonio Pigliaru, La vendetta barbaricina come ordinamento giuridico,
1959, p. 15.
17
Amedeo G. Conte writes: “A deontic code is a semiotic code in the
sense that it is a code of deontic codification, i.e. a criterion of categorisation
sub specie deontica, a canon of Gestaltung of reality by deontic Gestalten.”
(Amedeo G. Conte, Codici deontici, in Intorno al “codice.” Atti del terzo
convegno della Associazione italiana di studi semiotici (AISS). Pavia, 1975,
1976, p. 22.)
6. Self-interpretation of the Barbagian vengeful act
The semantic nature of the Barbagian vengeful act is

attested by one of the nomographic sentences of Pigliaru’s Code
of Barbagian Revenge, section 19, which reads: “All actions
envisaged as offensive call for normal means of revenge subject
to the condition that they are embraced in a way which makes
duly manifest their specific nature [as revenge].”
This section belongs to the third part of Pigliaru’s Code of
Barbagian Revenge, entitled The Measure of Revenge, which
begins with the nomographic sentence: “Revenge must be
proportionate, prudent and progressive” [La vendetta deve essere
proporzionata, prudente e progressive]. But this sentence seems
not to refer to the question of the measure of revenge, but rather
to the question of the nature of the vengeful act. It seems to refer
to these two questions: What kind of acts can have the legal
meaning of revenge (in the context of Barbagian folk law)?
Does an offensive act by which you react to another offence
constitute in itself a vengeful act?
Pigliaru’s answer to the last question is negative. You could
say that, in Pigliaru’s reconstruction of Barbagian law, a
Barbagian vengeful act consists in an offensive act which also
has a further characteristic: it expresses its own legal meaning, it
shows its own legal meaning of revenge. It says: “This act is an
act of revenge.”
This “special characteristic” of acts that are the object of
social and legal knowledge, consisting in their ability to express
their own nature, their own meaning, is called by Kelsen “the
self-interpretation of the social act” [Selbstdeutung des sozialen
Materials]18. Unlike a plant, which cannot say anything about
itself to the botanist who is studying it, legal acts can say
something to a jurist who is studying them: legal acts can express
their own legal meaning: “A written or spoken act can even say
something about its own legal meaning. Therein lies a peculiarity
18
Hans Kelsen, Reine Rechtslehre. Einleitung in die rechtswissenschaftliche
Problematik, 1934, p. 3.
Giuseppe Lorini 69
of the objects of legal cognition. A plant is unable to tell the

classifying botanist anything about itself. It makes no attempt to
explain itself scientifically. But an act of human conduct can
indeed carry a legal self-interpretation: it can include a statement
indicating its legal meaning.” He continues: “[t]he scholar
investigating the law, sometimes finds a legal self-interpretation
which anticipates his own interpretation.”19
As described by Pigliaru, the Barbagian vengeful act itself
(even when it is a mute act, a non-linguistic act) necessarily
expresses something: it expresses its own specific nature of
“revenge.”20 We are faced with a semantic act (semantic, since
the meaning, the legal meaning, is an essential element of its
structure), with a cultural act (in Heinrich Rickert’s language):21
the Barbagian vengeful act (the vengeful act-token) is not a pure
material, natural, brute, psycho-physical act.22
19
Hans Kelsen, Pure Theory of Law, 1967, p. 3.
20
Paolo Di Lucia proposes for such legal acts, which are not classifiable
as either mute acts or as linguistic acts, the name of “sema-pragmatic act”
[atto semapragmatico]. For Di Lucia, examples of sema-pragmatic acts are
the handshake and the kissing of a bride (see Paolo Di Lucia, Il linguaggio
dell'atto muto, in Raffaele Caterina (ed.), La dimensione tacita del diritto,
2009, pp. 119–128). On the concept of a “mute legal act” see Rodolfo Sacco,
Mute Law, in ‘The American Journal of Comparative Law,’ 43 (1995), pp.
455–467, and Giuseppe Lorini, Semiotica dell'atto muto, in Raffaele Caterina
(ed.), La dimensione tacita del diritto, 2009, pp. 129–138.
21
On Heinrich Rickert’s ontology of cultural reality, see Heinrich
Rickert, Kulturwissenschaft und Naturwissenschaft, 1899.
22
In my essay, I argue that a vengeful act-token in Barbagian law is a
semantic act which is constituted by norms (i.e. the norms of the Barbagian
legal system). A similar, but not identical thesis, is proposed by Amedeo G.
Conte, Némesis. Filosofia della vendetta, in Giuseppe Lorini and Michelina
Masia (eds), Antropologia della vendetta, 2015, p. 137, in which he argues
that the act-type of Barbagian revenge is constituted by its rules, more
precisely by its “eidetic-constitutive rules.”
Bibliography
Aureli, Filippo, Roberto Cozzolino, Carla Cordischi and Stefano Scucchi,

Kin-Oriented Redirection among Japanese Macaques: an Expression of
a Revenge System?, in ‘Animal Behaviour,’ 44 (1992), pp. 283–291.
Banfield, Edward C., The Moral Basis of a Backward Society, The Free Press,
Glencoe (ILL), 1958.
Cabral de Moncada, Luís, Prefácio, in Gustav Radbruch, Filosofia do Direito,
Portuguese translation by Luís Cabral de Moncada, Arménio Amado,
Coimbra, 1934, pp. VII-XXX.
Conte, Amedeo G., Codici deontici, in Intorno al “codice.” Atti del terzo
convegno della Associazione italiana di studi semiotici (AISS). Pavia,
1975, La Nuova Italia, Florence, 1976, pp. 13–25.
— Némesis. Filosofia della vendetta, in Giuseppe Lorini and Michelina
Masia (eds.), Antropologia della vendetta, Edizioni Scientifiche Italiane,
Naples, 2015, pp. 135–141.
Di Lucia, Paolo, Il linguaggio dell’atto muto, in Raffaele Caterina (ed.), La
dimensione tacita del diritto, Edizioni Scientifiche Italiane, Naples,
2009, pp. 119–128.
Dundes Renteln, Alison and Alan Dundes (eds.), Folk Law. Essays in the
Theory and Practice of Lex Non Scripta, University of Wisconsin Press,
Madison (Wisconsin), 1995.
Ehrlich, Eugen, (Nathan Isaacs (tr.)), Sociology of Law, in ‘Harvard Law
Review,’ 36 (1922), pp. 130–145.
Goldschmidt, Verner, The Greenland Criminal Code and its Sociological
Background, in ‘Acta Sociologica,’ 1 (1956), pp. 217–255.
Kelsen, Hans, Reine Rechtslehre. Einleitung in die rechtswissenschaftliche
Problematik, Deuticke, Vienna, 1934.
— The Law as Specific Social Technique, in ‘The University of Chicago
Law Review,’ 9 (1941), pp. 75–97.
— Pure Theory of Law, English translation from the second (revised and
enlarged) German edition by Max Knight, University of California Press,
Berkeley, 1967.
Lask, Emil, Rechtsphilosophie, in Wilhelm Windelband (ed.), Die Philosophie
im Beginn des 20. Jahrhunderts. Festschrift für Kuno Fischer, C. Winter,
Heidelberg, Vol. II, 1905, pp. 269–320.
Lombardi Satriani, Luigi M., Introduzione, in Antonio Pigliaru, Il banditismo
in Sardegna. La vendetta barbaricina come ordinameno giuridico, Il
Maestrale, Nuoro, 2000, pp. 17–47.
Lombardi Satriani, Luigi M. and Mariano Meligrana, Diritto egemone e diritto
popolare. La Calabria negli studi di demologia giuridica, Qualecultura/
Jaka Book, Vibo Valentia/ Milano, 1975, 1995.
Lorini, Giuseppe, Semiotica dell’atto muto, in Raffaele Caterina (ed.), La
dimensione tacita del diritto, Edizioni Scientifiche Italiane, Naples, 2009,
pp. 129–138.
— Il linguaggio muto della vendetta, in Giuseppe Lorini and Michelina
Masia (eds.), Antropologia della vendetta, Edizioni Scientifiche Italiane,
Naples, 2015, pp. 155–167.
Giuseppe Lorini 71
Lorini, Giuseppe and Michelina Masia (eds.), Antropologia della vendetta,

Edizioni Scientifiche Italiane, Naples, 2015.
Pigliaru, Antonio, La vendetta barbaricina come ordinamento giuridico,
Giuffrè, Milan, 1959.
Pinna, Gonario, Il pastore sardo e la giustizia, Fossataro, Cagliari, 1967.
Rickert, Heinrich, Kulturwissenschaft und Naturwissenschaft, J. C. B. Mohr,
Tübingen, 1899.
Sacco, Rodolfo, Mute Law, in ‘The American Journal of Comparative Law,’
43 (1995), pp. 455–467.
Terradas Saborit, Ignasi, Justicia vindicatoria. De la ofensa e indefensión a
la imprecación y el oráculo, la vindicta y el talión, la ordalía y el
juramento, la composición y la reconciliación, Consejo Superior de
Investigaciones Científicas, Madrid, 2008.
Znamierowski, Czesław, Podstawowe pojęcia teorji prawa. Część I. Układ
prawny i norma prawna, Fiszer i Majewski, Poznań, 1924.
Marek Piechowiak 73
Marek Piechowiak
Plato’s Conception of Punitive Justice*
1. Preliminary remarks
Plato’s conception of punishment will be analyzed here

primarily from the perspective of the aims of punishment. On
the one hand, this perspective will make it possible to situate
Plato’s concept within the context of the main rationales
articulated today for punishment – the concepts of retribution and
prevention; on the other, it will allow us to raise one of the
fundamental questions tied to Plato’s concepts of law and the
state – the question of totalitarianism: does punishment, as
decreed by law and executed by the state, have as its foremost
aim the good of the state, or that of the individual?
Two principle aims of punishment are traditionally distinguished
– that of retribution, the price paid for committing evil – and
prevention of crimes from being committed, and, thus, protection
of values acknowledged by the legal system.
Just retribution exists when the punishment suits the crime,
that is, when it is proportionate to the crime committed – in
accordance with the rule: the more serious the offence, the more
serious the punishment. The rational acceptance of retribution as
the aim of punishment requires an answer to the question of
retribution’s aim. One might consider the primary aim to be the
restoration of a certain order – that of morality or justice –
which was violated by the perpetrator. Such an argument is
independent of all considerations of a utilitarian nature – Fiat
iustitia, pereat mundus et ruat caelum [Let justice be done
though the world perish and though the heavens fall].
*
This contribution was financed with funds from the National Science Centre
(Poland) allocated on the basis of the decision number DEC-2013/09/B/HS5/04232.
Two main types of prevention can be distinguished – general

or indirect prevention and specific prevention. General prevention
influences potential perpetrators (the whole of society). It may
take on a negative form – deterrence, wherein discouraging
potential criminals takes precedence; as well as a positive form
– the formation of legal consciousness within society. Specific
prevention has as its aim to averting the repeated commission of
a crime by a given criminal. This type of prevention may have
a negative dimension as well – punishment, a penitentiary
sentence, for example, makes difficult or impossible the committing
of crime by a given perpetrator; as well as a positive dimension
– the punishment is directed at the improvement of the criminal
himself, at his reinsertion into society.
The problem of punitive justice constitutes one of the
principle threads in the dialogue Gorgias, which will provide the
starting point for my analysis. However, in regard to fundamental
questions, it is difficult to notice substantial differences here
in the articulation of the problem of punishment in this
dialogue, especially in terms of its goals, from that in others,
including the late dialogue Laws, so other dialogues will also
be considered in the reconstruction of Plato’s position, which
is treated as fundamentally consistent throughout the whole of
his work.1 In this paper, I will analyse Plato’s doctrine of fair
punishment and of justice from an ontological perspective
(generally underestimated in monographic studies), particularly in
terms of the “unwritten doctrines” concerning the good and its
relationship to unity as the basis for existence. 2 The primary
1
See Mary Margaret MacKenzie, Plato on Punishment, 1981, pp. 204–
205; and, in more general terms, pp. 179–206.
2
The metaphysical context of Plato’s doctrines on justice, according to
which punishment returns the soul to health, is not considered by Mary Margaret
MacKenzie in her book Plato on Punishment. She regards the essential
explanatory context to be his teaching on morality (in particular, ethical
intellectualism) and the soul; she does not consider the fact that Plato reduces
the metaphor of injustice as a sickness of the soul, above all, to a problem of
existence based on unity and the related problem of the good. Nor is a
metaphysical perspective taken into account by Trevor J. Saunders in his Plato’s
Penal Code: Tradition, Controversy, and Reform in Greek Penology, 1991.
Marek Piechowiak 75
concern of punishment is shown to be the good of the offender –

his own justice understood as internal unity, which is the basis
of existence and, as such, is fundamental to the perfection of a
human being as a whole.
2. Rhetoric as the counterfeit of punitive justice
In Gorgias, the problem of punishment appears in the

context of the question: is it worth using rhetoric to avoid
punishment, and – more broadly – is punishment something
useful or not, does it contribute to happiness or does it limit it?3
Plato is interested in just punishment, and in this dialogue he
speaks of such punishment simply as justice.
Punitive justice is, along with legislation (νομοθετική), an
element of politics, characterized by Plato as an art, “which
concerns the soul.” 4 Both of these elements “always bestow
their care for the best advantage […] of […] the soul.”5 It should
3
A similar problem is introduced directly by Plato in the Republic,
towards the end of Book Four, after having given basic answers to the
question, what is individual justice: “And now at last, it seems, it remains for
us to consider whether it is profitable to do justice and practice honorable
pursuits and be just, whether one is known to be such or not, or whether
injustice profits, and to be unjust, if only a man escape punishment and is not
bettered by chastisement,” Plato, (Paul Shorey (tr.)), Republic, 444e–445a;
Plato’s Glaucon answering Socrates’ proposal, considers that it is principally
useless, when one knows what the justice of the soul is – “from this point on
our inquiry becomes an absurdity – if […] we are yet to be asked to suppose
that, when the very nature and constitution of that whereby we live is
disordered and corrupted, life is going to be worth living, if a man can only
do as he pleases, and pleases to do anything save that which will rid him of
evil and injustice and make him possessed of justice and virtue – now that the
two have been shown to be as we have described them,” Plato, (Paul Shorey
(tr.)), Republic, 445a–b. Nonetheless Plato’s Socrates stands by his proposition -
“but nevertheless, now that we have won to this height, we must not grow
weary in endeavoring to discover with the utmost possible clearness that
these things are so,” ibid., 445b. In fact, however, in the Republic this
question is not widely considered in a way comparable to Gorgias.
4
Plato, (W.R.M. Lamb (tr.)), Gorgias, 464b.
5
Ibid., 464c.
be noted that this concept of politics is primarily concerned with

the good of the individual, rather than that of the state. Punitive
justice serves the souls of the sick, and is aimed at returning lost
health; legislation serves healthy souls, sustaining and strengthening
their health. These distinctions are based on differentiating the
creation of laws from their implementation by judicature.
Plato points to an analogy between politics comprised of
two parts, as an art “which concerns the soul,” and an art,
likewise comprised of two parts, that concerns the body. He
mentions that the latter does not have one name, though its parts
are termed ‘medicine’ (the art of medicine) and ‘gymnastic.’
Medicine returns health to the sick body; gymnastic is concerned
with healthy bodies.
Plato characterizes punitive justice through something that
is, in a certain sense, its opposite, and which merely imitates it –
the rhetoric practiced by the sophists. The four arts correspond
to four flatteries, which only pretend to be arts. Flattery “is a
disgrace [αἰσχρόν] […] because it aims at the pleasant and
ignores the best;” 6 “cares nothing for what is the best, but
dangles what is most pleasant for the moment as a bait for folly,
and deceives it into thinking that she is of the highest value.”7
Flattery is only “a habitude or knack,”8 for “it has no account to
give of the real nature of the things it applies, and so cannot tell
the cause of any of them.”9 Flattery is something irrational – an
irrational, ill-considered work [ἄλογον πρᾶγμα] 10 and as such
cannot be called an art.11 A true art, through learning the nature
of things and causes, searches for that which is best. 12 The
rhetoric practiced by the sophists imitates punitive justice, which
seeks to return health to the sick soul. It is called εἴδωλον – as
Benjamin Jowett aptly translates – “the ghost or counterfeit”
6
Ibid., 465a.
7
Ibid., 464d.
8
Ibid., 463b.
9
Ibid., 465a.
10
Ibid.
11
Ibid.
12
Ibid.
Marek Piechowiak 77
element of politics. 13 Similarly, flattery is sophistry, which

imitates legislation that sustains and strengthens the health of the
soul. Gymnastic, which sustains and strengthens the health and
beauty of the body, is imitated by self-adornment (the “art” of
dressing up); medicine, which returns health to the sick body, is
imitated by cookery.14
Making use of the language of mathematics and the study of
proportions, Plato notes that “as self-adornment is to gymnastic,
so is cookery to medicine:”15
self-adornment cookery
--------------- --- = ------------
gymnastic medicine
and further: “as self-adornment is to gymnastic, so is sophistry

to legislation:”16
self-adornment sophistry
------------------- = -----------
gymnastic legislation
and: “as cookery is to medicine, so is rhetoric to justice:”17

cookery rhetoric
----------- = ---------
medicine justice
13
Plato, (Benjamin Jowett (tr.)), Gorgias, 463d; W.R.M. Lamb translates
εἴδωλόν as “a semblance.”
14
Ibid., 465b–c.
15
Ibid., 465b, my own translation. In editions following those of
Stallbaum or Deutschle-Cron: Plato, (Gonzalez Lodge (ed.)), Gorgias; Plato,
(Theodore D. Woolsey (ed.)), Gorgias (see also Benjamin Jowett’s
translation): “ὅτι ὃ κομμωτικὴ πρὸς γυμναστικήν, τοῦτο ὀψοποιικὴ πρὸς
ἰατρικήν· μᾶλλον δέ ὧδε, ὅτι ὃ κομμωτικὴ πρὸς γυμναστικήν, τοῦτο
σοφιστικὴ πρὸς νομοθετικήν, καὶ ὅτι ὃ ὀψοποιικὴ πρὸς ἰατρικήν, τοῦτο
ῥητορικὴ πρὸς δικαιοσύνην” (465b–c). In John Burnet’s edition the first part
of the quoted phrase “ὅτι ὃ κομμωτικὴ πρὸς γυμναστικήν, τοῦτο ὀψοποιικὴ
πρὸς ἰατρικήν· μᾶλλον δέ ὧδε is missing; this part is also missing in W.R.M.
Lamb’s translation.
16
Plato, (W.R.M. Lamb (tr.)), Gorgias, 465c.
17
Ibid.
Cookery, as the counterfeit of medicine, “pretends to know

what foods are best for the body; so that if a cook and a doctor
had to contend before boys, or before men as foolish as boys,
[…] the doctor would starve to death.”18
In terms of self-adornment as the counterfeit of gymnastic,
he writes that it is “rascally, deceitful, ignoble, and illiberal,”19
and that “it deceives men by forms and colors, polish and dress
so as to make them, in the effort of assuming an extraneous
beauty, neglect the native sort that comes through gymnastic.”20
Rhetoric is to the soul what cookery is to the body;21 one
can therefore characterize rhetoric as analogous to cookery, and
punitive justice as the opposite of rhetoric. There is also an
analogy between the properties of punitive justice and medicine.
It follows that rhetoric as flattery – in line with the above –
“cares nothing for what is the best, but dangles what is most
pleasant for the moment as a bait for folly;”22 punitive justice, on
the other hand, searches for what is best, without regard to whether
it is pleasant or not. Rhetoric pretends to know what is best for the
soul – those who lack reason, consider it to be that which is the best,
the most precious; in this way, the rhetorician in front of the court
of “boys, or before men as foolish as boys” will always win against
those whose occupation is punitive justice. Rhetoric is experience
and routine – it does not comprehend the nature of what it entails
and with what it is occupied, nor does it know its causes;
punitive justice is, on the other hand, a true art – in contrast to
flattery, which is something irrational [ἄλογον πρᾶγμα],23 it is
well-considered work, it understands the nature of what it entails,
and can provide its causes. Whereas medicine entails the health
of body, punitive justice entails the health of the soul; it is
knowledgeable of it, and knows its causes.
18
Ibid., 464d–e.
19
Ibid., 465b; illiberal (ἀνελεύθερος) – mean, rude.
20
Ibid.
21
Ibid., 465d.
22
Ibid., 464d; see: ibid., 465a: “aims at the pleasant and ignores the
best.”
23
Ibid., 465a.
Marek Piechowiak 79
3. Principal aims of punishment
The health of the soul turns out to be its justice, and the
causes of justice are – like causes of the health of the body –
internal regularity [τάξις] and order [κόσμος], 24 harmony, 25 as
well as the inner unity founded upon them. The justice of the
soul turns out to be closely connected to just action “which
preserves and helps to produce” 26 the inner harmony of the soul.
Punitive justice has as its aim the restoration of lost justice to the
soul, and knowing its causes also comprises knowledge of how
to achieve this aim. Rhetoric in the service of avoiding a penalty
in court is only a semblance of care for “afflicted souls” – for
those who have committed wrongdoing.
The aim of punishment is not foremost the restoration of
some abstract axiological order, or the, law and order in the state,
the aim is rather the good of the punished, for whose soul the
punishment is a kind of medicine.27 Clearly visible is the ancillary
role of the law and the state towards individuals.
Punishment, though unpleasant, is nonetheless the best thing
that can happen to those who have committed wrongdoing:
“paying the penalty is a relief from the greatest evil, wickedness”
and “the justice of the court reforms us [σωφρονίζει] 28 and
makes us juster, and acts as a medicine for wickedness.”29
He who commits a wrongdoing should in his own self-
interest bring himself before a judge, so that the latter may mete
out punishment. A just punishment, though painful, constitutes
medicine for the soul, is useful, beautiful and good, as much for
he who mete it out as for he who receives it;30 it frees the soul
24
Ibid., 504a–d.
25
Plato, Republic, 443d–444a.
26
Plato, (Paul Shorey (tr.)), Republic, 443e.
27
Plato, Gorgias, 478d–e, 480a.
28
“Σωφρονίζειν” means to call to order, to discipline; the accent falls on
the return to order, which in the Greek world is always based on that which is
rational.
29
Plato, (W.R.M. Lamb (tr.)), Gorgias, 478d.
30
Ibid., 476e–477a.
from the greatest evil on the earth, from that which is ugliest and
brings the greatest harm – it liberates from injustice and the
baseness of the soul.31
At the end of Gorgias, punishment is indicated as the
second, following being just, greatest good of man: “when any
one has been wrong in anything, he is to be chastised, and that
the next best thing to a man being just is that he should become
just, and be chastised and punished.”32
Thus punishment is directly connected with happiness:
Socrates: Happiest therefore is he who has no vice in his soul,
since we found this to be the greatest of evils.
Polus: Clearly so.
Socrates: Next after him, I take it, is he who is relieved of it.
Polus: So it seems.
Socrates: And that was the man who is reproved, reprimanded,
and made to pay the penalty.33
Happiness is thereby an unquestioned good, and the

possession of knowledge about happiness is “most honourable
[κάλλιστον]:” “the points which we have at issue are by no
means of slight importance: rather, one might say, they are
matters on which it is most honorable to have knowledge, and
most disgraceful to lack it; for in sum they involve our knowing
or not knowing who is happy and who is not.”34
At the fore here is the good of the punished, his improvement. It
makes the punished avoid unjust actions in the future. In
Gorgias, this question clearly dominates, and one of the reasons
for this is the problem posed in it of whether punishment is
worth avoiding.
31
Ibid., 477a–477e; although the first place as the greatest evil is given
to injustice, Plato’s Socrates also speaks in this dialogue of other moral faults
and generally about the baseness (πονηρία) of the soul.
32
Plato, (Benjamin Jowett (tr.)), Gorgias, 527b–c; see: ibid., 472e.
33
Plato, (W.R.M. Lamb (tr.)), Gorgias, 478e.
34
Ibid., 472c.
Marek Piechowiak 81
Nonetheless, in Plato’s reflection one can also find thinking

based on the negative form of specific prevention. For example,
in accordance with the indications of Plato’s Athenian in Laws,
the guardian of law, who has harmed an orphan with his
dishonesty “in addition to the fine he shall be removed from his
office of Law-warden, and the public authority of the State shall
appoint another in his place to act as Law-warden for the
country and the State.”35
4. The foundations of justice as the health of the soul
Justice, being the health of the soul, is based on an internal

regularity, order and harmony,36 and therefore on that which is
the basis of beauty. In a normal situation, where an individual
does not commit an injustice, the soul becomes just through just
actions.37 The lack of justice, evil, is based on the lack of inner
order, asymmetry and the ugliness of the soul.38 Such a state is
caused by unjust actions. Plato emphasizes the importance of the
truth; in the unjust soul “all is awry through falsehood and
imposture, and nothing straight because of a nurture that knew
not Truth.”39 A just punishment returns inner simplicity, restores
order, symmetry, and harmony, which are the foundations of
justice of the soul.
This concerns, above all, the proper relation between three
principal elements of the soul – the rational, the spirited and the
appetitive. In the Republic, Plato also writes about the consequences
of punishment: “in what way is it profitable to get away with
35
Plato, (R.G. Bury (tr.)), Laws, 928d.
36
“ταῖς δέ γε τῆς ψυχῆς τάξεσι καὶ κοσμήσεσιν νόμιμόν τε καὶ νόμος,
ὅθεν καὶ νόμιμοι γίγνονται καὶ κόσμιοι: ταῦτα δ᾽ἔστιν δικαιοσύνη τε καὶ
σωφροσύνη;” “And the regular and orderly states of the soul are called
lawfulness and law, whereby men are similarly made law-abiding and orderly;
and these states are justice and temperance. Do you agree or not?” Plato,
(W.R.M. Lamb (tr.)), Gorgias, 504d; see Plato, Republic, 443c–e.
37
Plato, Republic, 443e.
38
“ἀσυμμετρίας τε καὶ αἰσχρότητος,” Plato, Gorgias, 525a.
39
Ibid.
doing injustice and not pay the penalty? Or doesn't the man who
gets away with it become still worse; while, as for the man who
doesn't get away with it and is punished, isn't the bestial part of
him put to sleep and tamed, and the tame part freed, and doesn't
his whole soul ‒ brought to its best nature acquiring moderation
and justice accompanied by prudence ‒ gain a habit more
worthy of honor than the one a body gains with strength and
beauty accompanied by health, in proportion as soul is more
honorable than body?”40
Plato’s teaching about punishment and justice in general
must be seen in the perspective of his ontology, especially the
so-called unwritten doctrines, concerning the good and its
connection with unity as the basis of existence. The most
important idea – the idea of the good, qualitatively differs from
all the others; being the source of all existence, it is the idea of
unity.41 To give existence means to give unity, in accordance
with the simple intuition, that that which is not a unity, simply
disintegrates and ceases to exist.42 Unity is gradated. The more
something is a unity, the more it is, the more it exists. At the
same time, the more something is a unity, the more it is good,
the more it is similar to the idea of the good, and likening itself
to it, works toward unity, thereby for the existence of others.
The basis of unity is inner regularity and order, inner harmony,
and thereby also beauty. In the case of a human being, these
properties are directly tied to the justice of the soul. The more
just a human being is, the more he is a unity and the more he
40
Plato, (Allan Bloom (tr.)), Republic, 591a–b.
41
See Marek Piechowiak, Sokrates sam ze sobą rozmawia o sprawiedliwości,
in Artur Pacewicz (ed.), Kolokwia Platońskie - Gorgias, 2009, pp. 71–92, esp.
87–88; see Artur Pacewicz, Między Dobrem a Jednością. Związek Dobra i
Jedna w filozofii Platona, Starej Akademii i Arystotelesa, 2004, pp. 82–92,
145–147; see Giovanni Reale, (John R. Catan (tr.)), History of Ancient
Philosophy, 1990, pp. 77–83, esp. 82; on the Platonic conception of the good
and unity (also in the unwritten doctrines) in the context of the problem of the
foundations of law and justice, see Antonio Incampo, Sul fondamento della
validità deontica. Identità non-contraddizione, 1996, pp. 91–139.
42
See Antonio Incampo, Sul fondamento della validità deontica. Identità
non-contraddizione, 1996, pp. 91–139, esp. 93, 110.
Marek Piechowiak 83
exists. He thus makes himself similar to the good.43 Justice as

the perfection of existence is a virtue – a thoroughly “internal”
value which is an autonomous, rather than an instrumental good,
involving the whole person; it is the most fundamental because it is
the basis for the existence of both the whole and its individual
elements. A just punishment, by returning order, renders a
human being more just and contributes to him “being more,”
although he loses something of what he possesses and “has less.”
A human being who possesses the virtue of justice will act
justly – his just actions are originated from the justice of the
subject (justice of the soul).44 The return of the health of the soul,
then the return of the justice of the subject, prevents his unjust
action. Linking justice of the subject to the justice of his actions
finds fundamental justification in Plato’s metaphysics – in his
teachings on the good. 45 A man who becomes more just, and
thus more unified, increasingly conforms to the idea of the good,
not merely becoming more so, but also – if he is indeed good –
conducting himself in the manner in which good operates –
diffusivum sui bonum est (goodness tends to spread), out of the
need to work for the existence of others. On one side – speaking
in negative terms – “in no case is it just to harm anyone,”46 and
on the other – speaking positively – acting justly means doing
“what is fitting” [τὰ προσήκοντα πράττων] 47 – doing what “is
suitable,” appropriate from the point of view of the addressee –
justice for him, and thus, for his existence. Just actions are
beneficial for their adressee in the sense that they contribute to the
inner unity and the “strength” of the existence of the soul.
43
See Marek Piechowiak, Do Platona po naukę o prawach człowieka, in
Jan Białocerkiewicz, Michał Balcerzak, and Anna Czeczko-Durlak (eds.),
Księga jubileuszowa profesora Tadeusza Jasudowicza, 2004, pp. 333–352.
44
Plato, Republic, 443e.
45
Underestimating the metaphysical foundations of Plato’s teaching on
penalty, M. MacKenzie has some problems in explanation of links between,
on one hand, justice as the wellbeing of soul and, on the other hand, justice of
actions, see Mary Margaret MacKenzie, Plato on Punishment, 1981, pp. 152,
46
“οὐδαμοῦ γὰρ δίκαιον οὐδένα ἡμῖν ἐφάνη ὂν βλάπτειν,” Plato, (Paiul
Shorey (tr.)), Republic, 335e; bearing in mind the meaning of the verb “βλάπτω,”
this can be translated as: “justice never corrupts a person, it does not cause any
harm.”
47
Plato (W.R.M. Lamb (tr.)), Gorgias, 507a.
5. Equality of proportions as the basis of the determination

of punishment
Determination of a just punishment is itself a type of just

action. Such an action is not based on equality of an arithmetical
type, but on proportional equality – geometrical equality.
Arithmetical equality is easy to define and to implement: “any
State or lawgiver is competent to apply [it] in the assignment of
honors, — namely, the equality determined by measure, weight
and number, — by simply employing the lot to give even results
in the distributions.”48
However, the most real and best equality is proportional,
and Plato describes it as an equality based on the judgment of
Zeus. 49 A true justice of action takes account of this second
equality and it “consists in [...] the natural equality given on
each occasion to things unequal.”50 When one speaks of justice
or aspires to it, one must always keep an eye to this equality.51
This equality: “dispenses more to the greater and less to the
smaller, giving due measure to each according to nature; and
with regard to honors also, by granting the greater to those that
are greater in goodness, and the less to those of the opposite
character in respect of goodness and education, it assigns in
proportion what is fitting to each.”52
This equality and the justice based on it “produces all things
good” 53 for man and the state. 54 The essence of just action is
doing that which is beneficial for the others,55 and the measure
of being beneficial is whether the actions “build” justice of the
48
Plato, (R.G. Bury (tr.)), Laws, 757b.
49
Ibid.
50
Ibid., 757d.
51
Ibid., 757c.
52
Ibid.
53
Ibid.
54
Ibid., 757b–c.
55
Fundamental in this respect is also the dialogue Gorgias, see Marek
Piechowiak, Sokrates sam ze sobą rozmawia o sprawiedliwości, in Artur
Pacewicz (ed.), Kolokwia Platońskie - Gorgias, 2009, passim.
Marek Piechowiak 85
soul consisting of inner regularity and order, inner harmony, and

– as a consequence – inner unity.56 Wisdom is a knowledge that
presides over such conduct, which preserves such inner harmony
and contributes to it.57
Taking into account the differences between subjects leads
to a taking into account of the changes brought about by bad
actions – the worse the action, the worse the damage to the soul,
a damage that should be repaired by punishment; so – the worse
the action, the harsher the penalty. This leads to proportions
typical for Aristotle’s concept of distributive justice based on the
proportion of four elements – at least two people and at least
two assigned things,58 for example penalties, and, thus, at least
two crimes and two corresponding penalties. Symbolically:59
action A (e.g., murder) punishment A (e.g., life in prison)
--------------------------- = ----------------------------------------------
action B (e.g., theft) punishment B (e.g., one year in prison)
One should stress however, that this type of proportion is

secondary with regard to the equality “based on the judgment of
Zeus,” to the primary suitability of the nature of a given
individual, a nature, which must be repaired, to a punishment
that should lead to such a repair. Punishment must be fitted to
such a nature. In Gorgias, just action is described by Plato as
the execution of that which is worthy, what is suitable, what
is fitting [τὰ προσήκοντα πράττων]. 60 The basis of proportional
equality is equality conceived as a mean between excess and
scarcity, between a too severe punishment and a too light one.
And so at stake is the equality descibed by Aristotle as the
56
Plato, Republic, 443d–e.
57
Ibid., 443e.
58
See Aristotle, Nicomachean Ethics, 1131a.
59
See Arthur Kaufmann, Problemgeschichte der Rechtsphilosophie, in
Arthur Kaufmann and Winfried Hassemer (eds.), Einführung in Rechtsphilosophie
und Rechtstheorie der Gegenwart, 1989, pp. 36.
60
Plato, Gorgias, 507a; see Marek Piechowiak, Sokrates sam ze sobą
rozmawia o sprawiedliwości, in Artur Pacewicz (ed.), Kolokwia Platońskie -
Gorgias, 2009, pp. 71–92.
golden mean.61 In the case of punishment, what is suitable is

that which will return inner unity based on inner regularity,
order and harmony, that will “straighten out” that which was
“twisted.”
In Plato’s opinion, punishment is always a kind of affliction,
something unpleasant. Plato’s Socrates claims that the acquired
injustice of the soul cannot be discarded otherwise, than through
pain and suffering: “Those who are benefited by the punishment
they get from gods and men are they who have committed
remediable offences; but still it is through bitter throes of pain
that they receive their benefit both here and in the nether world;
for in no other way can there be riddance of iniquity.”62
Determination of an adequate punishment requires, above
all, a proper determination of the affliction. Although the basic
measure is the state of the soul of the one punished, at times,
Plato indicates actions themselves and their external effects as
the measure for determining a punishment. In the myth of Er
that closes the Republic, a posthumous punishment is bestowed
for every unjust action, and aims at suffering tenfold greater
than that caused by this action. According to the tale of Er,
people after death: “For all the wrongs they had ever done to
anyone and all whom they had severally wronged they had paid
the penalty in turn tenfold for each […]; as for example that if
anyone had been the cause of many deaths or had betrayed cities
and armies and reduced them to slavery, or had been participant
61
Aristotle, Nicomachean Ethics, 1106a. See Plato, Republic, 619a–b.
62
Plato, (W.R.M. Lamb (tr.)), Gorgias, 525b. T. J. Saunders notes that
pain and suffering are inherent to the healing of the soul in the early stages of
restoring health, when it is necessary to stop behaviours consistent with the
broken nature of the soul (see Plato, Timaeus, 81e, Donald J. Zeyl (tr.)): “All
that is unnatural, we recall, is painful while all that occurs naturally is
pleasant”). Punishment is accompanied by pain and suffering, which as such
are not a source of improvement; the soul can return to health by means of
appropriate exercise, the acquisition of knowledge, and just actions, which,
together with the recovery of health, becomes pleasant. See Trevor J. Saunders,
Plato’s Penal Code, 1991, pp. 174–178. See also: Plato, The Republic, 443b–
e, which refers to the deeds of the righteous as contributing to the justice of
the soul.
Marek Piechowiak 87
in any other iniquity, they might receive in requital pains tenfold

for each of these wrongs.”63
The main measure of the gravity of punishment remains the
nature of the culprit, his interior state, and not the act itself,
although – of course – it is the weight of the unjust act that
causes lesser or greater harm in the subject. Plato likewise
mentions circumstances, because these are what determine the
level of harm caused to a subject through his behaviour, and
whether the culprit’s improvement requires a greater or lesser
punishment; in Laws, Plato writes: “The penalty shall be lighter
in the case of one who has done wrong owing to another's folly
‒ the wrong-doer being over-persuaded because of his youth or
for some such reason; and it shall be heavier when man has done
wrong owing to his own folly, because of his incontinence in
respect of pleasures and pains and the overpowering influence of
craven fears or of incurable desires, envies and rages.”64
There are also circumstances which make the punishment
harsher due to qualities in those who were harmed. This is the
case, for example, when those harmed are socially vulnerable,
such as orphans: “he that wrongs any who has lost father or
mother shall in every case pay a penalty double of that due from
the man who offends against a child with both parents living.”65
6. Injustice which punishment cannot repair
In Gorgias, Plato’s Socrates also speaks of those who are so

evil that no punishment can reform them. Making use of the
ontological interpretation of justice sketched out earlier, it is a
question of those, who are internally so “twisted” and have such
internal disorder, that no return to order is possible. In this case,
the punishment inflicted does not serve the improvement of the
criminal, but the improvement of others. In Socrates’ narration,
63
Plato, (Paul Shorey (tr.)), Republic, 615a–b.
64
Plato, (R.G. Bury (tr.)), Laws, 934a.
65
Ibid., 927d.
the most serious criminals, who can no longer be cured, receive

eternal punishment – “undergoing for their transgressions the
greatest, sharpest, and most fearful sufferings evermore.”66
The principle is that the punishment be beneficial for the
punished, that it serves him, and cures him from injustice. In the
above scenario concerning the most hardened criminals, there is
an exception to this rule. The punishment serves others, rather
than the punished. The aim of punishment is – to put it in
contemporary terms – general prevention based on the deterrence
of potential culprits, and thus prevention of a negative type. Is not
the punished treated here in a purely instrumental way – his
suffering serves only others? It is interesting that although we
are discussing the fact that just punishment is what is suitable
and tailored to the soul – that soul “is to endure the sufferings
that are fitting [τὰ προσήκοντα πάθη],”67 Plato in this case also
does not say that punishment returns some cosmic order, or is
imposed with regard to the law itself. No – just punishment is
imposed with regard to the good of the soul – either directly that
of the punished, which can be ameliorated, or for the good of
other souls. The punishment is proportional to the crime – to the
damage to the soul. The more damaged the soul is, the heavier
the punishment required so that it may be cured. As was
demonstrated concerning equality as the foundation of justice –
the criterion of punitive justice is not simply proportion: a
lighter sentence for a lesser fault, a harsher sentence for a more
serious one. The fundamental criterion, the reason for the
suitable measure of punishment, is its suitability to a given soul;
the proportions between souls and their deserved punishments
are secondary. However, in the case of incurable injustice, one
cannot say that punishment carries a certain weight for the
reason that it is indispensible to the amelioration of the soul.
While posing the question of the purely instrumental
treatment of the punished, it is necessary to pose yet another –
why in the narration is there no reference to the possibility of a
66
Plato, (W.R.M. Lamb (tr.)), Gorgias, 525c.
67
Ibid., 525a.
Marek Piechowiak 89
punishment that could annihilate the soul of the most inveterate

criminal? Something on the order of the death of the soul. The
simplest reply would be: the deterrent factor, and thus, the
benefit potential criminals could derive from it, is based on the
severity of the penalty; the punishment would not be eternal, and
thus, would not deter sufficiently and would not bring the
desired benefit to others. One could also add that the soul is
immortal, and thus, its annihilation would simply be impossible.
If such be the case, eternal punishment – having a deterrent
value – would not be an expression of purely instrumental
treatment. The essence of just action and that which is the most
important in life is not bringing harm to others and – to the
extent that it is possible – acting on behalf of their benefit, of
their existence. Being subject to punishment that has a deterrent
value would be the best possible thing an inveterate criminal
could do to liken, in some modest way, his actions to those
embodied in the idea of good. By receiving punishment, he
contributes to the justice of others, and to the extent possible,
comes to resemble the idea of the good, and this contribution
supports his inner unity, his existence and goodness.68
Summing up the analysis concerning the main aims of
punishment, it is necessary to emphasize that Plato does not say
the good of the state is the main aim of punishment, nor does he
speak of the return of some abstract order of justice – whatever
happened is accomplished and unchangeable: “he shall pay the
penalty, not because of the wrongdoing, – for what is done can
never be undone, – but in order that for the future both he himself
and those who behold his punishment may either utterly loathe his
sin or at least renounce to a great extent such lamentable conduct.”69
Similarly in Gorgias: “everyone under punishment rightly
inflicted on him by another should either be made better and profit
68
M. MacKenzie does not take into account the metaphysical context of
Plato’s teaching on punishment, and does not perceive this kind of justification of
punishment for “incurable” injustice. See Mary Margaret MacKenzie, Plato
on Punishment, 1981, pp. 208–214.
69
Plato, (R.G. Bury (tr.)), Laws, 934a–b.
thereby, or serve as an example to the rest, that others seeing the

sufferings he endures may in fear amend themselves.”70
Thus, punishment serves a preventative aim, in particular –
to put it in contemporary terms – within the domain of specific
prevention (with regards to which the positive aspect is primary),
although it is perceived by Plato also as general prevention
based on deterrence. Seneca presents Plato’s position in this
domain with the famous formula: “Nemo prudens punit, […]
quia peccatum est, sed ne peccetur.”71 – “A sensible person does
not punish a man because he has sinned, but in order to keep
him from sin.”72
7. The inevitability of the punishment of the gods and two

aims of the law
Plato acknowledges the value that the inevitability of

punishment has for the realization of its aims. The gods watch
over the inevitability of punishment, and in regard to punishment
cannot be bought off through offerings: “the next contention,
that the gods can be won over by wrongdoers, on the receipt of
bribes, is one that no one should admit, and we must try to refute
it by every means in our power.”73
Plato’s Athenian in Laws speaks of a verdict imposed by the
gods who ruled over Olympus, one that was the first and most
important, superior to all others. This was “the decree that as
thou becomest worse, thou goest to the company of the worse
souls, and as thou becomest better, to the better souls; and that,
alike in life and in every shape of death, thou both doest and
sufferest what it is befitting that like should do towards like.
From this decree of Heaven neither wilt thou nor any other
luckless wight ever boast that he has escaped; for this decree is
70
71
Seneca, De ira, I, 19, 7; a bit further Seneca writes: “Nec umquam ad
praeteritum, sed ad futurum poena refertur,” ibid., II, 31, 8.
72
Seneca, (John W. Basore (tr.)), To Novatus on Anger, I, 19, 7.
73
Plato, (R.G. Bury (tr.)), Laws, 905d.
Marek Piechowiak 91
one which the gods who have enjoined it have enjoined above
all others, and meet it is that it should be most strictly observed.
For by it thou wilt not ever be neglected, neither if thou
shouldest dive, in thy very littleness, into the depths of the earth
below, nor if thou shouldest soar up to the height of Heaven
above; but thou shalt pay to the gods thy due penalty, whether
thou remainest here on earth, or hast passed away to Hades, or
art transported to a region yet more fearsome.”74
The Gods’ view on the impossibility of avoiding punishment
is clearly expressed here; it is nonetheless worth mentioning yet
another thought contained in the quoted fragment. The element
of the Gods’ verdict that Plato’s Athenian says raises it above all
others is not solely – and not especially – the inevitability of
punishment. The verdict concerns both those who become worse
and those who improve. In accordance with this verdict,
everyone experiences from others and does unto others like
oneself – good unto good, evil unto evil. As stated above, the
law, including criminal law, according to Plato, aims at people
becoming more just, and thereby, happier. Bearing in mind the
verdict discussed here, which the gods have raised above all
their other verdicts, the rise of the just leads not only to the
emergence of happy individuals, but to the emergence of
communities of the just – who resemble one another in terms of
their moral excellence, and who experience just actions toward
themselves and themselves act in a just way toward others. A
community thereby arises in which true friendship is realized.
Plato refers to the truths contained in old maxims in Gorgias:
“the closest possible friendship between man and man is that
mentioned by the sages of old time as ‘like to like’ [ὁ ὅμοιος τῷ
ὁμοίῳ];”75 he also does so in Laws: “There is an old and true
saying that ‘equality produces amity’ [ἰσότης φιλότητα ἀπεργάζεται],
which is right well and fitly spoken.”76 Thus, the second of the
principle aims of the law designated by Plato – besides the
74
Ibid., 904e–905b.
75
76
Plato, (R.G. Bury (tr.)), Laws, 757a.
happiness of citizens – is realized; in Laws he writes: “the

fundamental purpose of our laws was this – that the citizens
should be as happy as possible, and in the highest degree united
in mutual friendship.”77 In accordance with this designation, the
aim of law is the emergence of a community of equals, of happy
citizens. The opposite would be the emergence of a community
of the unjust, who will inflict harm on each other, which is
simultaneously a punishment serving improvement.78
8. Civil-legal aspects of punishment
Plato’s main reflection on punishment concerns the question

of whether punishment is something useful for the punished or
not, and – as a consequence – whether punishment should be
avoided. Thus, the perspective of the punished dominates. In
Laws, Plato looks at punishment from the perspective of the
judge and the lawgiver, as well. Here the problem of punishment
comprises the question of affliction tied to the necessity of
repairing inflicted harm, and thus the question is included with
civil rather than criminal law. The compensation of the victim is
placed at the forefront by Plato, who writes: “In all cases where
one man causes damage to another by acts of robbery or violence,
if the damage be great, he shall pay a large sum as compensation to
the damaged party, and a small sum if the damage be small; and
as a general rule, every man shall in every case pay a sum equal
77
Ibid., 743c.
78
Punishment consisting in the habitation in a society of the unjust must
be read in the perspective of the myth of Er, which closes the Republic
and the description found there of the choice of future fates; one must
acknowledge that one destined to live in a society of the unjust may choose a
life in which he himself avoids acting unjustly and opens for himself the road
to a better life. See Plato, (Paul Shorey (tr.)), Republic, 617e: “virtue has no
master over her, and each shall have more or less of her as he honors her or
does her despite;” directing the choice of life by the soul, he says to them:
“Even for him who comes forward last, if he make his choice wisely and live
strenuously, there is reserved an acceptable life, no evil one. Let not the
foremost in the choice be heedless nor the last be discouraged,” ibid., 619b;
see Plato, Phaedrus, 249b.
Marek Piechowiak 93
to the damage done, until the loss is made good; and, in addition
to this, every man shall pay the penalty which is attached to his
crime by way of corrective.”79 When the problem of punishment
is expanded to include the dimension of compensating the victim,
Plato does not discard the perspective of the individual, whose
good constitutes the reason for punishment.
Sometimes compensation can surpass the inflicted damages.
This is so, for example, in the case of harm inflicted on orphans,
who – finding themselves in an inferior situation to others in
society – deserve exceptional care.80 An orphan’s caretaker who
is accused of not caring for or harming the child, if found guilty,
“shall pay four times the damages assessed, and of this amount
one half shall go to the child, the other half to the successful
prosecutor.”81
The measure of compensation is determined, in part, by the
particular situation of the victim and the resulting additional
difficulties in his or her development, in the surmounting of
which, compensation may be of help; nonetheless the element of
specific and general prevention is also present – higher
compensation is an additional burden for the culprit, which may
aid in his improvement, and also serves as a warning to others.
9. Concluding remarks
In Plato’s conception of punishment one can discern the

elements of specific as well as general prevention. In the case of
specific prevention, foremost is the positive element – punishment
is a form of medicine which returns justice to the soul. The
justice of actions is secondary to the state of the soul: a just
individual will act justly. General prevention is also taken into
consideration by Plato, especially in regard to the heaviest
79
Plato, (R. G. Bury (tr.)), Laws, 933e–934a; see also 934b and E.B.
England’s notes related to “παντελῶς τῆς ἀξίας” (934b 6), Plato, (E.B.
England (ed.)), The Laws of Plato, 1921, p. 558.
80
Plato, Laws, 927e–928a.
81
Ibid., 928b–c.
offenses, and is based on the deterrent function of punishment,

especially eternal, everlasting punishment; the negative aspect
of general prevention is thus the primary focus.
Nonetheless, the analysis here demonstrates that for Plato
the principal aim of punishment is not the defence of values
acknowledged by the legal system, but the good of the individual –
his personal development, which is, first of all, moral development,
consisting of the attainment of the greatest – situated on the
level of existence – excellence of the subject, which is the virtue
of justice, an inner unity based on inner regularity, order,
harmony and straightness. Attainment of the virtue of justice is
likewise the attainment of happiness. In principle, punishment
ought to be adapted and proportionate not to the act committed,
but to the state of the subject, the state of his soul. It should be
appropriate medicine, returning health to the soul, restoring
inner order, harmony and straightness.
The elements of a retributive concept of punishment become
salient above all in the case of the most hardened criminals, who
are internally so spoiled that no amelioration is possible, no
punishment can be a suitable, sufficient medicine. Yet, the
punishment is deserved, proportional to the degree of depravity
of the offender, and thus possesses a deterrent value. Moreover,
the suffering of the offender; since it is beneficial for others,
contributes to his inner unity and his goodness.
The preceding analysis concerning Plato’s conception of
punishment clearly shows that the aim of punishment is not the
good of the state, nor the abstractly conceived order of justice.
The aims of punishment are not located beyond the individual
(the individual soul). Therefore, in this conception of punishment
there are no elements of thinking typical of that in the spirit of
totalitarianism. The law and the state serve the good of the
individual. This is an important argument on behalf of the
postulate of a non-totalitarian interpretation of the Republic and
the others dialogs of Plato.
Marek Piechowiak 95
Bibliography
Aristotle, (Terence Irwin (tr.)), Nicomachean Ethics, Hackett Publishing

Company, Indianapolis/ Cambridge, 1985.
Incampo, Antonio, Sul fondamento della validità deontica. Identità non-
contraddizione, Edizioni di Giuseppe Laterza, Bari, 1996.
Kaufmann, Arthur, Problemgeschichte der Rechtsphilosophie, in Arthur
Kaufmann and Winfried Hassemer (eds.), Einführung in Rechtsphilosophie
und Rechtstheorie der Gegenwart, C.F. Müller Verlag, Heidelberg, 19895,
pp. 25–142.
MacKenzie, Mary Margaret, Plato on Punishment, University of California
Press, Berkeley/ Los Angeles/ London, 1981.
Pacewicz, Artur, Między Dobrem a Jednością. Związek Dobra i Jedna w
filozofii Platona, Starej Akademii i Arystotelesa, Wydawnictwo Uniwersytetu
Wrocławskiego, Wrocław, 2004.
Piechowiak, Marek, Do Platona po naukę o prawach człowieka, in Jan
Białocerkiewicz, Michał Balcerzak and Anna Czeczko-Durlak (eds.),
Księga jubileuszowa profesora Tadeusza Jasudowicza, Towarzystwo
Naukowe Organizacji i Kierownictwa “Dom Organizatora”, Toruń,
2004, pp. 333–352.
— Sokrates sam ze sobą rozmawia o sprawiedliwości, in Artur Pacewicz
(ed.), Kolokwia Platońskie - Gorgias, Instytut Filozofii Uniwersytetu
Wrocławskiego, Wrocław 2009, pp. 71–92.
Plato, (John Burnet (ed.)), Gorgias, in Platonis Opera, E. Typographeo
Clarendoniano, Oxford, 1903 ff. (The Perseus Project, ed. by G. R.
Crane, http://www.perseus.tufts.edu ‒ last accessed on 8. February 2015).
— (Benjamin Jowett (tr.)), Gorgias, in The Dialogues of Plato, vol. 2,
Oxford UP, New York/ London 1892, pp. 267–431.
— (W. R. M. Lamb (tr.)), Gorgias, in Plato in Twelve Volumes, vol. 3,
Harvard UP, Cambridge (Massachusetts); William Heinemann Ltd., London,
1967 (The Perseus Project, ed. by G.R. Crane, http://www.perseus.tufts.edu ‒
last accessed on 8. February 2015).
— (Gonzalez Lodge (ed.)), Gorgias, edited on the basis of Deutschle-
Cron’s edition, Ginn & Co., Boston/ London, 1896.
— (Theodore D. Woolsey (ed.)), Gorgias, chiefly according to Stallbaum’s
text, with notes by Theodore D. Woolsey, J. Munroe & Company,
Boston/ Cambridge, 1856.
— (E.B. England (ed.)), The Laws of Plato, vol. II: Books VII-XII, The
University Press, Manchester; Longmans, Green & Co., London, 1921.
— (R. G. Bury (tr.)), Laws, Harvard UP, Cambridge (Massachusetts);
William Heinemann Ltd., London, 1967, 1968.
— (Alexander Nehamas and Paul Woodruff (trs.)), Phaedrus, in Plato, John
M. Cooper (ed.), Complete Works, Hackett Publishing Company,
Indianapolis/ Cambridge 1997, pp. 506–556.
— (Allan Bloom (tr.)), The Republic of Plato, Basic Books, New York
1968.
— (Paul Shorey (tr.)), Republic, in Plato in Twelve Volumes, vols. 5–6, Harvard
UP, Cambridge (Massachusetts); William Heinemann Ltd., London, 1969
(The Perseus Project, ed. by G. R. Crane, http://www.perseus.tufts.edu ‒ last
accessed on 8. February 2015).
— (Donald J. Zeyl (tr.)), Timaeus, in Plato, John M. Cooper (ed.), Complete
Works, Hackett Publishing Company, Indianapolis/ Cambridge, 1997, pp.
1224–1291.
Reale, Giovanni, (John R. Catan (tr.)), History of Ancient Philosophy, vol. II:
Plato and Aristotle, State University of New York Press, Albany
(NewYork), 1990.
Saunders, Trevor J., Plato’s Penal Code: Tradition, Controversy, and Reform
in Greek Penology, Clarendon Press, Oxford, 1991.
Seneca, Lucius Annaeus, (John W. Basore (tr.)), On Anger, in Lucius Annaeus
Seneca, Moral Essays, vol. I, Heinemann, London, 1928, pp. 106–355.
Gregorio Robles 97
Gregorio Robles
Communicational Theory of Law and Legal Coercion
The purpose of this short essay is to show how the coerciveness

of law can be conceived from the perspective of the communicational
theory of law. I shall proceed by these steps. First, I shall refer to
the idea of coercion in traditional positivist theories. Second, I
shall make clear that the communicational theory sets into relief
law as a form of mutual understanding of human beings, that is,
as a set of communication processes, with respect to which
various forms of coercion would have to be explained. Following
through on this second point, I shall set forth a heterogeneous
model of legal norms, proposed by the communicational theory,
a model which will, as the fourth step, serve as a demonstration
that not every legal norm is coercive. Fifth, I shall inquire which
type or types of norms provide for institutional exercise of
coercive acts. Finally, the concept of coercion ‒ and its various
types ‒ will be related to that of positive and negative sanctions.
To make things simpler, I shall refer to the communicational
theory of law as to “CTL.”1
1. The Kafkian image of law
The positivist tradition portrays law as a coercive order of

human conduct. Abstraction made from certain marginal shadings,
legal positivism defends the thesis that law is a system of
directives or norms which provide for punishment for the
offenders. According to this view, a legal norm is distinct from a
1
See Gregorio Robles, Teoría del Derecho (Fundamentos de Teoría
Comunicacional del Derecho). Volumen I: Introducción. El Derecho y la
Teoría Comunicacional del Derecho. Primera Parte. Teoría formal del Derecho,
20135.
moral norm precisely in this, that it is coercive, that is, that it

attaches an unpleasant legal consequence to afflict whoever
breaches it. On this view, then, a legal norm would be a complex
consisting of a factual presupposition (an illicit act) and a legal
consequence (or sanction). It would be hypothetical and coercive:
the former, because it would presuppose an act that the norm
defines as illegal; the latter, because it would lay down that, an
act like that committed, a sanction would be mandatorily
imposed. By contrast, a moral norm would not be hypothetical
but categorical: “you ought to do this,” “you ought to refrain
from that;” and it would have no sanction, leaving aside the so-
called social morality, which is no morality in the strict sense
but is in a kind social norms.
This conception of law coincides with its popular image.
There is hardly any doubt that most people at first hunch
spontaneously associate law with the police, the courts, the
evictions, the fines and the prisons. And there is as little doubt
that law does, in large measure, deserve being associated with
all that. Yet still, it would be out of proportion to identify law
with that Kafkian image exclusively, as is so often done.
Franz Kafka paints, in his Der Prozess, a delirious,
nightmarish and absolutely negative image of law. Doubtlessly,
many situations in the real life of the persons who have to show
up at courts or government offices correspond to that image
quite closely. However, it would be an absurd simplification to
conclude that law is nothing but an expression of an irrational
power bent on frightening or even tormenting its subjects.
Moreover, it must not escape notice that apart from those
unpleasant situations there are many motivating ones. Whoever
buys a weekend cottage overseeing the sea and to that purpose
accomplishes the legal act of buying and selling is involving a
notary and a Land Registry office. A couple celebrates, in
exalted euphoria, their matrimony. A judge has just decided in
favour of an individual to whom another one owns a certain
amount of money. A student has just enrolled at a Faculty where
she has the wish of studying a subject. The police extend the
passport of a citizen who would then be able to travel therewith
Gregorio Robles 99
all over the world. All of the above are types of situations
experienced as highly positive, yet for you’d never guess what
reason much less frequently connected with the concept of law
than is the lamentable occasion of having to pay a fine.
2. Law as communication
In order to successfully come to grips with this distorted

image of law, it helps to emphasise law’s communicational
aspect. This is what the CTL does. Its perspective on law is that
of communication. That is to say, for the CTL the domain of law
is a complex of processes of communication, of various powers
among themselves, of the powers and particular persons, as well
as of particular persons among themselves. The drafting of a
constitution, for instance, requires a communicational process
amongst the members of the relevant body. The laws, at least of
a democratic system, are the result of communicational processes
between the diverse political parties and other social actors
(trade unions, civil associations, etc.). A trial before a judge is
nothing but a prolonged conversation ‒ normally, a somewhat
tense one ‒ between two parties trying to convince the judge,
who represents a neutral and decision-making power ‒ with their
evidence and their arguments. The judge himself carries out a
communicational act in issuing his judgement. Two persons are
sitting in a coffee shop and discussing the details of a flat rental
contract and to this end availing themselves of certain words
that bring their respective messages across.
It is not just linguistic acts strictly so called that have
communicative character. Everything that is relevant for law is
communicative. This is so because every action is the sense of a
complex of physical-psychical movements, and this sense is
comprehensible only within a hermeneutical frame of reference,
whose central axis is the duality of legal order/legal system.
Here, I cannot tarry to explain all these concepts. I shall
restrict myself to setting in relief certain basic aspects of the
CTL in order to arrive at the main topic of this essay. What has
already been said is enough, however, to easily understand that

not all elements of law are coercive. This observation links up
with the theory of norms proposed by the CTL. Far from
defending a homogeneous conception of norms, the CTL has
developed a heterogeneous conception of legal norms. To this
purpose, the CTL employs two combined criteria: the functional
one and the linguistic one. The former refers to the function that
every type of norm fulfils. The latter analyses the verb
characteristic for every type of norm. The analysis of the types
of legal norms employing both criteria allows to find adequate
room for coercion and to give it the range that it merits.
3. The heterogeneous model of norms
For the CTL the basic classification of norms is subservient

to their basic function: that of regulating actions. There are
norms that perform that function directly (e.g. the debtor should
pay his debts) and there are some which do it indirectly, by
regulating elements prior to actions (e.g. the age of majority is
18 years). The former ones shall be called direct norms of action.
The latter ones: indirect norms of action. This is the fundamental
classification: legal norms are divided into indirect and direct
norms of action.
The indirect norms of action establish or create elements
that have to be there prior to the action in question. Thus, there
are indirect rules that lay down a) the sources of law (“the
sources of the Spanish legal system are: law, custom and general
principles of law”); b) the localisations of specific types of
action (“the territory of the state is this or that,” “the seat of a
company is at its headquarters”); c) the time of actions (“the
deadline for appeal is one month”); d) the subjects of actions
(“… are nationals,” “… are foreigners”); e) the competences and
capacities of all kinds of actions, whether lawful or illicit (“a
person of major age is in full legal capacity both in civil and in
criminal matters”).
Gregorio Robles 101
The verb that best expresses the deep meaning of indirect

norms is the verb “to be” in its regulative, constitutive and
creative sense (but not in the descriptive or attributive sense).
For this reason, indirect norms of action are sometimes called
ontic norms.
The direct norms of action, by contrast, are such as to, when
expressed properly, envisage a type of action. For this reason,
they employ a modal verb which, in its turn, takes another verb,
the one that expresses the action. Such norms are divided in three
classes: procedural norms, empowering norms and deontic norms.
A procedural norm establishes or creates the necessary
requisites of an action. An action is a procedure. On establishing
the procedure the procedural norm creates the action. Thus for
instance the norm “if you want to enrol at the Faculty of Law,
you must submit such and such documents within a certain
deadline.” The action of enrolment is equivalent to carrying out
the procedure. The procedural norm does not impose an
obligation, but it restricts itself to laying down the steps
necessary for accomplishing a certain action. Its characteristic
verb is thus “must.”
The empowering norm defines the authorisations, that is, the
area of actions that a subject, depending on their competences
and abilities, can legally perform. From the totality of possible
actions, determined by the competence and capacity of the subject,
the empowering norm carves out a set of actions that the subject
may do, their lawful actions. The crucial verb is thus “may.”
The deontic norm, finally, lays down the obligations. Its
characteristic verb is “ought to.” The deontic norms are divided
into three species: norms of conduct, decision-making norms,
and execution norms. For instance, “if a subject is criminally
capable, it ought to abstain from committing murder” (norm of
conduct). “If a capable subject commits a murder, the judge
ought to impose on him the punishment of fifteen to twenty
years imprisonment” (decision-making norm). “If a judge has
imposed the penalty of fifteen to twenty years imprisonment, the
enforcement organs ought to carry out the punishment” (execution
norm).
4. What does the coerciveness of law consists in?
From among the norms proposed by the CTL coerciveness

does not seem to fall into the domain of either indirect norm or
the direct norms of the first two types: the procedural norms and
empowering norms. It is, then, only to be found among deontic
norms; however, as I shall explain in the sequel, they are not
always in fact found there.
It is evident that indirect norms do not allow for sanctions,
and that they are not coercive stems from their linguistic nature
and their function. The norm that establishes the age of legal
majority (“the age of legal majority is 18”) limits itself to
defining a modality or class of subjects: those of major age. This
norm has very important consequences within the legal system:
those of major age are fully legally capable and for this reason it
is possible for them to perform all kinds of acts with legal
relevance, both lawful and unlawful. However, this norm,
considered in itself, has no sanction. According to it, some
persons are of a certain age and cannot help being so. A norm
which stated something like: “major age is reached with 18, and
whoever fails to comply is subject to a fine of so-and-so-many
euros” would be pointless.
The same holds of all modalities defined by means of ontic
norms (indirect norms of action), because they do not regulate
actions but limit themselves to defining normatively relevant
aspects of actions presupposed in these.
We shall now subject to scrutiny direct norms of action in
their relation to coercion.
The procedural norms, considered in themselves, are not
coercive either, as their function is not determining sanctions but
defining procedures. The procedural norm which provides
instructions as to how enrol at a Faculty does not impose any
obligation on anybody but is restricted to indicating necessary
steps for a successful enrolment. If a person wishes to enrol,
they must (meaning: there remain no other means open to them
than to) follow these procedural steps. In case they fail to do so,
no obligation will be left unmet; simply, the person in question
Gregorio Robles 103
will not have enrolled. And this will be no “sanction,” but simply
a natural consequence of not having followed the procedure.
Empowering norms are not coercive either, and for a similar
reason. The linguistic nature of an empowering norm precludes
the possibility of a sanction. A legal norm expressed thus: “The
owner has the right to sell an object of his property and if he does
not a sanction will be imposed” would make no sense. One may
sell objects of one’s property, but one need not, and, accordingly, it
would be pointless to back up the action with a sanction. If the
owner has the right to sell, he may sell or not sell. The power
bestowed on the owner by the legal system, considered in itself,
excludes the concept of obligation, and consequently, that of
sanction.
The same does not hold of deontic norms. In most cases,
deontic cases of the three species mentioned (norms of conduct,
decision-making norms and execution norms) are connected
with one another: If a norm of conduct is not complied with, a
sanction is imposed by means of a decision-making norm on the
offender, and in its turn the decision-making norm is followed
up with an execution norm which puts the executive organs
under the obligation to carry out that sanction imposed by the
relevant decision-making authority. Normally, norms of these
three modalities work in cooperation.
All that boils down to this: the coerciveness of law consists
in legal systems’ providing for deontic execution norms; i.e.
norms which impose, upon enforcement organs, the obligation
of carrying out the sanction imposed by a decision-making
organ (for instance, a judge).
Given that legal systems usually distinguish between criminal,
civil and administrative sanctions (leaving aside others, such as
disciplinary and international one), the obligation of imposing
those sanctions will be divided among the corresponding executive
bodies of the State. Thus, with reference to criminal law, we shall
say that its coerciveness consists in this, that the organs responsible
for the administration of punishments have the duty of executing
them. If, for instance, the punishment involves a kind of denial
of freedom, those executive bodies will typically be prison staff.
5. Hard and soft legal obligations

Not always, however, are conduct obligations connected
with those of decision-making and execution. In other words:
not always, when we in a legal system encounter a deontic norm
of conduct, shall we, sooner or later, encounter a relative
decision-making norm and an execution norm.
An example: Let us suppose we have a norm of administrative
law that says this: “In this type of matters the officers ought to act
with maximal diligence. An officer who does not act with a minimum
of diligence will be sanctioned with a salary withholding of 15 to 30
days, depending on the gravity of his failure to comply.”
A short reflection on this norm leads us immediately to the
conclusion that three levels of diligence have to be distinguished:
the maximal, the minimal and the medium. The first two are
mentioned in the norm itself. Not so the third one, the medium
diligence, though it is clear that the exegesis of the norm in
question requires taking it into account.
On one hand, the norm at issue requires ‒ for a definite type
of issues ‒ the maximal diligence. On the other hand, it only
penalizes the minimal. The requirement that the diligence
employed should not be minimal constitutes a strong obligation,
because if an officer should fail to meet it, a sanction in form of
withholding 15 to 30 days’ worth of his salary, depending on the
gravity of his non-compliance will hit him.
What happens, however, with the officers who fulfil their duties
with just a medium degree of diligence? A case like that is not
provided for in the norm. What are we to make of it? Some authors
are inclined to say that such obligations not backed up by norms are,
in reality, no legal obligations, but ones of another sort: moral,
social, professional one and so on. In my opinion, such obligations
are legal obligations too, but should be qualified as weak¸ or soft
obligations, on account of not being guaranteed with a sanction.
That they are not so guaranteed does not mean that they lack
legal consequences altogether. For instance, in the case of
several officers vying for promotion, those upon whom the duty
of deciding the competition is incumbent have the ‒ legal ‒ duty
of assessing the degree of diligence in fulfilling professional duties
among the contestants and giving preference to those most diligent.
Gregorio Robles 105
Bibliography
Robles, Gregorio, Las reglas del derecho y las reglas de los juegos,
Universidad de Palma de Mallorca, Palma, 1984.
— Sociología del derecho. Civitas, Madrid, 19972.
— Introducción a la Teoría del Derecho, Debate, Barcelona, 20036.
— El Derecho como Texto, Civitas, Madrid, 20062.
— Pluralismo jurídico y relaciones intersistémicas, Civitas, Madrid, 2007.
— Comunicación, Lenguaje y Derecho, UNAM, México D.F., 2012.
— Teoría del Derecho. Fundamentos de Teoría comunicacional del Derecho,
Civitas, Madrid, 20135.
Maurizio Sozio 107
Maurizio Sozio
What Punishment in a “Brave Neuro World”?
The madman is the man who has lost everything

except his reason.
G. K. Chesterton, Orthodoxy
0. Neuromania
The veritable Copernican revolution generated by the recent

tumultuous developments in the Neurosciences is undoubtedly
influencing the epistemic approach to multiple fields of human
knowledge. The Neurosciences seem to have given rise to a
paradigm shift and to prefigure a “brave new world” on the
horizon, in which (finally?) the neuro-causal chain, which can
account for every human action, could be revealed, thereby
giving a new meaning to the age-old question of human free will.
Not by chance, over the last few decades the suffix neuro- has
begun to precede scientific fields with a different epistemological
status. In the neuro world, like the one-dimensional “brave new
world” envisaged by Aldous Huxley, 1 there are no longer
Aesthetics and Economics, but Neuro-Aesthetics 2 and Neuro-
Economics, 3 while the field of Ethics has been substituted by
Neuro-Ethics,4 and Politics and Law seem to make sense only
1
Aldous Huxley, Brave New World, 1932. As we know, Huxley’s novel
envisages a disquieting new world and anticipates themes such as reproductive
technology, eugenics and mind control.
2
Cf. The monographic volume Art, Mind and Cognitive Science, in
‘Journal of Consciousness Studies,’ 62 (2004), and Arthur P. Shimamura and
Stephen E. Palmer (eds.), Aesthetic Science. Connecting Minds, Brain and
Experience, 2012.
3
Colin Camerer, Neuroeconomics. How the Neuroscience Confirm
Economy, in ‘Journal of Economic Literature,’ 43 (2005), pp. 9–64.
4
Cf. Neil Levy, Neuroethics. Challenges for the 21st Century, 2009.
Steven J. Marcus (ed.), Neuroethics: Mapping the Field, Conference Proceedings,
2002.
when they are declined by the suffix “neuro-” as in Neuro-Politics5

and Neuro-Law.6 Even Religion and Theology, incredibile dictu,
have to make room for Neuro-Theology.7
Undoubtedly the most significant point of impact in the
progress of Neuroscience is in Neuro-Ethics, that is, in all the
questions concerning the relation between neurological patterns
and practical action, and therefore between law and morality.
Nevertheless, it is evident in many ways that Neuroscience is
still in a pre-paradigmatic phase (as Thomas Kuhn calls it); it is
“a fluid discipline, with elastic boundaries, and devoid of a
structure within which one can carry out research regulated by a
community of scholars.” 8 Reflections on neuroscientific data
have had their most important repercussions at the point of
intersection between the theory of moral action and law, that is,
precisely where human responsibility, logically conditioned by
free will, has had an impact on criminal law: in the theory of
punishment and culpability.
As we shall see, the importance of the problem (together
with its critical nature) emerges when evidence from Neuroscience
seems to demonstrate that free will in our Huxleyan brave neuro
world is in some ways illusory.
The philosophical problem of punishment needs to be rethought,
therefore, in the light of the new epistemological paradigm
offered by the implications of contemporary neurodiagnostic
techniques, while continuing to pursue an authentically philosophical
reflection and proposing a solution which includes the a priori
universals9 of the judgement “guilty” and the function of punishment.
5
William Connolly, Neuropolitics: Thinking, Culture, Speed, 2002.
6
Eugenio Picozza, Laura Capraro, Vera Cuzzocrea and David Terracina,
Neurodiritto. Un’introduzione, 2011.
7
Cf. José Manuel Gimenéz-Amaya, ¿Dios en el cerebro? La Experiencia
religiosa desde la neurociencia, in ‘Scripta Theologica,’ 42 (2010), pp. 435–449.
8
Cf. Andrea Lavazza and Giuseppe Sartori, Neuroetica. Una nuova
prospettiva di ricerca, in ‘Giornale italiano di psicologia,’ 4 (2010), pp.
755–778.
9
As indeed is the true task of philosophy.
Maurizio Sozio 109
In the neuro world the question of punishment can only be

faced in a critical sense, which is semantically akin to the Greek
krinō [κρίνω], a sense which shows the fruitfulness of the
support of neuro-diagnostic techniques in separating and
distinguishing any new levels of attributing criminal liability.
Here’s the point. As if it were the symbol of this new world,
neuro-scientific investigations offer us directly the living image
of the “guilty” brain through the technique of brain imaging; as
if the Cartesian res cogitans became the res extensa, as if the
Körper crystallised in itself the Leib.
But what is brain imaging? There are, indeed, many kinds of
brain images. The preferred method for visualising brain images
is the fMRI (functional magnetic resonance imaging) which can
take actual photographs of the brain by measuring haemo-
dynamic changes in the relative concentrations of oxygenated and
deoxygenated blood in local brain tissue, connected to variations in
neuronal activity, which is so-called BOLD (blood oxygenation
level dependent).10 This allows us to study something that it has
never been possible to know before: the ways in which the brain
functions in action, as it thinks, feels, fantasises; but above all (for
our purposes) it allows us to identify with precision the morpho-
functional anomalies responsible for aggressiveness and other
anti-social types of behaviour.11
The Stanford Technology Review has recently published an
in-depth study on fMRI data that can be used to identify
criminal liability and punishment magnitude, with the eloquent
title “Brain Imaging for Legal Thinkers: A Guide for the
Perplexed.”12 The reliability of such techniques is guaranteed by
the existence of two constitutive elements of scientific discovery:
10
Other instruments are PET scanning (positron emission tomography),
EEG and MEG (electroencephalography and magnetoencephalography
respectively).
11
An excellent study in Italian on the techniques of brain imaging is the
volume by Paola Rocca and Filippo Boggetto, Fotografare il cervello, 2010.
12
Owen D. Jones, Joshua W. Buckholtz, Jeffrey D. Schall and Rene
Marois, Brain Imaging for Legal Thinkers: A Guide for the Perplexed, in
‘Stanford Technology Review,’ 5 (2009).
measurement and repeatability of the scientific experiment in

order to validate or refute the hypothesis.13
In the neuro world the relation between mental “illness” and
freedom is rewritten: illness lies in a lack of freedom and, vice
versa, a lack of freedom is illness.14 It is rewritten because the
concept itself of illness, declined as a functional anomaly of the
neuronal circuit, becomes the object of an actio finium
regundorum (an action at law for the definition of boundaries)
which extends its reach, so that not only sexual orientation, a
propensity for religiosity or for veracity, memory, extroversion,
pessimism, fear of risk, self-control, but especially a propensity
for violence, cooperation, racism, in a word, our level of
empathy, are determined by the physiological type (whether
hypo- or hyper- active) of functionality of the brain regions
regulating all the different aspects of one’s ability to interact
with all that is other than oneself.
The purpose of this brief study is to reinterpret the problem
of criminal liability and the function of punishment in the light
of the new panorama opened up by neurodiagnostic techniques
that can reveal the inner structures and workings of the brain,
but without falling into the fundamental psycho-legal error so
dreaded by Stephen Morse.15 To this end I would like to propose
a dual requisite for full criminal liability, which reflects the two
main aspects of the psychic prism: the first conforms to the
verification of the capacity to understand and rationalise our
sense of reality (the existence of what we can call conditions
inherent in the noetic capacity); the second concerns the
criminal’s capacity to see herself in another person’s world and
13
Cf. Paola Rocca and Filippo Boggetto, Fotografare il cervello, 2010,
p. 10.
14
Isabella Merzagora Betsos, Colpevoli si nasce? Criminologia,
determinismo, neuroscienze, 2012, p. 161.
15
For Morse, we fall into the basic psycho-legal error when we
necessarily see a causal nexus between any psychic anomaly and a criminal act.
Cf. Stephan Morse, Brain Overclaim Syndrome and Criminal Responsibility:
A Diagnostic Note, in ‘University of Pennsylvania Law School. Faculty
Scholarship Paper,’ 117 (2006), p. 405.
Maurizio Sozio 111
to perceive their suffering and pain (the existence of what we

can call conditions inherent in the empathetic capacity). But
before that, a brief look at the conditions of criminal liability
established by the Italian and Anglo-Saxon judicial systems.
1. Questions of guilt
In the Italian judicial system criminal liability and the ability
to understand and take action are intimately and logically
connected; they are the conditions for punishment once the
material attribution 16 to the accused of the fact constituting a
crime has been established.
1.1. Sanity and guilt

Article 85 of the Italian penal code reads: “No one shall be
punished for an act defined by law as a crime if s/he was not
responsible at the time s/he committed the act. A person is
responsible who has the capacity to intend and to will.”
But what does “to intend and to will” mean? In short, it
means possessing the cognitive faculties of comprehension and
foresight. For capacity to intend we indicate “possession of
cognitive abilities such as to allow the comprehension of the
elements of choice and their meaning in terms of detachment
from socially shared norms sanctioned by codices.” The
capacity to will can be defined as “self determination in view of
a goal, such as the possibility to choose a line of conduct and to
resist stimuli.”17 So the capacity to intend and to will (disjointed
16
A reference to reasons for non-liability is present in almost all penal
codes; for example: article 44 of the Norwegian penal code, article 33 of the
Dutch penal code, article 64 of the French penal code, articles 51 and 58 of
the German penal code, article 39 of the Russian penal code, article 76 of the
Hungarian penal code, article 10 (inc.1) of the Chilean penal code and article
34 of the Argentinian penal code.
17
Cf. Isabella Merzagora Betsos, L’imputabilità, in Giusto Giusti, Trattato
di medicina legale e scienze affini, Vol. IV (1999), pp. 574–624. See also the
verdict: Cass., Sez. I, n. 13202/1990.
under the law but indistinguishable in the substantial unity of the

psyche) 18 must be taken as the capacity to use one’s own
intellectual and volitional tools in a way that is adequate to the
desired goal.
It is important to underline that – in the light of legal and
juridical directives and according to the dominant doctrinal idea
which this essay seeks to criticise – the capacity for moral
evaluation and empathy have nothing in common with criminal
liability.
Hence the person who is unable to participate affectively
and morally in the sense of penal prohibition cannot see their
responsibility diminished, not even under Article 89 of the
Italian penal code, which calls for a reduced punishment in those
cases in which only the capacity to intend and to will is
diminished.
As one example of the grotesques consequences of the
straightjacket of requisites for full responsibility we can cite the
famous case of Jeffrey Dahmer, the so-called “cannibal of
Milwaukee,” perpetrator of 17 homicides, committed by mutilating
and dismembering his victims (some of whom he ate, while he
kept the body parts of others in a freezer). On one occasion, he
managed to catch up with a young man who had escaped from
his apartment and tell the policemen who had been called to the
scene that the unfortunate youth was delirious and under his care,
as could be seen by his confused and bewildered state, which
Dahmer said was due to intoxication. Dahmer was so convincing
that the policemen entrusted him to “care” for the youth, even
thanking him for his assistance.19
Dahmer was not judged to be “of unsound mind” because
his capacity to intend and to will was intact; he was “just” evil.
The same fate befell one of the first serial killers to be brought
to trial, Albert Fish, cannibal, paedophile and afflicted by
18
Ferrando Mantovani, L’imputabilità sotto il profilo giuridico, in Franco
Ferracuti (ed.), Trattato di Criminologia, Medicina Criminologica e Psichiatria
Forense, Vol. 13 (1990), p. 17.
19
Cf. Don Davis, The Jeffrey Dahmer Story, 1991.
Maurizio Sozio 113
piquerism (actually he was found to be afflicted by all forms of

paraphilia). But is this enough to deem a person fully responsible
or to consider the causal chain freedom-responsibility-guilt-
punishment intact? What if the new neuroscientific techniques
were to show that an affective deficit and an inability to mirror
another’s pain sprang from a functional anomaly in a region of
the brain? What if it were such an anomaly that determined
sociopathic behaviour? We shall look at this topic in greater
depth after we consider briefly the concept of non-responsibility
due to mental infirmity.
1.2. Insanity and guilt
Under what conditions can we say that the capacity to intend

and to will is absent? In general, in modern codified law,
beginning with the English M’Naughten Rules in 1843, the
universally accepted principle20 of non-liability due to insanity,
has widened its net. According to the M’Naughten Rules: “[…]
to establish a defence on the grounds of insanity, it must be
clearly proved that, at the time of the committing of the act, the
party accused was labouring under such a defect of reason, from
disease of the mind, as not to know the nature and quality of the
act he was doing; or, if he did know it, that he did not know he
was doing what was wrong.”21
The adjudication of guilt linked to criminal liability, and so
to an authentic suitas of conduct, is comprised of two phases: a
naturalistic one that concerns the existence of a psychopathology
in the offender, and a prescriptive one that evaluates the effective
existence of the psychopathology at the time and as the cause of
the crime.
In short, mental infirmity is relevant to the claims of
criminal liability (in terms of both extension and intention, to a
20
In Roman Law first fatuitas and furor and later dementia and insania
and mania and amentia were reasons to exclude someone from being punished.
21
Carl Elliot, The Rules of Insanity, 1961, pp. 10–11.
degree that only a judge can evaluate) when it is appreciable, in

the criminogenic process and in the subjects’ representative and
volitional capacity, as a real causal parameter, in the sense of an
aetiological correlation between a psychopathological disturbance
and a committed act, for which the latter (see Article 40 of the
Italian Penal Code) is deemed to have been caused by a
pathological disturbance.22
2. Functions of the Ego
According to Ugo Fornari mental infirmity concerns the

functional autonomy of the ego, since its loss can have different
repercussions on the relative degree of criminal liability and
consequently on the attribution of culpability under the law.
Hence, for a complete exclusion of the capacity to intend
and to will and so of criminal liability, it would be important to
identify grave mental deficiencies, psychoses, personality disorders,
twilight states of consciousness, delirious ideas, abnormal reactions
characterised by an obvious fracture in the normal perception of
reality, and alterations in basic instincts.23
Indeed, any judgement of infirmity that removes the offender
from the circuit of incarceration and places her in a curative
circuit refers inevitably to the functions of the ego. These
functions – cognitive, organisational, insightful, decisional and
executive – must be sufficiently intact for the conditions of
criminal liability and attribution of guilt to be completely integrated.
Let’s get to the point. What happens to the attribution of
criminal liability and guilt in the age of the new neuro world in
which the functions of the ego can be visualised and located
through the techniques of brain imaging? What happens to the
22
Cf. Ferrando Mantovani, L’imputabilità sotto il profilo giuridico, in
Franco Ferracuti (ed.), Trattato di Criminologia, Medicina Criminologica e
Psichiatria Forense, Vol. 13 (1990), pp. 17-40.
23
Ugo Fornari, Nozione di malattia, valore di malattia, vizio di mente e
problemi nel trattamento dell’autore di reato, in ‘Rivista sperimentale di
freniatria e medicina legale delle alienazioni mentali,’ 111 (1987), p. 1043.
Maurizio Sozio 115
suitas of conduct when an anomaly of the amygdalae, for

example, causes aggressive behaviour? How can we adjudicate
those subjects who lose control of their actions because of a
malfunction of the dorsolateral prefrontal cortex governing self
control? What punishment can be given to someone who is
guilty of paedophilia, because of a brain tumour (for example,
clival chordoma or right orbitofrontal tumour)?24
But, above all else, what sense can we give to the function
of punishment in the face of the obvious causal nexus between
neurological structure and criminal behaviour? What punishment,
indeed, in a brave neuro world?
2.1. A neuro-network for moral agency
We’ve already mentioned that, thanks to modern neurodiagnostic

testing, we can isolate the neuronal structures inolved in the
formulation of moral judgements. Ever since the case of Phineas
Cage it has become clear that the frontal lobe of the cerebral
cortex is closely linked to sociability. 25 Indeed, the clinical
24
Cf. Andrea Lavazza and Luca Sammicheli, Il delitto del cervello, 2012.
For the scientific literature, see Jeffrey M. Burns and Russell H. Swerdlow,
Right Orbitofrontal Tumor with Pedophilia Symptom and Constructional Apraxia
Sign, in ‘Archives of Neurology,’ 60 (2003), pp. 437–440; Ronald Langevin,
Sexual Offenses and Traumatic Brain Injury, in ‘Brain and Cognition,’ 60
(2006), pp. 206–207.
25
Phineas Gage (1823–1860), one of the most famous cases from the
field of neuropsychology, showing that the vMPFC is involved in the
empathy circuit. Phineas was a railroad construction foreman who survived
an accident of an iron rod being driven through his brain. Arguably, the main
consequence of the accident (he lived for another twelve years) was that he
lost his empathy. Here’s how it happened. On 13 September 1848, at age
twenty-five, Phineas was working on the railroad, blasting rocks in Vermont.
His job was to add gunpowder and a fuse and to press the gunpowder down
into a hole using an iron rod. The gunpowder exploded unexpectedly, driving
the rod up through the side of his face, behind his left eye, and exiting his
skull. Remarkably, he sat up in the cart as they drove him to the hospital,
conscious and talking. In the years that followed, the main change that people
observed in Phineas was that, whereas previously he had been a polite
individual, now he was childish, irreverent, and rude, uttering profanities and
history of persons affected by an anomaly in the frontal lobe

highlights attention deficit and lack of planning, as well as
alterations in the capacity for intersubjective relations. In these
patients were found abnormal tendencies toward uninhibited
behaviour, as well as (the aspect which most concerns our topic)
alterations in emotional and social intelligence – that is, in the
capacity to feel empathy for others – which render the subject
impervious to others’ suffering and unable to evaluate the moral
range of choices involving others.
As we shall see in greater detail, the capacity for moral
action is a function of the ego connected to the empathetic
circuits present in the ventromedial prefrontal cortex that makes
moral action between humans possible in virtue of the
intersubjective recognition that takes place within the framework
of mirror neuronal activities.
The mirror system allows us to change places in our
imagination and therefore it makes possible both peaceful
coexistence between individuals and the sentiment of solidarity.
We’ll return to this topic, but now it’s important to underline the
strict nexus between the intact functionality of certain parts of
the brain and antisocial behaviour, which is the prime target of
penal sanctions.
In The Science of Evil. On Empathy and the Origin of
Cruelty, Baron-Cohen identifies ten regions in the empathetic
circuit. In detail, the most important are four: the medial prefrontal
cortex “which is thought of as a hub for social information
processing and is important for comparing your own perspective to
someone else’s;” the dorsal part is involved in thinking about
other people’s thoughts and feelings (sometimes called “meta-
representation”) as well as when we think about our own
thoughts and feelings;26 the anterior insula “which plays a role
showing no social inhibition. He had lost his empathy. More than a century
later, neuroscientist Hanna Damasio and colleagues obtained his preserved skull
and, using modern neuroimaging, calculated that the rod must have damaged his
vMPFC.
26
Simon Baron-Cohen, The Science of Evil, 2011, p. 29.
Maurizio Sozio 117
in bodily aspects of self awareness, itself closely tied to

empathy,” 27 neurologists found that when a person receives a
painful stimulus on their hand or that of their loved one, the
anterior insula and a part of the cingulate cortex are activated
whether you are experiencing your own pain or perceiving your
loved one’s pain; the right temporo-parietal junction, which “is
more relevant to the recognition element of empathy, or to what
is sometimes called a theory of mind.” We use our theory of
mind when we try to imagine someone else’s thoughts. “Damage
to the TPJ can lead not only to difficulties in judging someone’s
intentions;”28 the amygdalae, which are involved in emotional
learning and regulation, for example, a patient with damage to
both amygdalae has great difficulty in recognising fearful
emotions in others’ faces.
The neural basis of sociality – that is, the capacity to
represent other people’s mental states (theory of mind) and to
share their feelings – are located in the empathetic circuit of
the frontal limbic lobe. What empirical-clinical evidence has
demonstrated the nexus between the disconnection of the
empathetic circuit and criminal activity? Many clinical tests and
experiments, conducted with advanced techniques of neuro-
imaging, have revealed that in the prison population those
condemned for homicide present significant reductions in the
development of the prefrontal cortex when compared with the
control group.
Among the many studies confirming Baron-Cohen’s theory,
we can cite Adrian Raine, who interprets “criminal behaviour as
a clinical disorder.”29 For Raine, who has studied cerebral function
in serial killers as well as in those condemned for crimes of
aggression or violent anti-social behaviour, what determines the
violent behaviour of these subjects is a disconnection between the
frontal cortex and the amygdalae, that is, between the region
27
Ibid.
28
Ibid., p. 36.
29
Adrian Raine, The Psychopathology of Crime: Criminal Behavior as a
Clinical Disorder, 1993.
governing behavioural modulation (the frontal cortex) and the

structures implicated in the response to emotional stimuli (the
amygdalae).
Raine’s studies have also revealed a difference between
“cold-blooded” and impulsive “hot-blooded” killers, noting a
reduction in the activity of the prefrontal regions almost exclusively
in impulsive killers, unlike more rational and calculating killers.30
Moreover, the studies conducted by Brower and Price, as
well as those by Bufkin and Luttrell31 have underlined how the
incapacity to feel pain on behalf of another or to feel empathy,
(the state Baron-Cohen calls zero degree of empathy) which
characterises the behaviour of a high percentage of violent
criminals, is generated by a dysfunction of the frontal lobe circuit.
In short, the propensity to commit violent or particularly
sadistic crimes seems to be determined by deficits in the
neuronal circuit that generates our empathetic capacity. But what,
more specifically, is the empathetic circuit?
2.1.1. Trolley Problem
To help us understand the importance of the empathetic

circuit in the activity of moral decision-making and hence the
existential dimension of intersubjectivity, we can look at the
results of the famous experiment carried out by the moral
philosopher Philippa Foot, and more recently by Joshua Greene,
which demonstrated that in moral judgements something more is
30
Cf. Adrian Raine, J. Reid Meloy, Susan Bihrle, Jackie Stoddard and
Lori LaCasse, Reduced Prefrontal and Increased Subcortical Brain Functioning
Assessed Using Positron Emission Tomography in Predatory and Affective
Murderers, in ‘Behaviour Science Law,’ 16 (1998), pp. 319–332.
31
Montgomery C. Brower and Bruce H. Price, Neuropsychiatry of Frontal
Lobe Dysfunction in Violent and Criminal Behavior: A Critical Review, in
‘Journal of Neurology Neurosurgery & Psychiatry,’ 71 (2001), pp. 720–726;
Janal L. Bufkin and Vickie R. Luttrell, Neuroimaging Studies of Aggressive
and Violent Behaviour: Current Findings and Implications for Criminology
and Criminal Justice, in ‘Trauma, Violence, Abuse,’ 6 (2005), 176–191.
Maurizio Sozio 119
present than a simple cognitive-utilitarian-decisional judgement.32

The experiment was called the Trolley Problem.
Greene reformulated Foot’s intuitions by placing subjects in
a similar dilemma, but in two different scenarios: (i) switch
dilemma and (ii) footbridge dilemma.
(i) In the first the subject plays the role of a tram driver
whose brakes don’t work, while lying on the track in front of
him are five line-workers. Not able to brake in order not to hit
and kill the five men, all he can do is to switch track, but in
doing so his tram will hit and kill one person on the other track.
So the problem is: should the tram driver continue along the
same track and kill five people or should he decide to switch
track to minimise the damage and kill one person? In this case
95% of the participants thought it was better to switch track in
order to minimise the damage.
(ii) In the second case the subject is on a footbridge over the
track of the runaway tram. The situation is virtually identical to
the first in that there are five people lying on the track in the
path of the oncoming tram; and clearly it will hit and kill them.
So, in the words of Judith Jarvis Thomson: “As it happens, there
is a very fat man next to you – your only way to stop the trolley
is to push him over the bridge and onto the track, killing him to
save five. Should you proceed?”
While the outcome in itself is the same (one person must die
so that five can live) the results of the two different experiments
are not. If ethical decisions were perfectly rational then the test
subjects would be as willing to push the fat man onto the tracks
as they were to switch tracks. Instead, in the second case the
percentage was much lower: hardly anyone was willing to push
the fat man off the footbridge. Why? Because the two decisions
come from two different neural sets: the first is correlated with
32
This refers to the famous trolley car problem: Philippa Foot, Virtues
and Vices and Other Essays, 1978. Joshua Greene, Brian Sommerville, Leigh
Nystrom, John Darley and Jonathan Cohen, An fMRI Investigation of Emotional
Engagement in Moral Judgment, in ‘Science,’ 293 (2001), pp. 2105–2110. Lastly:
David Edmonds, Would You Kill the Fat Man? The Trolley Problem and What
Your Answer Tells Us about Right and Wrong, 2014.
involvement in an impersonal type of action, while the second

triggers the neuronal circuit that is activated for personal
involvement. As Greene confirms with the aid of neuro-imaging
in his work The Neural Bases of Cognitive Conflict and Control
in Moral Judgment, the experiment indicates that the rational-
utilitarian organisation of neural sets is different from the
emotional one: “ The results indicate that brain regions associated
with abstract reasoning and cognitive control (including dorsolateral
prefrontal cortex and anterior cingulate cortex) are recruited to
resolve difficult personal moral dilemmas in which utilitarian
values require ‘personal’ moral violations, violations that have
previously been associated with increased activity in emotion-
related brain regions. Several regions of frontal and parietal
cortex predict intertrial differences in moral judgment behaviour,
exhibiting greater activity for utilitarian judgments”. 33 Greene
speculates that the controversy surrounding utilitarian moral
philosophy reflects an underlying tension between competing
subsystems in the brain.
A decisive counter-test of the activation of the empathetic
circuit, in choices involving intersubjective relations characterised
by personal involvement, is found in the results of the Trolley
Test when undertaken by subjects with prefrontal lobe damage.
In this experiment the subjects’ behaviour remained the same in
the two different scenarios; nothing changed in their perception,
even when they personally had to push the fat man off the
footbridge.34
So the reaction to the two scenarios, bar any anomaly in the
empathetic circuit, can be called universally divergent, despite
religious or cultural differences: in the switch problem the rational
decision-making structure of the neuronal set is activated, while
33
Joshua D. Green, Leigh D. Nystrom, John M. Darley, Andrew D.
Engell and Jonathan Cohen, The Neural Bases of Cognitive Conflict and
Control in Moral Judgment, in ‘Neuron,’ 44 (2004), p. 389.
34
Cf. Michael Koenigs, Liane Young, Ralph Adolphs, Danie Tranel,
Fiery Cushman, Marc Hauser and Antonio Damasio, Damage to the prefrontal
cortex increases utilitarian moral judgments, in ‘Nature,’ 446 (2007), pp.
908–911.
Maurizio Sozio 121
in the footbridge problem a different pattern of cerebral response

is activated: the cerebral parcels involved are functional for
the comprehension of others’ feelings and allow the subjects
to put themselves in someone else’s place. When the subject’s
empathetic circuit is damaged the results of the two scenarios
are identical.
2.1.2. Shared manifolds
The Copernican revolution generated by the use of brain

imaging to decode the nature of human behaviour does not only
have neurological implications, but has also had philosophical
repercussions; and these have been especially fruitful in the theory
of intersubjectivity and empathy. Confirmation of the existence of a
biological condition enabling the experience of intersubjectivity
and of coexistence has redirected, in a neurological key,
philosophical studies of moral sentiment, in the wake of David
Hume, as well as studies of the phenomenology of perception,
as a continuation of Maurice Merleau-Ponty’s intuitions.
Moreover, the influence of brain imaging has been especially
fruitful for a neuro-phenomenological approach that can reinterpret
Husserlian phenomenology in the light of evidence coming from
the empathetic circuit and the functioning of mirror neurons. As
Laura Boella writes, attention toward a corporeal structure is
useful in repositioning Husserl’s and Heidegger’s phenomenology,
since they focus attention directly on the Umwelt, while overlooking
the bio-organic roots of empathy. Instead, it is precisely an
original corporeal association that allows for the possibility of a
Husserlian Paarung35 [pairing] between “what I know and feel
in the first person and what I see and feel in another.”36
35
Cf. Edmund Husserl, Cartesianische Meditationen aund Pariser Vorträge,
1950.
36
Cf. Laura Boella, Neuroni specchio: parlano i filosofi. Intervista a
Laura Boella, in Brainfactor.it, 01.06.2009.
Mirror systems are therefore authentic transcendentals of

intersubjectivity, conditions of pairing between regions of the
brain corresponding to the original direct inter-corporeal link
between all beings belonging to a common world.
This intersubjective bond, generated by the web of organic-
experiential conditions, has been reinterpreted in a neuro-
phenomenological key by Vittorio Gallese37 as “shared manifolds”
beginning with his studies on mirror neurons. Gallese’s shared
manifolds represent a system which makes possible recognition
between human beings, allows for intersubjective communication,
the imitation and attribution of intentions in others, as well as
understanding the significance of others’ sensations and emotions.
It is a system that generates social skills and the capacity to
understand the actions of others. And in this shared world the
penal system comes into play with the declared purpose of
reviving in the criminal her lost social skills. Gallese38 divides
the system into three interconnected levels: the sub-personal,
consisting in the mirror neuronal system; the functional,
allowing for the embodied simulation of another person in the
cerebral circuits; and the phenomenological, conforming to
intentional attunement. Hence, the fabric, the bricks of which
the system is built are the mirror neurons, which reflect the
surrounding world and make embodied simulation possible,
which in turn allows for intentional attunement with another ego.
But what is intentional attunement? With Heidegger, we can
say that states of mind, emotions, are fundamental forms of
opening, so that “The mood has already disclosed, in every case,
37
The scientific literature on mirror neurons includes the results of the
team headed by Giacomo Rizzolatti: Giacomo Rizzolatti, Luciano Fadiga,
Vittorio Gallese and Leonardo Fogassi, Premotor Cortex and the Recognition
of Motor Acts, in ‘Cognitive Brain Research,’ 3 (1995), pp. 131–141; Roy
Mukamel, Arne D. Ekstrom, Jonas Kaplan, Marco Iacoboni and Itzhak Fried,
Single-Neuron Responses in Humans during Execution and Observation of
Actions, in ‘Current Biology,’ 8 (2010), pp. 750–756.
38
Vittorio Gallese, The “Shared Manifold” Hypothesis. From Mirror
Neurons to Empathy, in ‘Journal of Consciousness Studies,’ 8 (2001), pp.
33–50.
Maurizio Sozio 123
Being-in-the-world as a whole, and makes it possible first of all

to direct oneself toward something.”39
It is precisely this directing-oneself-toward-something, as a
necessary correlation to understanding what is other than oneself,
that constitutes intentional attunement and mutual recognition. It
provides the objectivity of reality. The quality of our lived
experience [Erlebnis] of the outside world depends on our
attunement to it. From the hammer40 to the other-than-oneself,41
our attunement to everything surrounding us is characterised
by our being-in-the-world [In-der-Welt-sein]. It is intentional
attunement that creates phenomenologically the sense of familiarity
with others and that contributes to creating the feeling of
empathy and the possibility of coexistence.
The actions, emotions and sensations of others acquire
significance for us in virtue of our capacity to share them
experientially thanks to the presence of a common representational
format which is embodied biologically. Crimes, especially crimes
against people, seem like the negation of intentional attunement.
Now we need to ask whether judgements of criminal liability
(and hence the condemnation of a certain line of conduct) should
take into account the new neuroscientific evidence and whether,
in the new neuro world, we need to add to the already known
conditions for criminal liability a capacity for empathy, for
feeling pain over someone else’s suffering, the embodied
simulation of others’ feelings and intentional attunement.
In order to be efficacious and just, therefore, sentencing
must be conditioned by verification in the accused not only of a
cognitive capacity, but also of an emotional one. So, in order to
be punished both the criminal’s cognitive capacity and empathetic
capacity must be intact. Like the capacity to intend and to will,
the empathetic capacity can be measured in some way. Indeed,
Baron-Cohen has identified a zero degree of empathy in narcissistic,
borderline and psychopathic personalities.
39
Martin Heidegger, Being and Time, 1962, p. 176.
40
Given, à la Heidegger, in the form of usefulness, and seeing it stimulates
the neuromotor set governing it potential use.
41
Whose emotions elicit the capacity to feel empathy (Einfühlung).
In short, the intact capacity to relate to others in an

intersubjective way and to be the object of punishment as a
retributive act must depend on two conditions: that the accused
possesses the capacity both to intend and to will and to
empathise, which Baron-Cohen describes as “our ability to
identify what someone else is thinking or feeling and to respond
to their thoughts and feelings with an appropriate emotion.”42
2.2. Rethinking guilt: free will or free won’t?
Once the patterns of neural activity associated with honest

and dishonest moral decisions have been demonstrated, the
problem of the function of punishment remains to be faced.
Indeed, the studies made possible by the new toolbox of the
neuro world suggest rethinking its function. Beginning with
Aristotle’s Nicomachean Ethics, a precondition of the social life
of the zōon politikon has always been the claim that man is the
master of his own actions. Hence the causal nexus freedom-
responsibility-guilt-punishment.
Yet the classic interpretation of this nexus has been severely
put to the test by recent experiments, especially one by Libet,
which demonstrated how “readiness potential,” which indicates
a neuronal activation of our motor programming, appears
temporally before the surfacing in consciousness of the intention
to commit an action. Nevertheless, Libet still manages to “save”
the concept of free will by reinterpreting it43. Just as Michael
Gazzaniga would later do in The Ethical Brain, by calling it free
won’t rather than free will:44 there is still a slim temporal margin
between awareness of an action and committing it; time enough,
nevertheless, for the subject to stop herself from acting. This
change of perspective in defining free will sheds a different light
42
Simon Baron-Cohen, The Science of Evil, 2011, p. 16.
43
Cf. Benjamin Libet, Mind Time. The Temporal Factor in Consciousness,
2004.
44
Cf. Michael Gazzaniga, The Ethical Brain, 2005.
Maurizio Sozio 125
on the relation between brain and crime. An individual’s violent

criminality, especially for violent or anti-coexistential conduct,
could be caused, not by the loss of free will, but by the loss of
the freedom to veto an action, which is connected with the
malfunction of brain regions governing self-control (for example,
the dorsolateral prefrontal cortex) or by a deficiency in the
empathetic circuit.
Having established the coordinates around which the study
of the neurobiological basis of criminal behaviour develops, it
remains to be seen how to rethink the philosophy of punishment
in the new semantic context of a neurobiological explanation for
violent behaviour.
3. What Punishment in a new neuro world? A third view?
Traditionally the philosophy of punishment responds to the

Grundfrage (basic question) of the function of penal sanctions
with three answers:45 punishment as retribution, punishment as
correction, punishment as deterrent (both general and specific).
The first is a legacy of ius talionis and bases punishment on
the retributive principle of malum passionis propter malum
actionis: the painful nature of punishment is necessary as payback
for a wrongful action. The second, brainchild of the Enlightenment,
justifies penal sanction with the principle of correction, that is,
punishment should tend toward the re-education of the offender in
view of her return to society. The third, on the other hand, is the
preventative function, which endorses punishment as deterrence,
both ante factum, in a general sense with regard to others, and
post factum, in a specific sense, so that the individual offender
does not repeat her crime.
In the changed scenario of the brave neuro world the
question of the function of punishment must be reformulated in
the light of the new strata of meaning which render problematic
45
On the function of punishment, see Luigi Ferrajoli, Teoria del garantismo
penale, 2009.
the results of the above three answers. For instance, does it make
sense to speak of retribution in those cases in which the person
who has committed a violent act has an internal rupture of the
orbitofrontal cortex that regulates decision-making? Does the
objective of general prevention (in any penal policy on statutory
penalties) make sense when the cerebral region predisposed for
self control and planning ahead has a functional anomaly and so
cannot block the reward pathway stimuli coming from the
limbic system? (Just think of the futility of the death penalty in
reducing the number of homicides in those countries where it is
in force.) Would a punishment aimed at correction that leaves
intact the neural set predisposing the subject to violent acts
make any sense? (Just think of the recidivism of subjects prone
to violence within the family.)
What is the risk, on the other hand, of taking to its extreme
consequences an interpretation of crime as an exclusively neuro-
correlated event? The risk is the creation of a model of neuro-
person impermeable to praise or blame, with all due respect to
Strawson’s 46 Freedom and Resentment. Let’s be clear, in this
case too punishment and penal law would conserve their raison
d’être even when declined from a consequentialist perspective.
Punishment would be justified by its beneficial effects: giving
the victim a sense of justice being done and safeguarding society
from dangerous elements.47 In short, punishment no longer as
retribution but as “incapacitation,” that is, as neutralising the
offender. But perhaps the backdrop of the new neuro world is
not so disquieting if we consider a third option.
In this brief essay we have stressed the need for a totally
responsible agent to possess two essential conditions: the capacity
to intend and to will and a sufficiently intact empathetic capacity,
since the diagnostic tools in the new neuro world can reveal the
46
Cf. Peter Frederick Strawson, Freedom and Resentment, in ‘Proceedings
of the British Academy,’ 48 (1962), pp. 1–25.
47
On the dangers of the connection between security and the neurosciences,
see Andrea Lavazza, and Luca Sammicheli, Il delitto del cervello, 2012, pp.
242–246.
Maurizio Sozio 127
existence or absence of the latter. Now, in the case of a complete

incapacity to intend and to will due to a serious psychopathology,
clinical treatment is justified, while in the case of empathetic
incapacity (or an absence of the empathetic capacity) punishment
should aim to restore this capacity in the offender.
De iure condendo, a successful epistemic synergy could be
envisaged between legal knowledge and the neurosciences,
including a check-up of the offender’s empathetic capacity in
order to identify the right kind of punishment; and if the specific
case required it, then the third type of sanction, i.e. re-empathisation,
could be adopted. In the brave neuro world, however, we can
discern that everything and yet nothing really changes with
regard to justifications for punishment.
If the function of punishment were to re-empathise the
offender by restoring the empathetic circuits regulating the
capacity for coexistence and recognition, without any risk of
permanent incapacitation, then this kind of penal sanction would
fulfil the principle of finding the right kind of punishment,
which is at the core of the 1975 penitentiary reform in Italy, for
instance. For it is the application sub specie neurologiae of
Article 27 of the Italian Constitution: punishment must tend
toward the re-education of the condemned.
And there would be no risk of medicalising the punishment.
Re-education of an offender with diminished empathetic capacity
would aim to revive her intentional attunement, that specific form
of recognition of the other embodied in the empathetic circuits.
Medicalisation would intervene only in the most serious cases of
zero empathy, of the psychopathic type described by Baron-Cohen,
through pharmaceutical treatment with clozapine, lithium, and
inhalations of the “hormone of morality,” oxytocin,48 as well as
tools for cerebral neuro-modulation.49
48
Churchland reduces all morality to a physiological balance of oxytocin.
Cf. Patricia Churchland, Braintrust: What Neuroscience Tells Us about
Morality, 2011.
49
Cf. Vittorio A. Sironi and Mauro Porta, Il controllo della mente. Scienza
ed etica della neuromodulazione cerebrale, 2011.
This is not, as it might seem, the disquieting scenario of

Burgess’ Ludovico Cure (made famous in Kubrick’s film), but
rather a more respectful alternative for the offender than
incapacitation ad libitum in a psychiatric prison ward, a dangerous
and hybrid institution, neither prison nor clinic. The re-education
of an offender with an empathetic deficit would therefore be
through detention oriented toward stimulating the re-education
of feelings and resetting the empathetic circuit.
How would this come about? Here too neuroscientific research
comes to our aid. The same Empathy Training Program used for
autistic patients to help them overcome “mind blindness”50 could
be applied to the offender. Voluntary service, pet therapy, role
playing in which the offender interacts with another’s painful
situation are further possibilities. For a sentimental re-education,
there could be recourse to literature, the figurative arts, and
music in order to create occasions for resetting the empathetic
circuits through “empathetic infection.”51
3.1. Empathetic infection
Re-empathise rather than re-socialise seems to be the preferred

kind of treatment for the offender who is unable to feel empathy
or put herself in someone else’s place.
As already mentioned, however, in the new neuro world
plus ça change plus c’est la même chose. The idea of re-
education as empathetic “infection” was already present at the
dawn of Greek philosophy, signally in the dynamics of theatrical
empathising, in which the emotion of Ein-Fühlung (in-feeling)
is created and amplified, and is oriented toward the achievement
of catharsis, which is the release of lived passions through their
50
Cf. Simon Baron-Cohen, The Science of Evil, 2011, p. 176.
51
Vittorio Gallese and David Freedberg, Mirror and Canonical Neurons
are Crucial Elements in Esthetic Response, in ‘Trends in Cognitive Science,’
11 (2007), p. 410. On “empathetic penal law,” albeit intended in another way,
see Ombretta Di Giovine. Cf. Ombretta Di Giovine, Un diritto penale empatico?
Diritto penale, bioetica e neuroetica, 2009.
Maurizio Sozio 129
embodied simulation, thanks to the identification between actor

and spectator.
From the pages of Aristotle and Plato on theatre to Georg
Simmel’s Zur Philosophie des Schauspielers (1908) and
Stanislavsky’s method acting, to the experimental theatre of the
mid 20th century, the idea of the spectator’s ec-stasy as a “coming
out of oneself” elicited by the psycho-pedagogic and infective
power of kinematic forms seems like a diachronic “given.”
Indeed, for Lynn Hunt,52 the “power of empathy” conveyed to
civil society by the 18th century epistolary novel would be a
driving force in the birth of the concept of the “human rights.”
The evocative image of the allure of poetry, as a dynamic of
“sympathetic natural infection,”53 comes to us from Plato through
the words of Ion, who tells us how the chain of theatrical
magnetism begins with the gods and is conveyed from the poet
to the rhapsode in order to resonate in the spectator. Ion says:
“For I must frankly confess that at the tale of pity my eyes are
filled with tears, and when I speak of horrors, my hair stands on
end and my heart throbs [...] for I look down upon them from
the stage, and behold the various emotions of pity, wonder,
sternness, stamped upon their countenances when I am speaking,
and I am obliged to give my very best attention to them; for if I
make them cry, I myself shall laugh, and if I make them laugh, I
myself shall cry, when the time of payment arrives.”54
That literature can be a force for change is also found in
Gorgias in his Encomium of Helen, in which the performative
power of words generates consonance and change, and solicits
compassion: “And at the actions and physical sufferings of
others in good fortunes and evil fortunes, through the agency of
words, the soul is wont to experience a suffering of its own.
But come, I shall turn from one argument to another. Sacred
52
Cf. Lynn Hunt, Inventing Human Rights. A History, 2007.
53
Andrea Pinotti, Empatia. Storia di un’idea da Platone al postumano¸
2011.
54
Plato, Ion, in Benjamin Jowett (ed. and tr.), The Dialogues of Plato,
Vol. I, 1892, pp. 503-504.
incantations sung with words are bearers of pleasure and banishers

of pain, for, merging with opinion in the soul, the power of the
incantation is wont to beguile it and persuade it and alter it by as
witchcraft.”55
This is indeed the spark to ignite empathy.
55
Gorgias, (George Kennedy (tr.)), Encomium of Helen, in Rosamond
Kent Sprague (ed.), The Older Sophists, 2001, p. 52.
Maurizio Sozio 131
Bibliography
Baron-Cohen, Simon, The Science of Evil. On Empathy and the Origin of

Cruelty, Basic Books, New York, 2011.
Boella, Laura, Neuroni specchio: parlano i filosofi, in Brainfactor.it, 1.06.2009.
Brower, Montgomery C. and Bruce H. Price, Neuropsychiatry of Frontal
Lobe Dysfunction in Violent and Criminal Behavior: A Critical Review,
in ‘Journal of Neurology Neurosurgery & Psychiatry,’ 71 (2001), pp.
720–726.
Bufkin, Janal L. and Vickie R. Luttrel, Neuroimaging Studies of Aggressive
and Violent Behavior: Current Findings and Implications for Criminology
and Criminal Justice, in ‘Trauma Violence Abuse,’ 6 (2005), pp. 176–191.
Burns Jeffrey M. and Russell H. Swerdlow, Right Orbitofrontal Tumor with
Pedophilia Symptom and Constructional Apraxia Sign, in ‘Archives of
Neurology,’ 60 (2003), pp. 437–440.
Camerer, Colin, Neuroeconomics. How the Neuroscience Confirm Economy,
in ‘Journal of Economic Literature,’ 43 (2005), pp. 9–64.
Churchland, Patricia, Braintrust: What Neuroscience Tells Us about Morality,
Princeton University Press, Princeton, 2001.
Connolly, William, Neuropolitics: Thinking, Culture, Speed, Minnesota University
Press, Minneapolis, 2002.
Davis, Don, The Jeffrey Dahmer Story, St. Martin’s Press, New York, 1991.
Di Giovine, Ombretta, Un diritto penale empatico? Diritto penale, bioetica e
neuroetica, Giappichelli, Torino, 2009.
Edmonds, David, Would You Kill the Fat Man? The Trolley Problem and
What Your Answer Tells Us about Right and Wrong, Princeton University
Press, Princeton, 2014.
Elliot, Carl, The Rules of Insanity: Moral Responsability and the Mentally Ill
Offender, Albany, New York, 1961.
Ferrajoli, Luigi, Teoria del garantismo penale, Laterza, Roma/ Bari, 2009.
Foot, Philippa, Virtues and Vices and Other Essays, Blackwell, Oxford, 1978.
Fornari, Ugo, Nozione di malattia, valore di malattia, vizio di mente e
problemi nel trattamento dell’autore di reato, in ‘Rivista sperimentale di
freniatria e medicina legale delle alienazioni mentali,’ 111 (1987) pp.
1043–1063.
Gallese Vittorio and Daniel Freedberg, Mirror and Canonical Neurons Are
Crucial Elements in Esthetic Response, in ‘Trends in Cognitive Science,’ 11
(2007), p. 41.
Gallese, Vittorio, The “Shared Manifold” Hypothesis. From Mirror Neurons
to Empathy, in ‘Journal of consciousness studies,’ 8, no. 5–7, (2001), pp.
33–50.
Gimenéz-Amaya, José Manuel, ¿Dios en el cerebro? La Experiencia religiosa
desde la neurociencia, in ‘Scripta Theologica,’ 42 (2010), pp. 435–449.
Green Joshua D., Leigh D Nystrom, John M. Darley, Andrew D. Engell and
Jonathan Cohen, The Neural Bases of Cognitive Conflict and Control in
Moral Judgment, in ‘Neuron,’ 44 (2004), pp. 389–400.
Greene Joshua, Brian Sommerville, Leigh Nystrom, John Darley and Jonathan
Cohen, An fMRI Investigation of Emotional Engagement in Moral
Judgment, in ‘Science,’ 293 (2001), pp. 2105–2110.
Heidegger, Martin, Being and Time, Blackwell, Oxford, 1962.
Hunt, Lynn, Inventing Human Rights. A History, Norton & co, New York,
2007.
Huxley, Aldous, Brave New World, Harper Collins, New York, 1932.
Husserl, Edmund, Cartesianische Meditationen und Pariser Vorträge, Nijhoff,
Den Haag, 1950.
Jones, Owen D., Joshua W. Buckholtz, Jeffrey D. Schall and Rene Marois,
Brain Imaging for Legal Thinkers: A Guide for the Perplexed, in ‘Stanford
Technology Review,’ 5 (2009).
Kent Sprague, Rosamond (ed.), The Older Sophists, Hackett Publishing,
Indianapolis, 2001.
Koenigs, Michael, Liane Young, Ralph Adolphs, Danie Tranel, Fiery Cushman,
Marc Hauser, and Antonio Damasio, Damage to the Prefrontal Cortex
Increases Utilitarian Moral Judgments, in ‘Nature,’ 446 (2007), pp.
908–911.
Langevin, Ronald, Sexual Offenses and Traumatic Brain Injury, in ‘Brain
and Cognition,’ 60 (2006), pp. 206–7.
Lavazza, Andrea and Luca Sammicheli, Il delitto del cervello, Codice Edizioni,
Torino, 2012.
Lavazza, Andrea and Giuseppe Sartori, Neuroetica. Una nuova prospettiva di
ricerca, in ‘Giornale italiano di psicologia,’ 37 (2010), pp. 755–778.
Levy, Neil, Neuroethics. Challenges for the 21st Century, Cambridge University
Press, New York, 2009.
Libet, Benjamin, Mind Time. The Temporal Factor in Consciousness, Harvard
University Press, Harvard, 2004.
Mantovani, Ferrando, L’imputabilità sotto il profilo giuridico, in Franco Ferracuti
(ed.), Trattato di criminologia, medicina criminologica e psichiatria forense,
Vol. 13, Giuffrè, Milano, 1990, pp. 17–40.
Marcus, Steven J. (ed.), Neuroethics: Mapping the Field, Conference
Proceedings. The Dana Foundation, New York, 2002.
Merzagora Betsos, Isabella, Colpevoli si nasce? Criminologia, determinismo,
neuroscienze, Raffaello Cortina, Milano, 2012.
Merzagora Betsos, Isabella, L’imputabilità, in Giusto Giusti, Trattato di
medicina legale e scienze affini, Vol. IV, Cedam, Padova, 1999, pp.
574–624,
Michael, Gazzaniga, The Ethical Brain, Dana Press, New York, 2005.
Morse, Stephan J., Brain Overclaim Syndrome and Criminal Responsability:
A Diagnostic Note, in ‘University Pennsylvania Law School,’ (Faculty
Scholarship Paper 117), 3 (2006), pp. 397–412.
Mukamel, Roy, Arne D. Ekstrom, Jonas Kaplan, Marco Iacoboni and Itzhak
Fried, Single-Neuron Responses in Humans During Execution and
Observation of Actions, in ‘Current Biology,’ 20 (2010), pp. 750–756
Picozza, Eugenio, Laura Capraro, Vera Cuzzocrea and David Terracina,
Neurodiritto. Un’introduzione, Giappichelli, Torino, 2011.
Maurizio Sozio 133
Pinotti, Andrea, Empatia. Storia di un’idea da Platone al postumano, Laterza,

Roma/ Bari, 2011.
Plato, Ion, in Benjamin Jowett (ed. and trans.), The Dialogues of Plato, Vol. I,
Oxford Clarendon Press, Oxford, 1892, pp. 491–512.
Raine, Adrian, Reid J. Meloy, Susan Bihrle, Jackie Stoddard and Lori
LaCasse, Reduced Prefrontal and Increased Subcortical Brain Functioning
Assessed Using Positron Emission Tomography in Predatory and Affective
Murderers, in ‘Behavioral Sciences & the Law,’ 16 (1998), pp. 319–332.
Raine, Adrian, The Psychopathology of Crime: Criminal Behavior as a
Clinical Disorder, Academic Press, San Diego, 1993.
Rizzolatti, Giacomo, Luciano Fadiga, Vittorio Gallese and Leonardo Fogassi,
Premotor Cortex and the Recognition of Motor Acts, in ‘Cognitive Brain
Research,’ 3 (1995), pp. 131–141.
Rocca, Paola and Filippo Boggetto, Fotografare il cervello, Bollati Boringhieri,
Torino, 2010.
Shimamura Arthur P. and Stephen E. Palmer (eds.), Aesthetic Science. Connecting
Minds, Brain and Experience, Oxford University Press, Oxford, 2012
Sironi, Vittorio A. and Mauro Porta, Il controllo della mente. Scienza ed etica
della neuromodulazione cerebrale, Laterza, Roma/ Bari, 2011.
Strawson, Patrick Frederick, Freedom and Resentment, in ‘Proceedings of the
British Academy,’ 48 (1962), pp. 1–25.
Leo Zaibert 135
Leo Zaibert
Justifying Incarceration*
There exists a certain disconnect between the vast literature

on the justification of punishment, understood somehow in
abstract, and the much more limited literature on the justifications
of specific forms of punishment. Consider the central debate
surrounding the justification of punishment (in abstract), the debate
which opposes retributivism and consequentialism. Famously,
though in an oversimplified manner, retributivists assert that
punishment is justified by the fact that it is deserved, and not by
the ulterior consequences that its imposition may bring about.
Contrariwise, consequentialists, and as the very name of this
position suggests, claim that what justifies punishment is this or
that consequence that follows the imposition of punishment
(thus, deterrence, incapacitation, rehabilitation, and so on, are all
forms of consequentialism). But the participants in this debate,
be they retributivists or consequentialists, rarely engage with the
question as to what the justifications for this or that specific
form of punishment may turn out to be.
Perhaps we can see the particular issue of death penalty in
the United States as an exception to my thesis that the abstract
discussion of punishment in abstract crowds out the more concrete
discussion of the specific forms of inflicting punishment. After all,
many of those interested in the moral and political legitimacy of
this particular form of punishment do discuss, sometimes centrally,
whether the death penalty deters, or whether there are crimes so
heinous that their perpetrators in fact deserve to die. Still, there are
at least two reasons why even in the case of the death penalty, the
philosophical discussion of the justification of the specific forms of
punishment is to an extent relegated to a second plane. One of
these reasons is a good one, the other one is not.
*
With thanks to Anna Schur.
The good reason is that there is in fact much more to the

discussion of the death penalty than the question of whether it is
deserved, or whether it may deter others. Even if in this or that
occasion this or that criminal may fully deserve to die for what she
has done, and her death would have only positive consequences of
the sorts favored by consequentialists, the question as to whether
the state should be in the business of killing people remains
perfectly pertinent. In other words, political principles other than
those related to the match between offenses and their punishments,
or those related to the consequences of punishment are in play
when determining what the appropriate response by the state to
any instance of wrongdoing should be. Arguably, some acts are
just so heinous and depraved that to punish them to the full
extent that they ex hypothesi deserve would be unacceptable for
other reasons. Similarly, some punishments may be illegitimate no
matter how expeditious or otherwise convenient they may turn out
to be. Many authors claim – and plausibly – that to kill people (as a
punishment) is intrinsically bad and politically unacceptable; of
course, if such deaths were deserved the situation would be less
awful than if they were undeserved – but, even if deserved, these
deaths may in the final analysis be unacceptable.
The bad reason behind the insularity in the work on different
aspects of punishment relates to the sort of anchylosed division
of labor which operates between the relevant disciplines: to
discuss issues of desert is, for social scientists, “just arm-chair
philosophizing;” to engage with the actual empirical data as to
who gets convicted, to what, and why, is, for philosophers and
other theorists, “too much social science,” and so on. In other
words, punishment theorists tend to think that they can operate
at a very high level of abstraction without thereby failing to
engage with importantly related aspects to this discussion. And
while it is true that some restriction in focus is not only
permissible but sometimes advisable, other times a narrow focus
is, well, too narrow.
But whether or not the discussion of the death penalty in the
United States, or of stoning in some Muslim nations, or of
caning in Singapore and Malaysia, or of (punitive) torture
Leo Zaibert 137
elsewhere or in other periods in history, transcend disciplinary

insularity, there is another form of punishment – indeed a much
more widespread form of punishment – regarding which the
disconnect between justifying punishment abstractly or specifically
described at the outset is glaring. This other form of punishment,
incarceration, is the best candidate for a universal punishment,
and is as deserving of special attention. To continue to mention
the United States as an example – since it is after all the case I
know best – the fact that it stands rather alone amongst post-
industrial Western nations in its embracing, both in abstract and
in practice, of death as a legitimate punishment, ought to be
complemented by the fact that the United States is also at the
forefront regarding the ease with which it imprisons people. As
a matter of fact, and of shame, according to United Nations’
statistics, the United States has the highest incarceration rate in
the whole world: 716 prisoners per 100,000 people.1 According
to the United States’ own official statistics for 2007, the total
number of people who were in one way or another “under
correctional supervision [i.e. in jail, or prison, or parole, or
probation]” was 7,076,200 – and the trend has been ascending
for the last several decades. 2 As Douglas Husak has sensibly
speculated, “probably no country – and certainly no democracy
– has ever incarcerated nearly so high a percentage of its
population [as the contemporary United States].”3 These figures
should suffice in showing that if there is a scandal in the United
States’ embrace of the death penalty, its embrace of incarceration as
the punishment of choice is not one bit less scandalous. But, to
repeat, my mentioning the United States is just meant as an
example: the essential point which concerns me here is that
incarceration has become, in effect, the punishment of choice,
1
See e.g., http://www.prisonstudies.org/info/worldbrief/wpb_stats.php?area=
all&category=wb_poprate (last accessed on 8. February 2013).
2
See e.g., http://www.albany.edu/sourcebook/pdf/t612010.pdf (last accessed
on 8. February 2013).
3
Douglas Husak, Seven Questions for a Theory of Criminalization, ms
in the author’s power. The views therein are further developed in Douglas
Husak, Overcriminalization, 2007, especially at p. 3 ff.
worldwide. The fact that the United States’ rate of incarceration

is so high serves me well as an illustration of what I take to be a
more or less universal phenomenon.
Incarceration as such sorely needs further scrutiny. That is,
as a specific way of reacting to wrongdoing, and in spite of the
fact that incarceration is generally taken to be civilized and
civilizing, it is, in fact, a very difficult form of punishment to
justify, as I shall argue below. The superficial view according to
which incarceration is perfectly legitimate may explain, in part
at least, why the widespread adoption of incarceration as the
punishment par excellence, may be perceived as less scandalous
than these phenomena really are. And it is precisely this
superficial view of incarceration that I wish to challenge here.
I think that part of the reason explaining this superficiality is
that incarceration, more than any other form of punishment
allows us to hide the fact that punishment is supposed to be
suffering-inducing. ‘Suffering’ is here understood broadly,
encompassing cases in which the punishee experiences pain,
deprivation, a diminished quality of life, or something else of
this nature, which presumably the punishee does not want to
experience. Whatever else can be contested about punishment,
the purely conceptual point that, in one way or another,
punishment is supposed to cause suffering (insofar as it is
supposed to be painful, unpleasant, undesired, etc.), seems to be
beyond dispute. This element is, after all, contained in pretty
much any definition of punishment on offer within the
specialized literature.4 But incarceration keeps this suffering far
from our gaze, thus rendering this particular form of punishment
appear more palatable to contemporary sensibilities.
4
See, e.g., Stanley Isaac Benn, An Approach to the Problems of Punishment,
in ‘Philosophy,’ 33 (1958), pp. 325–341; Antony Flew, The Justification of
Punishment, in ‘Philosophy: The Journal of the Royal Institute of Philosophy,’ 29
(1954), pp. 291–307; Herbert L.A. Hart, Punishment and Responsibility: Essays
in the Philosophy of Law, 1968, and Leo, Zaibert, Punishment and Retribution,
2006.
Leo Zaibert 139
Notice that I am not here denying the fact that sometimes

people can deserve to suffer,5 or that sometimes suffering can be
good.6 Even assuming that someone can deserve to suffer and
that there are cases in which making someone suffer, because
she so deserves, is actually good, one could still admit that
(deserved) suffering, taken in isolation, is somehow to be regretted.
How can something that is, ex hypothesi, good, be simultaneously
something to be regretted is an issue I cannot address here. Suffice
it to say that punishment is one of those moral phenomena
which is dilemmatic in the sense that while good in some ways,
it nonetheless has also some irreducible bad aspects. Famous
examples of this sort of phenomena are the well-known dirty
hand cases: cases in which people should feel guilty for doing
“the right thing.”7 And I have elsewhere argued that punishment
can be seen as an example of a dirty hands problem.8
Paradoxically, perhaps, the turn toward incarceration in turn
facilitates a certain superficiality in the philosophical approach
to this the most widespread form of punishment. For any
credible justification of punishment must contain, in one way or
another, a certain concession to retributivism, to the idea that
desert must play some role in the justification of punishment.
And yet, imprisonment, hiding as it does the suffering it
engenders, allows us to reconcile ourselves (as a society) with
5
Pace Derek Parfit, who flatly claims that “no one could ever deserve to
suffer.” See Derek Parfit, On What Matters, Vol. 1, 2011, p. 272. See also my
On the Matter of Suffering: Derek Parfit and the Possibility of Deserved
Punishment, ‘Criminal Law and Philosophy’, forthcoming.
6
The locus classicus for the view that suffering is necessarily bad is of
course Benthamite utilitarianism – see, e.g., Jeremy Bentham, The Works of
Jeremy Bentham, in John Bowring (ed.), The Works of Jeremy Bentham, 1995.
For a recent, far-reaching defense of this view see Victor Tadros, The Ends of
Harm, 2011. For criticisms of Tadros (and Bentham) see Leo Zaibert, The
Instruments of Abolition or Why Retributivism is the Only Real Justification
of Punishment, in ‘Law and Philosophy,’ 32.1 (2013), pp. 33–58.
7
See Michael Walzer, Political Action: The Problem of Dirty Hands, in
‘Philosophy and Public Affairs,’ 2.2 (1973), pp. 160–180.
8
See, e.g., Leo Zaibert, Punishment and Forgiveness, in Jesper Ryberg
and J. Angelo Corlett (eds.), Punishment and Ethics: New Perspectives, 2010,
pp. 92–110.
the infliction of suffering. Actually seeing an instance of caning

(something which for those of us not living in countries in which
caning is permissible, can easily do via the internet), for
example, is much more disturbing than seeing inmates behind
bars. The episode of caning, even if it lasts only a few minutes,
is much more upsetting and unsettling than prison terms, even if
the latter are sometimes very long, spanning many years, or
even the entire life of the inmates.
It is therefore difficult to resist the speculation that incarceration
plays a major role in the unbridled overcriminalization which
has taken contemporary societies by storm. A huge portion
of those subjected to correctional supervision have been
charged with committing non-violent, or victimless crimes.9 While
overcriminalization is not my direct focus here, challenging the
very practice of locking people up, can perhaps contribute to
challenging the tendencies toward overcriminalization. Of course
these tendencies are more pronounced in some countries than in
others, but the problem that concerns me remains pertinent
regardless of the jurisdiction under one’s purview. It is hard to
imagine that to have to witness actual blood gushing of a
punishee’s buttocks, to see his skin crackle and peel off with
each blow with the cane, for the “crime” of, say, consuming a
certain prohibited substance, will give rise to the same sort of
apathy, indolence, or indifference that incarceration for this very
same “crime” does tend to promote.
1. Justifying surveillance
We saw above the extraordinarily large number of people

who are subjected to different ways of state supervision. State
officials’ widespread usage of terms such as “surveillance,”
“supervision,” “correctional,” and the like, reveals the captivating
innocence with which these state officials unwittingly attest to
what I will argue is the main goal of contemporary overgrown
9
For more on victimless crime see, e.g., Markus Dubber, Victims in the
War on Crime, 2002 and Douglas Husak, Overcriminalization, 2007.
Leo Zaibert 141
criminal justice systems. After all, to surveil, to supervise, is not

necessarily to punish. While the stated goal of the criminal
justice system is to advance the traditionally advertised ends of
diminishing crime, or of realizing retributive justice, contemporary
criminal justice system is above all a means to flaunt state power.
Power is flaunted not so much in order to diminish crime per se
(although that would be a welcome side-effect), or to bring
about retributive justice (although that too can be seen as a side-
effect), but in order to preserve the status quo vis-à-vis the
power relations between the rulers and those they rule. The
intended, main goal of incarceration is the strengthening of the
position of the sovereign vis-à-vis the rest of the population; if
crime is reduced along the way, or if justice is served, this is but
a happy surplus. That this is indeed the main goal can be
highlighted if we consider how difficult it is to justify incarceration
along the traditional retributive or consequentialist lines.
On the one hand, it is not clear how retributivists can justify
incarceration. Retributivists would be rightfully concerned with
the fact that many, and arguably most, of the people incarcerated
are not getting what they deserve. This retributivist worry has
itself two parts: one having to do with the grotesque levels of
overcriminalization already mentioned, and another related to
analyses of comparative desert. Since I have already alluded to
the problem of overcriminalization above, I shall focus now on
the second problem. Even if we focus on cases in which not only
the punishment in abstract is justified but cases in which
imprisonment itself is justified, it seems obvious that no two
people experience the pains of imprisonment in exactly the same
way: a taller, burlier inmate would, ceteris paribus, suffer the
pains of imprisonment more severely than a short and thin
inmate (assuming their cells have identical dimensions, etc.); an
outdoorsy sort of person would, ceteris paribus, suffer the pains
of imprisonment more than a more sedentary person would, and
so on. 10 So, if we assume that these two offenders deserve
10
For more on the subjective variations in the way punishment is perceived
see, e.g., Adam J. Kolber, The Subjective Experience of Punishment, in
exactly the same punishment, the unavoidable fact that they are
not physically or psychically identical would cause them to not
actually receive the same punishment.
Further complicating matters for the retributivist is the fact
that attempts to fine-tune the terms of imprisonment to the specific
peculiarities of each offender are fraught with insurmountable
difficulties. Imagine having prison cells of different sizes, in
order to accommodate for the different shapes and heights of
potential offenders (or accommodating their varying psychological
proclivities and aversions, etc.), or having some sort of open-air
accommodations for sedentary offenders who may in fact like to
be indoors. Not only are the epistemological logistics necessary
to implement these proposals incredibly complicated (how do
we actually know how much harsher is the same room for
someone who is 20 pounds heavier, or two inches taller, than
someone else?), but they carry an inescapably high political cost.
This sort of proposal is too reminiscent of George Orwell’s Room
101, in Nineteen Eighty-Four.11 After all, while in Orwell’s novel
the room is a place in which government authorities seek to extract
information rather than to mete out deserved punishments, it is just
something like this room, properly channeled to achieve
retributive justice (or deterrence, etc.), that would be necessary in
order to avoid the problem of different subjectivities experiencing
prison differently. The prospect of this level of calibration strikes
me as too Orwellian, and as contradicting other political principles
who most of us hold dear.
On the other hand, consequentialists, and perhaps more
surprisingly, do not fare much better than retributivists when it
comes to the justification of incarceration. Modern prisons
rarely rehabilitate or reform – or deter. In fact, they tend to
produce the opposite result: some offenders actually learn, while
‘Columbia Law Review,’ 109 (2009), pp. 182–236. For illuminating reflections
on the inequality of allegedly “equal” punishments, see Fyodor Dostoevsky,
Memoirs from the House of the Dead, 2001, (I am grateful to Anna Schur for
this reference). See also Anna Schur, Wages of Evil: Dostoevsky and Punishment,
2012.
11
George Orwell, Nineteen Eighty-Four, 1984.
Leo Zaibert 143
in prison, how to offend more effectively in the future. High

recidivism rates in the United States would seem to offer ample
evidence of this fact.12 A similar argument may be deployed in
challenging the deterrent effect of imprisonment. This is quite
obviously visible in the case of “specific” deterrence (i.e.,
deterrence of the inmates themselves). Individual inmates can
hardly be said to have been deterred if after they are released
from prison they continue to engage in the same sort of behavior
which landed them in prison in the first place. And incarceration
also seems ineffectual regarding “general” deterrence (i.e.
deterrence of the general population) too, for it is not only
recidivist rates which tend to go higher year after year in the
United States, but crime rates in general as well.13
Since the traditional consequentialist justifications of
punishment, then, face these difficulties, it appears that it would
be incapacitation which would provide a justification for
incarceration. Yet, while incapacitation fares perhaps slightly
better than the other traditional justifications, it too fails to
provide a full, adequate justification of incarceration, for at least
three reasons. First, to the extent that inmates can still, while in
prison, engage in the behavior for which they were imprisoned,
then their alleged “incapacitation” is at best partial – for the
inmates are only incapacitated vis-à-vis a certain group of
people: the general population. Granted, the protected group is
large, but the unprotected group still contains millions of people
worldwide, as we saw above. Moreover, to the extent that the
vast majority of those in prison do not stay there for their whole
lives, and given the high recidivism rates just mentioned,
incapacitation seems elusive and transient indeed; at best, it is
partial and of limited success.
12
For official figures on recidivism see http://bjs.ojp.usdoj.gov/index.cfm?ty=
tp&tid=17 (last accessed on 22. February 2012).
13
For a recent year-to-year comparison see http://www.census.gov/
compendia/statab/cats/law_enforcement_courts_prisons/crimes_and_crime_rates.
html (last accessed on 22. February 2012).
Second, and insofar as many, if not most, of the crimes for

which people are sent to prison are victimless offenses, incapacitation
seems hard to understand. In other words, the idea of incapacitation
has been in this context inextricably linked to the idea of the
dangerousness of the criminal, and this dangerousness is in turn
linked to the idea of potential victims of the person to be
incapacitated. But if there are no victims to begin with, the very
notion of incapacitation begins to lose its meaning. Why does
society have the right to incapacitate you from doing something
which harms no one (but yourself)? Of course, this sort of
incapacitation is a major, paternalistic intrusion into people’s
private lives.
Third, and most importantly, the question as to whether
there are ways of incapacitating other than incarceration remains
unanswered. It would seem that particularly insofar as there are
other problems with incarceration, we should first make sure
that there are in fact no other ways of incapacitating people.
Otherwise, the case that there are reasons other than its elusive
moral justifiability which support the institution of incarceration
begins to gain in plausibility.
But, if incarceration cannot be quite justified by attending to
the traditional justifications of punishment, what is it that
endows incarceration with such universal commendation as the
ideal way of treating criminals? What exactly has created this
rather magical fungibility between time behind bars and whatever
behavior a society chooses to criminalize?
2. Sisyphean prisons?
A partial answer to these and related questions begins to

emerge if we take a look at the process through which incarceration
dethroned theatrical, gruesome executions as the punishment of
choice in modern societies, which Michel Foucault has so eloquently
documented. In what follows, my debt to some central tenets of
Michael Foucault’s Discipline and Punish should be obvious. 14
14
Michel Foucault, Discipline and Punish: The Birth of the Prison, 1977.
Leo Zaibert 145
Rather than repeat Foucault’s main arguments here, however, I

would like instead to further develop some apparently minor
points, and show that they are in fact important in our
understanding of a criminal justice system which is eminently
concerned with the displaying state power.
The first of these seemingly minor points is in fact raised by
Alan Sheridan, the translator of Discipline and Punish into
English, as he warns us about the difficulties involved in the
translation into English of the French verb “surveiller.” With
Foucault’s imprimatur, Sheridan famously translated “surveiller”
into “discipline.” To be sure, this decision has some bases, since
the options in English seem not to capture the full meaning of
surveiller. As Sheridan points out, even the closest verb in
English to “surveiller,” “to supervise,” is not quite a synonym.
Although a result of back-formation, however, the verb “to surveil”
does exist in English, and using it would perhaps have done
more justice to the substance of Foucault’s book. Had Foucault’s
book been translated as Surveil and Punish, its connection to the
discourse and practices of supervision, surveillance, and correction
so conspicuously pushed forth by state officials, and with which
we are so intimately familiar, would be much more conspicuous.
More conspicuous, too, would be the fact that the rituals of
elaborate spectacles of torture in public squares, the jurisprudence
of poetics (to paraphrase Foucault’s reading of Vico)15 gave way
not quite to a different form of punishment, but to a different form
of asserting power: the modern penitentiary. That is, when
Foucault argues that the theatricality of the old rituals was
substituted with a new mechanism whereby punishment effectively
became “the most hidden part of the penal process,” he just gets
things partly right. 16 The part Foucault does not consistently
expound has to do with the fact that in the modern penitentiary
punishment is not merely hidden – it is more or less extinguished.17
15
Ibid., p. 45.
16
Ibid., p. 9.
17
See Leo Zaibert, El derecho penal sin penas, in Manuel Cancio Meliá
and Carlos Gómez-Jara Díez (eds.), Derecho Penal del Enemigo, Vol. 2, 2006,
pp. 167–180.
Not without a hint of sarcasm, Foucault himself refers to the

era in which incarceration became the dominant response to
crime as “the age of sobriety in punishment.” 18 Almost
instantaneously, incarceration entered public imagination as the
most commonsensical and civilized form of punishment.
Incarceration has become so deeply entrenched in our minds that
when one informs beginning students, or people not particularly
interested or versed in issues of criminal justice, that the role
that incarceration played in pre-modern societies was very
different from the one it plays nowadays one is invariably met
with skepticism. That incarceration is the obvious state response
to crime is typically taken to be as natural as that the hands of
the clock move clockwise. Yet, there is nothing obvious or
natural about either of these phenomena.
Of course, the gruesome spectacle which pre-modern
executions constituted do strike us, and rightly so, as barbaric, or
at the very least as anachronistic. But, owing above all to the
fact that it is perceived to be the alternative to such barbaric
punishments, incarceration has received too much, and rather
facile and uncritical, support. To be sure, however, the relationship
between incarceration and, say, the guillotine (or even more
gruesome forms of punishing people) is not dichotomous: there
are many other options as to how to respond to crime. It is not
my goal here to recommend any alternative to incarceration, or
even to indicate what these alternatives are, and neither do I
wish to suggest that these are easy questions. I merely wish to
reflect on the unwarranted respectability which surrounds
incarceration as a form of punishment
Usually lost in the shuffle of the grand narrative whereby we
have lineally progressed from the sorts of cruel and theatrical
public punishments of the past toward the modern penitentiary
are the perilous aspects of incarceration, the insidious ways in
which incarceration in fact facilitates a certain indifference
towards clearly dysfunctional criminal justice systems. Gruesome
18
Michel Foucault, Discipline and Punish: The Birth of the Prison, 1977,
p. 14.
Leo Zaibert 147
as old executions undoubtedly were, by their very nature they were

not likely to be turned into an industrialized mass phenomenon;
there simply could not have been millions of quarterings, as we
have today millions of people incarcerated. Thus, what incarceration
lost in terms of theatrics it made up in terms of the sheer scope
of its application.
But not for being less gruesome than old forms of punishment is
incarceration necessarily any less effective. Foucault points out
that the effectiveness of incarceration flows from “its inevitability,
not from its visible intensity.”19 In the same breath, however,
Foucault, it seems to me, gets things exactly wrong, for he adds:
“it is the certainty of being punished and not the horrifying
spectacle of public punishment that must discourage crime.”20
This is wrong for at least two reasons. First, there is no necessity
so as to why public punishment should be less certain than the
hidden punishment meted out in the less bloody contemporary
criminal justice systems. In other words, it is not clear why the
transition from public to hidden, or from small to large-scale
adds anything in terms of the certainty concerning the likelihood
of this or that punishment actually being inflicted. More
importantly, however, is the fact that it is precisely in light of
Foucault’s central views elsewhere that it becomes clear that the
“effectiveness” of which we are talking about here is not tied to
diminishing crime in general. Rather, “effectiveness” here is tied
to asserting state power.
And Foucault’s commentators tend to uncritically follow
him in this infelicitous understanding of the effectiveness of
incarceration. Foucault’s often-quoted passage whereby by the
transition from theatrical executions to modern, mass-phenomenon
penitentiaries entails “not to punish less, but to punish better”21
needs to be better understood – both by Foucault and by his
commentators. Modern punishment is not better in the sense that
it deters or rehabilitates more or that it distributes desert more
19
Ibid., p. 10.
20
Ibid.
21
Ibid., p. 82.
efficiently or justy. It is better in the sense of strengthening the

sovereign’s position in regards to the citizens. That is, just as
Foucault argues, for example, that the point of using inmates for
labor is “not profit; nor even the formation of a useful skill,” he
should have been clearer in the above-quoted passage in that the
modern “use” of incarceration is, above all, to solidify a power
relation.
Just as in the case of prison labor is not quite labor but rather
“an empty economic form, a schema of individual submission and
of adjustment to a production apparatus.”22 sheer imprisonment
is not quite punishment but rather an empty ethical form, a
schema of individual submission and of adjustment to a criminal
justice apparatus. The emptiness in each of these cases, however,
is not innocuous; it is emptiness only with regards to some of
the stated goals of the system, but not in regards to the
overarching, unstated, and true goals of asserting state power.
It is clear, for example, that in the gruesome spectacles of
the past, or in the also gruesome spectacles of caning or stoning,
an important goal of the ordeal is to humiliate the criminal.
Presumably this humiliation will have deterrent effects – both in
the individual being beaten and in the general population who
will then know better what (not) to do in the future. But unless
one sees deterrence as the only way of justifying punishment –
certainly not a very attractive position – it is not clear why the
humiliation of the punishee ought to be seen as a necessary part
of punishment. I am not even sure that humiliation, specifically,
should be seen as a legitimate form of punishment. If a thought-
experiment were proposed whereby some wrongdoer could not
be made to suffer in any way other than via humiliation, I may
concede that the world may, all-things-considered, be a better
place if this wrongdoer is humiliated – but it is hard to imagine
what a credible thought experiment showing this would look
like. Prisons, or rather: the modern penitentiary system as a
whole, seems to effectively preserve an element of humiliation –
except that it is a form of humiliation that is insidious and harder
22
Ibid., p. 243.
Leo Zaibert 149
to detect than in other forms of punishment. It works backstage,

as it were: but it works.
Under this light it is also clear that, in spite of the high
recidivism and crime rates, modern prisons are not a failure; for
their main goal was not quite to fight crime (via rehabilitation
deterrence, etc.). Similarly, in spite of their obvious inability to
really give people what they deserve, modern prisons are not a
failure; for their main goal has never been to mete out just
deserts. Thus, modern prisons are not examples of Sisyphean
inabilities to curb criminality. The main goal of these modern
prisons can rather be profitably seen as an effort by the
sovereign to make it less and less likely that citizens would
subvert its power. Of course, none of this is to deny that some
people are genuinely guilty of having committed crimes can on
occasion be in fact justifiably (whatever the full justification of
punishment turns out to be) punished by modern criminal justice
systems. The above arguments do not even seek to deny that
incarceration as such, may be, in this or that case, justified. The
above arguments are meant as an indictment of the criminal
justice system as a whole, not of this or that specific operation of
the system. Just as a fundamentally fair institution can on
occasion yield unfair decisions, a fundamentally unfair institution
can on occasion yield fair decisions.
3. Judges and jailers: evanescing justice
One important consequence of the shift from punishment

as spectacle to “punishment” as the somewhat hidden mass
phenomenon which takes place in the modern prison is that
those officers of the modern state charged with imparting justice
in fact distance themselves more and more from the justice of
what actually happens to wrongdoers. As Foucault puts it,
“justice no longer takes public responsibility for the violence
that is bound with its practice.”23 The guardians of justice in fact
23
Ibid., p. 9.
sub-contract justice to the guardians of prisons, though, aided by

euphemistic and definitional games, they would of course deny
that they are sub-contracting justice. No participant in the web
of institutions and hierarchies that constitute the intricate maze
of modern systems of criminal justice can compare in agential
protagonism to the quick swing of the arm of the executioner
brandishing the cane, or the whip, or the one throwing a stone.
What is worse, sometimes modern criminal justice systems do
very little by way of inflicting punishments: incarceration as
such can often be seen as not a punishment at all, but rather as a
form of social control.
Here the connection alluded to above between the moral and
political frameworks, on the one hand, and the economic
framework on the other is useful for my purposes, at least as a
metaphor. For the mechanism through which justice (state
justice, that is) distances itself from the actual infliction of
punishment is the result of an exaggerated division of labor.
Thus, judges are said to “do justice” merely by sentencing
criminals to a given period of incarceration (whether or not this
period of incarceration would come to an end with the execution
of the criminal aside). The judge’s sentence, and nothing more,
is the punishment; whatever happens to the criminal during this
period of incarceration is, as a result of the definitional fiat
inscribed in this division of labor, simply not punishment.
To present but one example, consider the way in which
judges cavalierly, though not for that any less speciously,
distinguish between the judicial and the penitentiary, between
judges and jailers. Justice Clarence Thomas, as he concurred
with the majority opinion in regards to the ultimate judgment in
the famous Farmer v. Brennan case, stated: “judges and juries –
but not jailers – impose punishment. Punishment, from the time
of the Founding through the present day, has always meant a
fine, penalty, or confinement inflicted upon a person by the
authority of the law and the judgment and sentence of a court,
for some crime or offense committed by him.” 24 Farmer v.
24
Farmer v. Brennan, 511 U.S. 825 (1994), 839, internal quotation marks
deleted.
Leo Zaibert 151
Brennan had to do with the predictable abuses that a prisoner

had suffered while in prison (the defendant was a preoperative
transsexual person with feminine appearance, and who was
interned in a prison with male population). According to Justice
Thomas, what happened was simply not punishment.25
In a similar insensitive vein, Justice Thomas mockingly
dubbed the “Cruel and Unusual Punishment Clause” the “National
Code of Prison Regulation.”26 That is, for Justice Thomas, it is a
mistake to “contaminate” the purity of constitutional provisions
protecting citizens from governmental abuses with the miscellaneous
marginalia constituted by from whatever happens in that other
world, the world of the prison. Justice Thomas’ gambit, itself a
clear descendant of the substitution of the public execution for
the sanitized prison about which Foucault so eloquently speaks,
seeks to free the judges of any perceived responsibility whatsoever
from the actual suffering, and from the usually excessive suffering,
which alleged wrongdoers typically experience in our criminal
justice system.
As Foucault points out, this sort of move constitutes a
“bureaucratic concealment of the penalty itself.”27 As noted in
the previous section, it is not just concealment that the modern,
mass-phenomenon of imprisonment brings about – it also
eliminates the punishment as such. But, it must be admitted:
judges can, and in effect do, hide themselves behind the jailers.
All sorts of awful things happen to inmates in prison, many of
which were utterly predictable before they were sentenced,
and yet, judges, askance, can claim to have “nothing to do”
with this. The judges’ contrived detachment is a version of
what Foucault famously called the “Declaration of Carceral
Independence.”28 This is the thesis according to which “criminal
punishment is an arbitrary unity; that it must be broken down;
25
For a sustained criticism of views like Justice Thomas’, see Leo Zaibert,
Punishment and Retribution, 2006.
26
Farmer v. Brennan, 511 U.S. 825 (1994), 839.
27
Michel Foucault, Discipline and Punish: The Birth of the Prison, 1977,
p. 10.
28
Ibid., p. 247.
that the writers of the penal codes were correct in distinguishing

the legislative level (which classifies the acts and attributes
penalties to them) and the judicial level (which passes the
sentences); that the task today is to analyze in turn this later
judicial level; that one should distinguish in it what is properly
judicial (assess not so much acts as agents, measure the
intentionalities that give human acts so many different moralities,
and therefore rectify if it can the assessments of the legislator);
and to give autonomy to penitentiary judgment, which is
perhaps the most important; in relation to it the assessment of
the court is merely a way of pre-judging, for the morality of the
agent can be assessed only when put to the test. The judge,
therefore, requires in turn a compulsory and rectifying supervision
of his assessments; and this supervision is that provided by the
penitentiary prison.”29
Judges are supervised, that is, by jailers. This supervision, of
course, turns Justice Thomas’ gambit on its head: by artificially
restricting punishment to whatever the judge declares the
punishment to be, and by excluding the actual infliction of pain
and suffering from consideration, punishment is rendered bloodless,
emptied of much significance. Whereas Foucault thinks that
“very few jurists would dare to accept today [the principle of
carceral independence] without some hesitation,”30 this exaggerated
separation between the judicial and the penitentiary is in fact
accepted as a given in many quarters of modern life – let alone
by many contemporary jurists. It is thus not only Justice Thomas
or other jurists of similar persuasion, who constitutes the
evidence here; the very structure of criminal justice systems in
many jurisdictions is such that the administration of prisons
belongs to a wholly different branch of government. What judges
do, if Justice Thomas or the principle of carceral independence
were correct, is not to administer justice at all, but to engage in
ritualized word games.
29
Ibid. (internal quotation marks deleted).
30
Ibid.
Leo Zaibert 153
Judicial indifference regarding the very justice which this

branch of government is supposed to defend is facilitated by
incarceration’s status as an enlightened response to wrongdoing.
Surrounded by a halo of normative respectability, incarceration
effectively severs the connection between judges and jailers,
between the judicial and the penitentiary, and between wrongdoing
and our response to it. In so doing, incarceration also serves to
render the concepts of punishment and justice relatively hollow.
4. Conclusion
Surprisingly, it turns out that it is not at all easy to justify

the practice of incarcerating criminals. More surprisingly still,
perhaps, this does not entail that incarceration is ineffective. For
the true goal of modern incarceration is rather impervious to the
discussion of its moral defensibility. While the view whereby
incarceration is a means to curb criminality, or to mete out deserved
punishment is widespread, it is nonetheless, once analyzed in more
detail, shockingly unpersuasive. What emerges as a rather prominent,
albeit not sufficiently recognized, goal of incarceration is the
submission of the citizens to state power. In carrying out this goal,
incarceration appears to be highly effective. Whether this goal or
the hypocritical manoeuvers which keeps this goal hidden are
themselves morally defensible are questions I have not addressed
here. But I have suggested that to the extent that this goal
sometimes appear to eclipse other, more traditional, and more
ostensibly advertised goals of incarceration – those related to
justice – to that extent incarceration would be best seen, and in
spite of its universal status as the punishment of choice, as not a
form of punishment at all.
Bibliography
Benn, Stanley Isaac, An Approach to the Problems of Punishment, in ‘Philosophy,’

33 (1958), pp. 325–341.
Bentham, Jeremy, The Works of Jeremy Bentham, in John Bowring (ed.), The
Works of Jeremy Bentham, Thoemmes Press, Bristol, 1995.
Dostoevsky, Fyodor, Memoirs from the House of the Dead, Oxford University
Press, Oxford, 2001.
Dubber, Markus, Victims in the War on Crime, New York University Press,
New York, 2002.
Flew, Antony, The Justification of Punishment, in ‘Philosophy: The Journal
of the Royal Institute of Philosophy,’ 29 (1954), pp. 291–307.
Foucault, Michel, Discipline and Punish: The Birth of the Prison, Vintage
Books, New York, 1977.
Hart, Herbert L. A., Punishment and Responsibility: Essays in the Philosophy
of Law, Clarendon Press, Oxford, 1968.
Husak, Douglas, Overcriminalization, Cambridge University Press, Cambridge,
2007.
Kolber, Adam J., The Subjective Experience of Punishment, in ‘Columbia
Law Review,’ 109 (2009), pp. 182–236.
Orwell, George, Nineteen Eighty-Four, Clarendon Press, Oxford, 1984.
Parfit, Derek, On What Matters, Vol. 1, Oxford University Press, Oxford, 2011.
Schur, Anna, Wages of Evil: Dostoevsky and Punishment, Northwestern
University Press, Chicago, 2012.
Tadros, Victor, The Ends of Harm, Oxford University Press, Oxford, 2011.
Walzer, Michael, Political Action: The Problem of Dirty Hands, in ‘Philosophy
and Public Affairs,’ 2.2 (1973), pp. 160–180.
Zaibert, Leo, Punishment and Retribution, Ashgate, Aldershot, 2006.
— El derecho penal sin penas, in Manuel Cancio Meliá and Carlos Gómez-
Jara Díez (eds.), Derecho Penal del Enemigo, Vol. 2, Reus, Madrid,
2006, pp. 167–180.
— Punishment and Forgiveness, in Jesper Ryberg and J. Angelo Corlett (eds.),
Punishment and Ethics: New Perspectives, Palgrave/ Macmillan, New
York, 2010, pp. 92–110.
— The Instruments of Abolition or Why Retributivism Is the Only Real
Justification of Punishment, in ‘Law and Philosophy,’ 32.1 (2013), pp.
33–58.
— On the Matter of Suffering: Derek Parfit and the Possibility of Deserved
Punishment, in ‘Criminal Law and Philosophy,’ forthcoming.
Wojciech Żełaniec 155
Wojciech Żełaniec
Now You know —

The Educative Purpose of Punishment
I’ll return ye good fer evil

Much ez we frail mortils can.
James Russell Lowell, A Letter from Mr. Ezekiel Biglow,
from the Biglow Papers
Forgive them, for they know not what they do.

Luke, 23:34
1. Introduction
To make it clear right from the beginning: mine is not a

retributive conception of punishment, even though it may
sometimes look like one. It is about “returning good for evil,” to
speak with Lowell (which I shall explain later), not “evil for
evil.” The latter is pointless, in the best case; or else it caters for
our primal instinct of revenge. Nor is my educative function1 of
punishment (cf. May’s contribution to this volume) identical
with the redemptive one, on which most contributions in this
volume seem to converge. It is not, in general, as I readily admit,
“on a par” with any major, classical function of punishment. It is
propaedeutic, introductory, ground-preparing. 2 The criminal is
made to know first-hand, directly, not merely verbally or
conceptually, what she3 has done; this is the polar opposite of
1
Throughout this essay, I shall be using “function” interchangeably with
“purpose,” for stylistic variation and partly as a homage to the functionalist
school of legal philosophy in Bari, although I am aware that functions are not
identical with purposes.
2
For this reason, I should be more than happy to defer to Köck’s
proposal in this volume: “the preservation of the common good is the only
justification of punishment.” This may, however, involve getting those who
pose a threat to the common good to know what they are doing.
3
Inclusive language used throughout.
the idea of punishment offered by Franz Kafka in his short story

“In the Penal Colony.”4 What kind of conclusions she will draw
from this knowledge (repent? persist in error?) is left up to her ‒
or to the forces that drive her.
And, my conception is also a little Sci-Fi, which I no less
readily admit.
2. What use punishing?
But now to work. Let’s start off with this somewhat cynical-
sounding question: Why do we punish people? I mean this
question strictly teleologically: To what purpose do we punish
people? The second question is: Whatever the purpose, how
confident can we realistically be of achieving it? A rational
being, such as we flatter ourselves to be, even though she does
not do everything for a purpose,5 yet she at least feels, every
now and again, obliged to ask herself “To what end, actually, am
I doing this?”(whatever she happens to be doing) and “How
likely am I to achieve this purpose?” This is not a question about
the justification of punishment, because justifications can be,
and quite often are, non-teleological and, moreover, assigning
purposes to punishment may require further justification ‒ or
else, you can try to justify punishment by attributing to it various
purposes and (all but) fail: see Zaibert’s contribution to this
volume. An obvious answer to my seemingly cynical question
might be: “To restore justice,”6 but the appeal of this traditional
formula has somewhat faded over the past centuries, and we are
4
In der Strafkolonie. Various translations, the most recent one in Franz
Kafka, Kafka’s Selected Stories: New Translations, Backgrounds and Contexts,
Criticism, 2007, pp. 35–59.
5
But see Thomas Aquinas, Summa Theologiae, I-II, q. 1, a. 1. While
Anscombe concedes that human beings do not do literally everything for a
purpose, she explains why “For no particular purpose” could not be a typical
answer, still less the only answer, to the question “For what purpose are you
doing this?” (Gertrude E. M. Anscombe, Intention, 1958, p. 34, section 21.)
6
Which may, but need not, be the same as retribution, see Aristotle, NE,
1132a.
left with several less obvious ones. Mine is going to be: to

educate (but not re-educate!) the criminal.
Plato’s Socrates thought that punishment was a healing
therapy for a diseased (criminal) soul. 7 Rawls, by contrast,
considered “protecting good people from bad people” and, yes,
“redressing justice” as two basic purposes of punishment.8 Add to
this the deterrence function of the same. These four (re-education
of criminals, 9 keeping society safe from them 10 – the défence
sociale of the Latin countries – redressing justice, deterrence11) are
the basic functions of punishment as traditionally accepted and
recognised,12 though in the German Schrifttum13 you are sure to
find much more subtle distinctions and more functions, one of
which they call, quite interestingly, positive Generalprävention,
or asserting the validity of law in the citizen’s mind.14 But the
7
Gorgias, 477–479. See Piechowiak’s contribution to this volume.
8
John Rawls, Two Concepts of Rules, in ‘The Philosophical Review,’ 64
(1955), p. 5 ff. Rawls is working with a distinction which Bernard (in this
volume) seems to dwell on (section 2) under the title of “retributivism vs.
utilitarianism.” I am not sure, however, whether the restoration of justice is
identical with retribution. There is strong restorative aspect to justice,
counterbalancing in part its purely retributive overtones, see Pasculli’s
contribution to this volume, esp. section 3.
9
For a classical formulation see Gorgias, 525b. Sometimes also called
“reform” or “rehabilitation” of criminals, though these terms, as technical,
may have different undertones.
10
Often, if not always, linked with the “incapacitative” function of
punishment, i.e. that of making it impossible for the criminal to commit her
crime again. A radical “incapacitation” is, of course, capital punishment,
something of a literal and figurative “overkill” – Matthew H. Kramer, The
Ethics of Capital Punishment, 2011.
11
Add to this the expiatory function of punishment (Gerald Gardiner,
The Purposes of Criminal Punishment, in ‘The Modern Law Review,’ 21
(1958), pp. 117–129), rarely mentioned these days.
12
But cf. Albert W. Alschuler, The Changing Purposes of Criminal
Punishment: A Retrospective on the Past Century and some Thoughts about
the Next, in ‘The University of Chicago Law Review,’ 70 (2003), p. 1.
13
Scholarly literature. An impressive piece of such literature in the
domain of criminal law is Ernst-Joachim Lampe, Strafphilosophie: Studien
zur Strafgerechtigkeit, 1999.
14
See e.g. Karl Schumann, Positive Generalprävention, 1989, or Schünemann,
Bernd, Andrew von Hirsch and Nils Jareborg (eds.), Positive Generalprävention:
problem is that the institution of punishment, as it is actually

practised in most, if not all, contemporary societies, does not
serve any single one of these purposes exclusively nor an
assortment of them, albeit composed in a careful, reflected
way,15 nor is it meant to; but rather it seems intended to go some
slight way towards achieving all of these purposes ‒ while
failing actually to achieve any single one of them 16 ‒ and to
satisfy the popular “sense of justice” (that is, revenge instincts,
most of the time) into the bargain. An age-old tradition levies an
extremely heavy mortmain on us and our legal institutions. Or
perhaps, as Nietzsche supposed, we have a deeply rooted need
for cruel revenge with justificatory trappings.17
In Polish ‒ and certainly not just in Polish ‒ jurisprudence, it
is a firmly established principle that punishment should be
“distressful” (burdensome, painful, “unpleasant”): dolegliwy.
This is a very old, very deeply ingrained idea and no doubt
many would regard it as analytic and therefore not requiring any
justification. But then, life as such is generally distressful, so
what matters is to find the right way of making punishment
(within a given legal system) additionally distressful in the right
way and measure, so as to factor out the distress caused by life
as such. If the sole purpose of punishment were deterring
would-be criminals, the distressfulness of punishment would
Kritische Analysen im deutsch-englischen Dialog: Uppsala-Symposium 1996,

Müller, Heidelberg, 1998.
15
As observed by Nietzsche, On the Genealogy of Morals, Part II, s. 13.
16
Nothing Works, in Robert Martinson, What works? Questions and
Answers about Prison Reform, in ‘The Public Interest,’ 35 (1974), p. 48,
http://de.scribd.com/doc/58100576/MARTINSON-What-Works-Questions-
and-Answers-About-Prison-Reform; see also http://www.sagepub.com/upm-
data/36811_6.pdf, http://www.prisonpolicy.org/scans/rehab.html, but contra
http://www.aic.gov.au/media_library/conferences/hcpp/sarre.pdf (last accessed on
8. February 2015).
17
Cf. Nietzsche, The Wanderer and His Shadow (vol. II, p. II of Human,
All Too Human), s. 33. See, too, On the Genealogy of Morals, p. II. Cf.
Robert C. Solomon, Passion for Justice: Emotions and the Origins of the
Social contract, 1995, p. 40, and Leo Zaibert, Punishment and Revenge, in
‘Law and Philosophy,’ 25 (2006). See, too, Lorini’s contribution to this
volume.
have to be intense to the right degree and in the right way; it

would be the task of social psychology to determine just what
degree and what form of distressfulness is the “right”18 one with
respect to the various kinds of crimes and the social strata and
segments to which the individuals most likely to commit them
belong. (Such things change rather quickly, so frequent updating
would be necessary.) Presumably, members of different social
segments commit different crimes with different frequencies, but
on the other hand they have different sensitivities,19 so the right
means would have to be found to address these differences
properly. Possible punishments could then range from cruel public
executions (satisfying, concomitantly and as an unintended side
effect, let us hope, the public craving for retaliation) all the way
down merely to placing (by the respective authorities) newspaper
announcements to the effect that a Mr. X had done such-and-
such, thereby offending against norm so-and-so, full stop. All
concern about the proportion between the seriousness of the
crime and that of the punishment would have to be abandoned;
or at the very least become a secondary consideration; only the
effectiveness of the deterrence would matter ‒ which does not
mean that the most severe punishment would always have to be
threatened, let alone administered: this would, conceivably,
blunt sensitivities, make people callous and all the more prone to
crime. But there must be a scientifically determinable limit up to
which increasing the severity of the punishment does not have
this kind of counterproductive effect (Bentham, again, is a likely
source to draw upon here, as is, obviously, contemporary
18
The exact sense of this common word, as employed in the given
context, would have to be first carefully examined. Cf. Kevin M. Carlsmith,
John M. Darley and Paul H. Robinson, Why Do We Punish? Deterrence and
Just Deserts as Motives for Punishment, in ‘Journal of Personality and Social
Psychology,’ 83 (2003).
19
As noted already by Bentham: “It is further to be observed, that owing
to the different manners and degrees in which persons under different
circumstances are affected by the same exciting cause, a punishment which is
the same in name will not always either really produce, or even so much as
appear to others to produce, in two different persons, the same degree of
pain,” Rule 6 in Chapter XIV of his Principles of Morals and Legislation.
sociology). However, in the process of the research on what

deters whom from what and with what likelihood, it could
become evident that deterrence does not work effectively at all,
and should be dropped as the main, or indeed as the only,
function of punishment.20
But, as observed above, punishment as it actually exists is
not meant to deter chiefly, let alone exclusively. Punishment
serving a different function need not necessarily be “dolegliwy”
except as a side effect of discharging that function. Re-education
or reform or rehabilitation of criminals would no doubt be rather
burdensome, not less, by the way, for the re-educators than for
the criminals themselves, but this would just be a side effect.
Re-education is work on human beings, and all work is
burdensome in the post-lapsarian state of mankind. 21 Sweden,
reportedly,22 once sent a group of her juvenile delinquents on a
southern seas sailing tour to “straighten them out” ‒ well, in
case someone says “that was no real punishment,” this may not
always have seemed all that exciting, still less pleasant, as it
included a lot of routine chores and endless days of an oceanic
nowhere.23 So it was distressful, which, again, would have to be
factored in, even though the stress was (sort of) a side-effect.
Either you treat this side-effect as something undesirable, to be
20
Unless, of course, more effective methods of deterrence could be
found, such as, for instance, telling the population that for every convicted
criminal methods will be found, thanks to sophisticated technology of
present-day scientific psychology, to punish her in a way particularly
distressful precisely to her. The authorities would not really have to make
good on this threat in all cases; a critical mass of anecdotal evidence spread
amongst the population would be enough.
21
But only there. Before the Fall, Adam dug trenches (Gen., 2:15) all the
while enjoying his paradise life. See Aquinas, ST, I, q. 102 a. 3. One cannot
help thinking of Cesare Pavese’s poem book, Lavorare stanca, 1936.
22
E.g. http://ohaa-sa.com.au/wp-content/flashxml/mp3–player-fx/assets/
transcripts/Transcript-Anna%20Karin%20Fredin%20Bladh.pdf, p. 5 (last accessed
on 8. February 2015).
23
One is reminded of Ms. Deirdre Golash, The Case against Punishment:
Retribution, Crime Prevention, and the Law, 2005, and St. Augustine’s De
beatâ vitâ (PL, 32: 959‒976). Amato’s contribution to this volume is most
relevant here.
eliminated, or you suspect that it has a reformatory, re-educative

value in itself; which of the two is the correct attitude is a matter
for psychology or educational sciences, not for philosophy or
jurisprudence, to decide.
3. Punishment as education
Now I should like to propose that such “burdensome

instruction” can be made sense of as a kind of punishment. Or
perhaps, indeed rather, as a new purpose of punishment ‒ it
would certainly be too costly to start a new kind of punishment
serving just that purpose ‒ let’s call it the “educative” purpose.
I mean, the purpose of making the criminal see what it is like to
be a victim of her crime.24 But before I go any further, let me
explain a few points.
First-hand knowledge of what it is like to suffer certain
things is just that: first-hand knowledge. The difference is like
that between reading or hearing about, say, the Colossus of
Rhodes, and seeing it. The knower is not bound to act or behave
in any particular way after having acquired such knowledge. But
perhaps she will thenceforward avoid causing that kind of
distress to others, or even be anxious to make good for damage
done ‒ non ignara mali, miseris succurrere disco,25 with all the
more alacrity as the miseri are of her own making, and as she is
non ignara mali thanks to the punishment administered ‒ or
perhaps she will, by contrast, seek revenge on the society which
has inflicted on her this didactic stress, heedless or oblivious of
what that distress was meant to be: an explanation of what she had
previously inflicted on others. It would then be the task of
psychology and other empirical sciences to find out what a criminal
who had been enlightened through this form of punishment was
24
Which is not the same as, and yet kindred to, experiencing “fellow
[shared, identical] feelings” with those harmed by one’s crime à la Max
Scheler (Max Scheler, The Nature of Sympathy, 1954.)
25
Vergil, Aeneid, Bk. 1, 1.630.
most likely to do. But the criminal will, at least, know what she
has done, and she will be free ‒ so there is, indeed, some
freedom of action in human beings (but I presuppose that there
is a modicum thereof) ‒ to draw all kinds of cognitive and, in
addition, practical consequences from that knowledge. If there is,
by contrast, no freedom of action at all, then, well, the criminal
will have at least been subjected to the stimulus of having been
at both ends of her misdeeds. In every case, it would be of the
utmost importance to explain ‒ and not just go through the
motions of explaining ‒ to those that were to be punished that
they were going to experience exactly what they themselves had
made others experience.
“But that is clearly Utopian” you will say “as an exact tit-
for-tat can never be found, unless perhaps for Hammurabi-style
crimes, which you will not seriously be proposing to punish with
like-for-like.” No, I shall emphatically not, and putting out an
eye of someone who has put out an eye of someone else is
absolutely no part of my proposal, as I should like to stress once
again. Its essence is making criminals know what they have
done, 26 and in order to know what a stone is one need not
necessarily become one. “Yet there are certain things about
being a stone that you can find out only if you are one,” you
might reply. This is probably correct. Nicholas Rescher27 once
proposed that God became man (in Jesus Christ) only because
there are certain things about being a human being that you can
know only if you have had the experience of being human,28
26
Knowledge is always good, as we know from Brentano (Franz
Brentano, The Origin of our Knowledge of Right and Wrong, 1969, p. 22 ff.),
and so punishment as here conceived would be an act of Lowell’s “returning
good for evil.” (Though, amicus Brentano, as we know from St. Augustine,
De libero arbitrio, I.7.17, “Experiri […] non semper bonum est, sicut experiri
supplicia,” in Dom Mark Pontifex’s translation: “It is not always good to
have such experience; we can, for instance, experience punishment.”)
27
He did so in a conference talk delivered in February 1994 in Buffalo NY.
28
Thomas Nagel, What Is It Like to Be a Bat?, in ‘The Philosophical Review,’
83 (1974), is about something else. Cf. Peter Michael Stephan Hacker, Is There
Anything It Is Like to Be a Bat?, in ‘Philosophy,’ 77 (2002); http://info.sjc.ox.ac.
uk/scr/hacker/docs/To%20be%20a%20bat.pdf (last accessed on 8. February 2015).
your omniscience notwithstanding.29 But even God ‒ I am saying

“even” because the ontological gap between God, as usually
conceived, and man is infinitely greater than that between criminal
and victim ‒ did not remain man forever.30 Indeed, if, in the limit
case, a crime to be punished consisted in killing someone
painlessly and instantaneously, punishing it with the same would
clearly contradict the letter and spirit of my proposal.
But the essence of my proposal is not a tit-for-tat, if “tit-
for-tat” means “same-for-same.” It is rather “equivalent-for-
equivalent,” which is not the same as “tit-for-tat,” and the most
fundamental question is clearly what the basis of this equivalence
is. A slap in the face may cause much physical and moral
suffering in a person who is (i) physically sensitive and (ii) with
a lot of ideas about what it is to “lose one’s face” etc., but the
same slap (“the same” in the sense of the relevant physical
parameters, such as the acceleration and mass of the slapping hand)
may be just a fillip if administered to a thick-skinned and dull
person. Yet even the most thick-skinned and dull person will have a
pain threshold, albeit a much higher one, and so a form of
“embeddedness in life” to which some damage analogous to a
sensitive and refined person’s “losing one’s face” can be done.
4. Some examples and clarifications
To use a perhaps somewhat more illustrative example:

imagine a lady setting fire to her neighbour’s house. This means
property destruction, real estate destruction, and possibly, too,
the destruction of the neighbour’s home. In the latter case (that
of the neighbour losing her home), doubtless the most severe
and the most interesting one, it would be of the highest
epistemological value to the arsonist to be made to know first-
hand what it is like to lose one’s home, together with a
29
Strictly speaking, you become omniscient only if you have had that
experience.
30
He did not make himself quite man, to begin with (“yet without sin,”
Heb., 4:15).
significant part of one’s movable property in a fire. Procuring

her this sort of experience would be the perfect punishment in
the sense here proposed.
Now it is utterly important to realise that “this sort of
experience” would not, as it is conceived in my proposal,
necessarily have to be of long duration or veridical. How so?
Well, we sometimes indulge ‒ don’t we ‒ in the cruel joke of
telling a friend some terrifying (but entirely fictitious) piece of
news, such as (to think of a rather innocent example) “your bank
has just gone bust,” seeing her reaction and disabusing her
subsequently. For a few seconds, the friend experienced the
shock of having something terrible happen to her, and a shock
produced in this amateurish fashion is in itself terrible enough,
much to our callous and reprehensible amusement. To take a
realistic example from this writer’s own experience, no doubt
familiar to many parents: Seeming to see one’s child drowning and
not being able to come to the rescue or get anyone else to do so ‒
even if this is just an illusion (the child took a long dive, say, and
re-emerged where the parent was not expecting to see her). Similar
shocks can be induced in a much more professional way and for
longer, thanks to the rapid progress of the various materialist
theories of mind and empirical brain studies with their concomitant
technologies.31 Using such technologies,32 it should be possible to
generate, in any random human being, if not the perfect illusion of
a certain experience (as in Lem’s novel33) then at least that of its
relevant cognitive and emotional aspects. How exactly ‒ this is best
left to the biochemistry of the brain. The challenge for philosophy
and the humanities is to determine what those “relevant aspects”
are. And on this point, there is still a long way to go.
31
Anticipated by the Polish Sci-Fi writer Stanisław Lem in his novel The
Futurological Congress, 1974. Cf. Joris-Karl Huysmans, Against Nature,
1959. Apart from fiction, there is the formidable schizophrenia simulator
“Paved with Fear” developed by the the pharmaceutical company Janssen-
Cilag (thanks go to Ms. Wilhelmina Grych, Gdańsk, a schizophrenia recovery
support worker, for making me aware thereof).
32
See Stephen J. Morse and Adina L. Roskies, A Primer on Criminal
Law and Neuroscience, 2013.
33
See note 31.
To see this, let’s return to the example of the home being

burnt down. To punish the arsonist adequately, in my educative
sense, we should take into account, to begin with, not what the
burning actually meant to the home-owner (it might, for some
strange reason, have meant very little), but what the criminal
thought ‒ or, in case she thought next to nothing, what she
should have thought ‒ it meant to her victim.34 And obviously,
the arsonist did mean some harm to her victim.35 But what did
she think it was? The criminal need not have had any first-hand
experience of being a victim of a crime like arson, unless her
own home has once been set on fire or … she has already been
punished ‒ in my sense ‒ for a similar crime (in which case we
should say that in committing her crime she has drawn the
wrong conclusions from her experience). But typically, whilst
not knowing first-hand the kind of evil she is about to inflict, the
criminal is able to relate the evil that she thinks her victim is
about to suffer to evils she does know first-hand.
Granted, perhaps the criminal has never had a home, in the
middle-class sense of the word, but there is a wider sense of the
word, at the centre of which lies the notion that to be “at home”
is to be “with oneself” (German bei sich36), and this is part of
what it means to be free, as we know from Hegel. 37 So, an
adequate punishment (in the educative sense here proposed)
might well consist in depriving the criminal of the sense of
being bei sich, in whatever way she had previously enjoyed that
sense, whether in a middle-class home or being permanently “on
the road” Jack Kerouac style,38 which, again, implies restricting,
in some way, the criminal’s freedom.39
34
Or perhaps what she should have thought, but let’s keep things simple.
35
Unless, of course, the fire was an accident, not arson.
36
Or precisely “at home,” for an interplay of both translations of “bei
sich” see e.g. Robert R. Williams, Hegel’s Ethics of Recognition, 1997, p. 127.
37
Philosophy of Right, s. 7.
38
Jack Kerouac, On the Road, 1957.
39
Perhaps moving her quickly from one place of confinement to another
(or rather, causing by means of brain-chemistry an illusion to that effect)
would be an effective means to deprive her of the sense of being at home?
5. The main idea of the present proposal
The principal idea is that, while human lives are filled with
vastly different contents, they have largely analogous structures,
in virtue of which all the diverse elements of content can be
regarded as analogous counterparts, no matter how different
they may be. As we know from Pythagoras,40 some go to the
Olympic games to win an athlete’s glory, while others do so in
order to watch the games, and still others to make money. While
the purposes are all different, there is nevertheless a purpose,
and whatever helps one individual to achieve hers (say, making
a profit) is analogous to what helps another to achieve hers (say,
watching the games undisturbed). The harm done to the
individuals in question by thwarting them in achieving their
respective purposes is analogous, too. This is only one example,
and it need not mean that every human life has a purpose, still
less a sole purpose: it may be “living at random,” taking each
day as it comes ‒ I am saying, pace St. Augustine in his De vita
beata, what it can be, not what it ought to be ‒ or it may be
living for an artistic combination of an assortment of purposes
of which none (if taken singly) need be irreplaceable. But even
that is an organising principle of human life. A person living at
random and taking each day as it comes, not really caring
whether the next day comes or not and stoically resigned to her
fate can be punished (in the sense here proposed) for quickly
and painlessly killing another person (whom she, let’s suppose,
rightly assumed to have a purpose in life) by the experience of
overwhelming anxiety about, and during, each successive day,
making it effectively impossible for her to take it as it is ‒ plus
the experience of believing that this state of unabated rebellion
against one’s fate will continue forever.
Due to the progress in the Neurosciences, as I have already
explained, such experiences would not need be, for all their
vividness, veridical; the frustration (for the criminal in question)
of not being able to take each day as it comes, for instance,
40
D.L. 8.6.
would not really have to last forever; it would be enough if it

just lasted for a couple of days. The criminal would then know
first-hand what it was like to be thwarted in one’s basic life-
organising principle.
There are difficult cases, clearly. Take, for instance, the truly
despicable and heinous crime of rape. In the case of a man
raping a woman, there is, for obvious anatomical reasons (and,
perhaps more importantly, a great many concomitant psychological
reasons), no way of directly making him know what it must
have felt like. There are various sorts of bodily harm that can be
inflicted on a male human being,41 some of which may feel, in a
way, even worse than some cases of rape, but the point is
exactly that: whether they are not as bad or whether they are
even worse, they do not feel sufficiently like one another. Rape
is an invasion of bodily intimacy, generically speaking, but some
kinds of invasion of bodily intimacy may not be so dramatic
(throat examination with a tongue depressor, say), while that of
rape is utterly dramatic and heinous, not just because it is
painful, but because it affects the body parts most intimately
connected with some of the most profound experiences in
human life, and more importantly, in a woman’s, life. A man
does have analogous experiences, it is true, but they are just
remotely, perhaps too remotely, analogous to, not really “like,” a
woman’s (arguably, less profound and less intense), and thus
mimicking the experience of being raped by a vivid illusion of,
say, castration or some such thing, would probably miss the
target. This is a region where my method of finding, not “tit for tat”
but analogous for analogous, and thereby making punishment truly
universal, is, admittedly, approaching a limit . Unless, perhaps,
a brain-manipulation technology will one day make it possible
for a male rapist to feel, for some prolonged moments, like a
raped woman (Tiresias’ experience 42 turned inside out, as it
were). But this is, perhaps, looking too far ahead.
41
Cf. http://www.hrw.org/reports/2001/prison/report.html (last accessed on 8.
February 2015), but be advised that this is not for squeamish souls.
42
Ovid, Metamorphoses, 3, v. 320–331.
Other than the difficult cases, however, there are still other
problems with my educative purpose of punishment. Firstly, can
we actually manipulate the brain in such a way as to give the
convicts the corresponding illusion of what it would be like for
them to be a victim of a crime like theirs? We are all confessedly
hard-nosed materialists, of course, because that is what one has
to be these days, and firmly avow our faith in the mind=brain
dogma.43 But how sincere is that creed, really? Let us wait and
see what science is going to reveal over the next few decades.
Second, there is the afore-mentioned problem, best left to
philosophy and the humanities, of what is equivalent or
analogous to what, across individuals and lives. The indubitable
existence of such analogies, may their discovery require ever so
much acumen, makes for the universality of punishment as
conceived in this volume.
Thirdly, and perhaps most importantly, it may well be that in
many cases punishment as envisaged here would not prevent the
criminal from committing similar crimes in her after-punishment
life. Perhaps she will want to share her hard-won first-hand
knowledge with others? Whatever the motives, if there is any
degree of freedom to human action, no knowledge, however
first-hand, will ever guarantee that human beings will not act in
a certain way. And if there is no freedom, by contrast, then
knowledge, even the most suggestive first-hand knowledge is
just a conditioning factor among so many others ‒ again, the
resulting action will be a result of all of them.
However, as someone once said: You can punish a dog but
you can’t blame her. Punishment as serving what I have here
called the “educative purpose” is not meant to be instead of
blaming the criminal (whatever your views on human freedom
and responsibility), but as a way of making her see why she is
blamed; in the hope that this will, perhaps with no necessity, but
with reasonable likelihood, influence her future actions, regardless
of how free or otherwise her agency might turn out to be.
43
Or, at the very least, we refrain from openly challenging that dogma.
Bibliography
Alschuler, Albert W., The Changing Purposes of Criminal Punishment: A

Retrospective on the Past Century and Some Thoughts about the Next, in
‘The University of Chicago Law Review,’ 70 (1) (2003), pp. 1–22.
Anscombe, Gertrude E. M., Intention, Blackwell, Oxford, 1958.
Bentham, Jeremy, An Introduction to the Principles of Morals and Legislation
(1789), Clarendon Press, Oxford, 1907.
Brentano, Franz, (Roderick M. Chisholm (tr.)), The Origin of Our Knowledge
of Right and Wrong, Routledge & Kegan Paul, London, 1969.
Carlsmith, Kevin M., John M. Darley and Paul H. Robinson, Why Do We
Punish? Deterrence and Just Deserts as Motives for Punishment, in
‘Journal of Personality and Social Psychology,’ 83 (2003), pp. 284–299.
Gardiner, Gerald, The Purposes of Criminal Punishment, in ‘The Modern
Law Review,’ 21 (1958), pp. 117–129.
Golash, Deirdre, The Case against Punishment: Retribution, Crime Prevention,
and the Law, New York University Press, New York, 2005.
Hacker, Peter Michael Stephan, Is There Anything It Is Like to Be a Bat?, in
‘Philosophy,’ 77(300) (2002), pp. 157–174.
Hegel, Georg W.F., Grundlinien der Philosophie des Rechts oder Naturrecht
und Staatswissenschaft im Grundrisse, Nicolai, Berlin, 1821.
Huysmans, Joris-Karl, (Robert Baldick (tr.)), Against Nature, Penguin Books,
Baltimore, 1959.
Kafka, Franz, In the Penal Colony, in Franz Kafka, (Stanley Corngold et al.
(trs.)), Kafka’s Selected Stories: New Translations, Backgrounds and
Contexts, Criticism, Norton Critical Editions, New York, 2007, pp. 35–59.
Kerouac, Jack, On the Road, Viking Press, New York, 1957.
Kramer, Matthew H., The Ethics of Capital Punishment, Oxford University
Press, Oxford, 2011.
Lem, Stanisław, (Michael Kandel (tr.)), The Futurological Congress, The
Seabury Press, New York, 1974.
Lampe, Ernst-Joachim, Strafphilosophie: Studien zur Strafgerechtigkeit,
Heymanns, München, 1999.
Lowell, James Russell, A Letter from Mr. Ezekiel Biglow, in James Russell
Lowell, The Biglow Papers, The Boston Courier, Boston, 1846–1848.
Martinson, Robert, What Works? Questions and Answers about Prison Reform,
in ‘The Public Interest,’ 35 (1974), pp. 22–54.
Morse, Stephen J., Adina L. Roskies, A Primer on Criminal Law and Neuroscience,
Oxford vUniversity Press, Oxford, 2013.
Nagel, Thomas, What Is It like to Be a Bat?, in ‘The Philosophical Review,’
83 (1974), pp. 435–450.
Nietzsche, Friedrich W., Menschliches, Allzumenschliches: Ein Buch für freie
Geister, Verlag von Ernst Schmeitzner, Chemnitz, 1878.
— Zur Genealogie der Moral. Eine Streitschrift, Verlag von C.G. Naumann,
Leipzig, 1887.
Pavese, Cesare, Lavorare stanca, Solaria, Firenze, 1936.
Plato, Gorgias, in John Burnet (ed.), Platonis Opera, E. Typographeo

Clarendoniano, Oxford 1903 ff. (The Perseus Project, ed. by G. R.
Crane, http://www.perseus.tufts.edu ‒ last accessed on 8. February 2015).
Rawls, John, Two Concepts of Rules, in ‘The Philosophical Review,’ 64 (1955),
pp. 3–32.
Scheler, Max, (Peter Heath (tr.)), The Nature of Sympathy, Yale University
Press, New Haven, 1954.
Schumann, Karl, Positive Generalprävention, Müller, Heidelberg, 1989.
Schünemann, Bernd, Andrew von Hirsch and Nils Jareborg (eds.), Positive
Generalprävention: Kritische Analysen im deutsch-englischen Dialog:
Uppsala-Symposium 1996, Müller, Heidelberg, 1998.
Solomon, Robert C., Passion for Justice: Emotions and the Origins of the
Social Contract, Rowman & Littlefield, Lanham (Maryland), 1995.
Williams, Robert R., Hegel’s Ethics of Recognition, University of California
Press, Berkeley, 1997.
Zaibert, Leo, Punishment and Revenge, in ‘Law and Philosophy,’ 25 (2006),
pp. 81–118.
Diane Bernard 171
II.
UNIVERSAL JUSTICE
Diane Bernard 173
Diane Bernard
Claims to Universality,
an Obstacle to International Criminal Justice?
There is no established theory of crime or punishment in

international criminal law. A general rejection of impunity i.e. a
will to punish is proclaimed in the search for international peace, as
if punishing were the only option and an obvious reaction to mass
atrocities. This paper discusses such ‘obviousness’ by focusing on
the alleged ‘universality’ of international criminal law. My
hypothesis is that its alleged universality could constitute a
hindrance to the project of justice for mass atrocities.
International criminal law is here defined as the branch of
law dedicated to international crimes – genocide, crimes against
humanity, war crimes, and crimes of aggression, considered as
the “worse crimes.”1 This essay focuses more specifically on the
International Criminal Court (ICC, founded by the Rome
Statute), but references will also be made to national law and to
the International Criminal Tribunals for the former Yugoslavia
(ICTY) and Rwanda (ICTR).
My argument first focuses on the alleged universality of
international criminal law, but also on the resistance to this
overarching discourse (sub 1). I then challenge the “universalisability”
of the justifications for penalties by the ICTs and the ICC (sub 2).
1. A claim to universality
The view that the punishment of some crimes is universally
justified is explicitly stated in the concept of universal
jurisdiction (i), and implemented in the Statute of the ICC (ii). It
nevertheless is encountering growing opposition (iii).
1
A definition of international crimes is to be found in Antonio Cassese,
International Criminal Law, 2008, pp. 3–27.
(i) Unlike other principles of jurisdiction, universal jurisdiction

does not require any link to the locus delicti, the nationality of
the offender or victims, nor the interests of the State. It
transcends national sovereignty and the right of the accused to
be prosecuted before his “natural judge” because of “the interest
of the international community […].”2 The view that a community
of nations shares common values, to be collectively and singularly
protected, is not new.3 However, historically, the gravity of the
crime i.e. a breached value was not the foundation of universal
jurisdiction: it was due to fill the negative conflicts of jurisdiction
in cases where no State was directly called to prosecute (piracy on
the high seas, in particular).4 Therefore, the ratio legis of universal
jurisdiction has always been to prevent any crime from going
unpunished but, since the end of World War II, it has been
dedicated to “serious crimes.”5 Hostes humani generis are not
pirates any more, but perpetrators of heinous crimes, such as
genocide or war crimes. These crimes are “so grave” that they are
deemed to affect international peace and security, and even the
morals of an “international community.” 6 Thus, the principle of
universal jurisdiction enables each State to assert jurisdiction over
these crimes on behalf of the international community.7
(ii) The Statute of the ICC explicitly relies on universality. It
states that the gravest crimes “shock the conscience of humanity”8
2
M. Cherif Bassiouni, Universal Jurisdiction for International Crimes:
Historical Perspectives and Contemporary Practice, in ‘Virginia Journal of
International Law,’ 42 (2001), pp. 81–162, p. 96.
3
See Cesare Beccaria, Dei delitti e delle pene, 1965, p. 71.
4
Noora Arajärvi, Looking back from Nowhere: Is there a Future for
Universal Jurisdiction over International Crimes?, in ‘Tilburg Law Review,’
16 (2011), pp 5–29, p. 8.
5
The Princeton Principles on Universal Jurisdiction, Program in Law
and Public Affairs, 2001, Principle 1, p. 18.
6
Bruce Broomhall, Towards the Development of an Effective System of
Universal Jurisdiction for Crimes under International Law, in ‘New England
Law Review,’ 35 (2001), pp. 401–420, p. 402. Crimes against humanity holds
this very same idea in their wording.
7
Historical Perspectives and Contemporary Practice, in ‘Virginia Journal of
International Law,’ 42 (2001), p. 88.
8
In this regard, see also the Preamble of the Convention on the Prevention
and Punishment of the Crime of Genocide, 9 December 1948.
Diane Bernard 175
(al. 2) and “threaten the peace, security and well-being of the

world” (al. 3), being therefore “of concern to the international
community as a whole” (al. 4) “for the sake of present and future
generations” (al. 9).
Since the first expressions of international criminal justice,
universality has been at the heart of this project: Robert Jackson
already referred to “the common sense of mankind” in his opening
address to the Nuremberg trials.9 M. Cherif Bassiouni, chairman
of the drafting committee of the Rome Statute, defined the
establishment of the Court as embodying “certain fundamental values
and expectations shared by all peoples of the world.” 10 Antonio
Cassese, former president of the ICTY and the STL, and one of
the most distinguished experts in the field, referred to the
“fundamental dictates of humanity.”11
The universality of the ICC is technically implemented
through the definition of its territorial jurisdiction. The Court may
judge crimes committed on the territory of State Parties or by their
nationals (art. 12–2), but it may also intervene in situations deferred
to The Hague by the Security Council of the United Nations (art.
13–b). De jure, the Rome Statute therefore applies to the 122 State
Parties to the Rome Statute, but also to every member of the
United Nations.12 This makes is (potentially) quasi-universal.
(iii) Political issues strongly limit the ‘universality’ of
international criminal law.13 US resistance to its subversive potential
has sapped the Belgian Law on universal jurisdiction;14 the Spanish
9
Michael R. Marrus (ed.), The Nuremberg War Crimes Trial 1945–46:
a Documentary History, 1997, p. 80.
10
M. Cherif Bassiouni in Otto Triffterer (ed.), Commentary on the Rome
Statute of the International Court. Observers’ Notes, Article by Article, 2008,
p. XXVII.
11
Antonio Cassese, International Criminal Law, 2008, p. 18.
12
Robert Kolb and Damien Scalia, Droit international pénal, 2012, p. 276.
13
Dalila V. Hoover, Universal Jurisdiction not so Universal: a Time to
Delegate to the International Criminal Court, in ‘Cornell Law School Inter-
University Graduate Student Conference Papers,’ 52 (2011), pp. 14–19; for a
more general point of view, see Bruce Broomhall, International Justice and the
International Criminal Court. Between Sovereignty and the Rule of Law, 2004.
14
Antoine Bailleux, L'histoire de la loi belge de compétence universelle.
Une valse à trois temps: ouverture, étroitesse, modestie, in ‘Droit et société,’
59 (2005/1), p. 107–134.
courts have encountered similarly strong opposition.15 While, on

the one hand, States officially support the quest for justice and
the struggle against impunity for the “worse crimes,” on the
other, they do not want to give up their sovereignty, and risk
being publicly prosecuted, even through individuals, for their
military or political positions.
Moreover, opponents to the ICC present it as a pillar of
Western hegemony. The judiciary ritual and mechanism are part
of the Western tradition and could therefore be poorly trusted by
people used to other judicial customs. Based on economic and
socio-political arguments, this critique has been growing for the
last few years, in particular in East Africa. 16 Moreover, if
Western opinion seems to consider the Rome Statute as well
ratified, one could say that more than 50 percent of the
world’s population does not officially acknowledge it (the
United States, China, India, Pakistan, Russia, Ethiopia, Iran,
Egypt). This leads to the conclusion that universality is more a
claim and a vocation than an actual characteristic of international
criminal law.
2. The non “universalisability” of penal justifications
More theoretically, the universality of international criminal

law seems hard to maintain with regard to the justifications
brought to legal punishment.
Two main conceptions are traditionally opposed in the
justification of penalties: retributivism and utilitarianism. 17 In
general, both are partially confounded. And indeed, the International
15
Javier Chinchon Alvarez, Anàlisis formal y material de la reforma del
principio de jurisdicciòn universal en la legislaciòn española: de la ‘abrogaciòn
de facto’ a la ‘derogaciòn de iure,’ in ‘La ley,’13345 (2009).
16
See e.g. Stéphanie Maupas, La CPI, une justice de blancs, in ‘Le
Monde,’ 4 July 2013 ; or AFP, L’Union africaine dénonce la ‘chasse raciale’
opérée par la Cour pénale internationale, 27 mai 2013.
17
See Michel van de Kerchove, Sens et non-sens de la peine, 2009.
Diane Bernard 177
Tribunals have simultaneously implemented both: the ICTY

and the ICTR have consistently stated that the two main
functions of punishment are retribution and deterrence. 18 In
this view, punitur quia peccatur (the individual must be
punished because he broke the law), but also punitur ne
peccetur (he must be punished so that he and others will no
longer break the law). The ICC takes the same direction in
justifying its punitive action.19
These justifications cannot be fully applied on an “international
scale” either because they require an impossible consensus on
morals and politics, or because they appear as practically impossible
to implement. A brief analysis of retributivism (i) and the different
utilities of punishment considered by the literature (ii) can confirm
this scale discrepancy.
(i) In retributivism, also called deontic or non-consequentialist
justification, the penalty is a reaction to a crime already
committed.20 The perpetrator is punished because of the harm he
has inflicted. This vision is founded on an ideal or a value: the
criminal has to suffer for his crime because what he did was
wrong. No attention is drawn to the consequences of the sentence:
the first goal is to settle with the past. This justification already
appears in the Treaty of Versailles,21 and nothing appears in the
Nuremberg or Tokyo judgements about the utility or specific goal
18
ICTY, Zoran Kupreškic et al., IT-95–16, Judgement, 14 January
2000, § 848; or ICTY, Anto Furundźija, IT-95–17/1, Judgement, 10
December 1998, § 288; ICTY, Zlatko Aleksovski, IT-95–14/I, Judgement
(Appeal), 24 March 2000, § 185; ICTR, Jean Kambanda, IT-97–23-S,
Judgement, 4 September 1998, § 26; ICTR, Jean-P aul Akayesu, ICTR-96–
4, Sentence, 2 October 1998; ICTR, George Rutaganda, ICTR-96–3,
Judgement and Sentence, 6 December 1999, § 456.
19
See Damien Scalia, Du principe de légalité des peines en droit
internatinal pénal, 2011.
20
A.C. Berghuis, La prévention générale: limites et possibilités, in
Aglaia Tsitsoura (ed.), Les objectifs de la sanction pénale. En hommage à
Lucien Slachmuylder, 1989, p. 70.
21
Art. 227: “The Allied and Associated Powers publicly arraign William
II of Hohenzollern, formerly German Emperor, for a supreme offence against
international morality and the sanctity of treaties.”
of penalties: 22 it was all about retribution. 23 The reason why

perpetrators of the worst crimes are punished is to be found in their
breach of fundamental values, the harm they have inflicted on the
community.
There are major objections to retribution. First, retribution
requires a proportionality between the crime and its penalty, or
at least between the penalties themselves. However, it is
impossible to find a proportionality between a judgement and
mass murder or genocide, 24 or to compare it to “common
sentences” for “ordinary crimes:” damages caused by international
crimes are incommensurable; moreover, penalties for international
crimes do not follow a proportionate grid of severity. Second,
the idea of an absolute justice is illusory with regard to the
diversity of human nature and activity: claiming to define the
international justice seems morally dangerous and potentially
hegemonic, especially in times of conflict and delicate political
balances.25 This second objection directly refers to universality
as an obstacle to the legitimacy of international criminal justice.
(ii) Utilitarianism is also restricted by references to an
alleged universality. Deterrence is the ultimate rationale of
penalties. It may be specific (to prevent the offender from
recidivism) or general (as a general dissuasion addressed to all).
Specific deterrence is of little significance in international
22
See Michael R. Marrus (ed.), The Nuremberg War Crimes Trial 1945–46:
a Documentary History, 1997, p. 80.
23
Roelof Haveman, Supranational Expectations of a Punitive Approach,
in Roelof Haveman, Olaoluwa Olusanya (eds.), Sentencing and Sanctioning
in Supranational Criminal Law, 2006, pp. 66–69.
24
Frederik Harhoff, Sense and Sensibility in Sentencing – Taking Stock
of International Criminal Punishment, in Ola Engdahl and Pål Wrange (eds),
Law at War: the Law as It Was and the Law as It Should Be. Liber Amicorum
Ove Bring, 2008, p. 5.
25
Tzvetan Todorov, The Limitations of Justice, in ‘Journal of International
Criminal Justice,’ 2 (2004), p. 715; Alain Papaux, Développement durable, jus
cogens et justice internationale, in Christophe Eberhard (ed.), Droit, gouvernance
et développement durable: les nouveaux chemins de la responsabilité, 2008,
pp. 731–746. Or more generally, Hannah Arendt, La condition de l’homme
moderne, 1961, p. 271.
Diane Bernard 179
criminal law: the accused are very unlikely to get the opportunity
to commit genocide, war crimes, or crimes against humanity again.
General deterrence is considered as one of the two primary
justifications of international penal action.26 In the Preamble to the
Rome Statute, States declare themselves to be “determined to put
an end to impunity […] and thus to contribute to the prevention of
such crimes.” 27 The risk of judicial prosecution could indeed
discourage a few belligerents, even if it remains a low risk; 28
criminal trials could also prevent victims from seeking revenge by
committing crimes in return.29 It is, however, ethically difficult
to punish an individual in order to deter others: the ICTY itself
has admitted “that a sentence should in principle be imposed on
an offender for his culpable conduct – it may be unfair to impose
a sentence on an offender greater than is appropriate to that
conduct solely in the belief that it will deter others.”30 Moreover,
26
Roelof Haveman, Supranational Expectations of a Punitive Approach,
in Roelof Haveman, Olaoluwa Olusanya (eds.), Sentencing and Sanctioning
in Supranational Criminal Law, 2006, p. 147; M. Cherif Bassiouni, Etude
historique: 1919–1998, in CPI ratification et législation nationale d’application,
1999, p. 2: “les buts de la CPI incluent les objectifs suivants: établir une
justice exemplaire et rétributive, fournir réparation aux victimes, se rappeler
l’histoire, renforcer les valeurs sociales et la rectitude individuelle, éduquer
les générations présentes et à venir et – le plus important – décourager et
prévenir de futures déprédations humaines”.
27
StICC, Preamble, alinea 5.
28
See e.g. Pierre Hazan, La paix contre la justice? Comment reconstruire
un Etat avec des criminels de guerre, 2013, p. 10: “L’intrusion de la justice a
forcé les différents protagonistes à penser différemment la guerre et la
construction de la paix. Le risque judiciaire existe désormais pour les
belligérants. Il est faible, mais il n’est pas nul.”
29
Fourth annual Report of the International Tribunal for the Prosecution
of Persons Responsible for Serious Violations of International Humanitarian
Law Committed in the Territory of the Former Yugoslavia since 1991,
A/52/375 – S/1997/729, 18 September 1997, §§ 117–118; or Antonio Cassese,
Quelques réflexions sur la justice pénale internationale, in Emmanuela Fronza
and Stefano Manacorda (eds.), La justice pénale internationale dans les
décisions des tribunaux ad hoc, Etudes des Law clinics en droit pénal
international, 2003, pp. 284 et 289–290.
30
ICTY, Dragoljub Kunarac, IT-96–23, Judgement, 22 February 2001,
§ 840 (italics from the judges). A contrario, see ICTY, Tihomir Blaškić, IT-
95–14-T, Judgement, 3 March 2000, § 761.
apart from a few exceptions, “everybody knows that prevention

does not work, even if we hope it might one day. Everybody knows
but knowledge has no consequences.” 31 Three judges at the
European Court of Human Rights also stated that “the (general or
individual) preventive effect of sentences has long been the
subject of extensive studies and research, particularly of an
empirical nature. Such studies have concluded that this effect is
relative, if not limited.”32 Indeed, the ICTY did not prevent the
Srebrenica slaughter nor the 1999 drama in Kosovo,33 and neither
the decisions made by the ICTR nor the ICC Congolese cases seem
to have had any impact on the M23 or, more generally, on war in
the Eastern Democratic Republic of Congo. No impact on ongoing
conflicts is visible and, even so, deterrence could never be
measured (how could one evaluate an event that did not occur?).
Accused and convicted people, moreover, share no common
characteristics: historically and geographically, their crimes have
been committed within very different (sometimes competing)
groups, in the name of different (sometimes competing) ideologies.
For all these reasons, it seems inaccurate, or at least premature,
to allege that general deterrence could justify punishment. The
“utility” of punishment requires a common background shared
by all the convicted people, and a reception in all and every
conflict zone. In other words, universality is here requested ...
but absent.
31
Immi Tallgren, The Sensibility and Sense of International Criminal
Law, in ‘European Journal of International Law,’ 2002, pp. 561 and 590; in
the same sense, see Damien Vandermeersch, La mesure de la responsabilité
et de la peine, in Françoise Tulkens, Yves Cartuyvels and Christine Guillain
(eds.), La peine dans tous ses états. Hommage à Michel van de Kerchove,
2011, p. 152; Michel van de Kerchove, Le sens de la peine, 2009, pp. 205–
207; David Wippman, Atrocities, Deterrence, and the Limits of International
Justice, in ‘Fordham International Law Journal,’ 23 (1999–2000), p. 475.
32
EctHR, Gäfgen v. Allemagne, Requ. 22978/05, 1 June 2010, Joint
partly concurring opinions of judges Tulkens, Ziemele and Bianku, § 5.
33
See Danilo Zolo, Peace Through Criminal Law, in ‘Journal of
International Criminal Justice,’ 2 (2004), p. 732.
Diane Bernard 181
Reparation is a second utilitarian justification for punishment.

It consists of the idea that the perpetrator of a crime must pay
compensation (be punished) for the suffering or damage
caused.34 While deterrence aims for a better future, reparation
focuses on the present.35 Creating the ICTs, the Security Council
was “convinced” that those tribunals would “contribute to
ensuring that […] violations are […] effectively redressed;” the
Statutes did not concretise this, but several actions were taken to
allow for reparations.36 The Statute of the ICC better establishes
clear “principles relating to reparations to, in respect of, victims,
including restitution, compensation and rehabilitation.”37 However,
many concrete difficulties ruin these consequentialist expectations.
First, as previously stated, “the worst crimes” seem irreparable:
the damages are too serious. Second, it would be impossible to
hear and offer reparation to all victims – universality here
appears as an unattainable goal, almost a lie.
If neither deterrence nor reparation can be obtained, what
could be the utility of international trials? One hypothesis is that
international punishment may contribute to the strengthening of
values.38 This is known as the “social pedagogical function” of
penalties, mobilising a kind of immaterial consequentialism: the
criminal is punished “in order to” do something and not
“because of” something. Individual and collective representations
34
Michel van de Kerchove, Sens et non-sens de la peine, 2009, pp. 231–
233.
35
François Ost and Michel van de Kerchove, Le présent, horizon paradoxal
des sanctions réparatrices ?, in Loïc Cadiet, Marie-Jeanne Campana and
Soukaïna Bouraoui (eds), Philosophie du droit et droit économique. Quel
dialogue ? Mélanges en l’honneur de Gérard Farjat, 1999, pp. 477–492.
36
See Luc Walleyn, Victimes et témoins de crimes internationaux: du
droit à une protection au droit à la parole, in ‘Revue internationale de la
Croix Rouge,’ 845 (2002), p. 59; Victims’ compensation and participation,
Appendix to the Letter dated 2 November 2000 from the Secretary-G eneral
addressed to the President of the Security Council, S/2000/1063; Letter dated
14 December 2000 from the Secretary-G eneral addressed to the President of
the Security Council, S/2000/1198.
37
StICC, art. 75 and 79.
38
Jean-Pierre Brodeur, Sanction pénale et contre-impunité, in ‘Informations
sociales,’ 127 (2005), on cairn.info (last accessed on 8. March 2015).
are produced to revive the values that have been affronted by the
crime. This directly refers to Durkheim: “the essential function
of punishment is not to make the guilty expiate his crime
through suffering or to intimidate possible imitators through
threats, but to buttress those consciences which violations of a
rule can and must necessarily disturb in their faith.”39 Penalties
here appear as a way to express disapproval of crimes, and
therefore allow for memory and truth–criminal law is not about
punishing first and foremost, but about reinforcing law and order.
This last utilitarian function is questionable nevertheless: it
implies a social consensus (expressed by norms reinforced by
penalties), and so could consist of the imposition of a Western
moral code on the rest of the world. It leads to a narrative that
can hardly be described as universal; in other words, the same
censure here applies as against retributivism. Excluding universality,
that is, admitting a certain relativity, would certainly reinforce
this (potential) justification.
3. Conclusion
Struggling against impunity is the leitmotiv of international
criminal justice. However, no axiological discourse exists to
support this fundamental goal: all and every crime has to be
punished, but the choice for criminal law i.e. judicial punishment is
not fully explained. The ICTs and the ICC certainly aim at
contributing to peace, but without really clarifying the connection
between their decisions and reconciliation or political pacification.
Is criminal law the obvious answer to mass atrocities? In
Western countries maybe. However, there is no universal law,
not much universal jurisdiction, and most probably no universal
morals. Justifications of penalties do not pass the “universality
test.” Moreover, politics never stop demonstrating that one
judicial decision can be differently received and perceived,40 so
39
Emile Durkheim, L’éducation morale, 1963, p. 141.
40
See the recent demonstrations in Croatia and Serbia, following the
acquittement of their respective nationals by the ICTY.
Diane Bernard 183
that justice is certainly not universally recognised. In the sense,

Ricoeur incidentally writes that any true universality would
erase history, every person becoming a stranger to herself, 41
deprived of her own past, genealogy, and references.
International criminal law therefore entertains an “asymptotic”
connection with universality. The latter goal is pursued, but will
never be achieved, even if a progression can be operated ‒ it is a
utopian vocation. At the same time, this vocation often appears
as a claim: international criminal justice is presented as emanating
from “the community” or “mankind.” This phenomenon, of course,
reduces the impact of international decisions, as they do not
implement their “universal” claim.
Concretely, expressing more humility could certainly
reinforce the legitimacy of international criminal law.
International criminal justice may contribute to peace, but does
so within a whole set of political, humanitarian, and social
actions. Judgements therefore officially presenting punishment as
“one answer (among others) to this crime committed in this peculiar
situation” could also promote cooperation between judicial actors
and civil society; for example, the defendants of alternative
reactions to mass atrocities. A path may be found between the
call for justice expressed by the moral breach committed by
mass criminals and the absolute imposition of one kind of moral
and judicial answer.42 Then, universality could remain a utopian
dream, more than an obstacle to the legitimacy and credibility of
justice.
41
Paul Ricoeur, Sur la traduction, 2004, p. 18.
42
Tsvetan Todorov, The Limitations of Justice, in ‘Journal of International
Criminal Justice,’ 2 (2004), p. 715.
Bibliography
AFP, L’Union africaine dénonce la ‘chasse raciale’ opérée par la Cour pénale
internationale, 27 mai 2013.
Arajärvi, Noora, Looking back from Nowhere: Is there a Future for Universal
Jurisdiction over International Crimes?, in ‘Tilburg Law Review,” 16
(2011), pp 5–29.
Arendt, Hannah, La condition de l’homme moderne, Calmann-Lévy, Paris, 1961.
Bailleux, Antoine, L'histoire de la loi belge de compétence universelle. Une
valse à trois temps: ouverture, étroitesse, modestie, in ‘Droit et société,’
59 (2005/1), pp. 107–134.
M. Cherif Bassiouni and Bruce Broomhall (eds.), CPI ratification et législation
nationale d’application, (coll. Nouvelles Etudes Pénales), Érès, Paris, 1999.
Historical Perspectives and Contemporary Practice, in ‘Virginia Journal
of International Law,’ 42 (2001), pp. 81–162.
Beccaria, Cesare, Dei Delitti e Delle Pene, Franco Venturi (ed.), Einaudi,
Turin, 1965.
Berghuis, A.C., La prévention générale: limites et possibilités, in Aglaia
Tsitsoura (ed.), Les objectifs de la sanction pénale. En hommage à
Lucien Slachmuylder, Bruylant, Bruxelles, 1989, pp. 69–100.
Brodeur, Jean-Pierre, Sanction pénale et contre-impunité, in ‘Informations
sociales,’ 127 (2005), online.
Broomhall, Bruce, Towards the Development of an Effective System of Universal
Jurisdiction for Crimes under International Law, in ‘New England Law
Review,’ 35 (2001), pp. 401–420.
Broomhall, Bruce, International Justice and the International Criminal Court.
Between Sovereignty and the Rule of Law, Oxford University Press,
Oxford, 2004.
Cassese, Antonio, International Criminal Law, Oxford University Press,
Oxford, 2008.
Cassese, Antonio, Quelques réflexions sur la justice pénale internationale, in
Emmanuela Fronza and Stefano Manacorda (eds.), La justice pénale
internationale dans les décisions des tribunaux ad hoc. Etudes des Law
clinics en droit pénal international, Dalloz/ Giuffrè, Paris/ Milan, 2003.
Chinchon Alvarez, Javier, Anàlisis formal y material de la reforma del
principio de jurisdicciòn universal en la legislaciòn española: de la
‘abrogaciòn de facto’ a la ‘derogaciòn de iure,’ in ‘La ley,’13345 (2009).
Durkheim, Emile, L’éducation morale, PUF, Paris, 1963.
Harhoff, Frederik, Sense and Sensibility in Sentencing – Taking Stock of
International Criminal Punishment, in Ola Engdahl and Pål Wrange
(eds), Law at War: the Law as It Was and the Law as It Should Be. Liber
Amicorum Ove Bring, Nijhof, Leiden, 2008, pp. 121–140.
Haveman, Roelof, Supranational Expectations of a Punitive Approach, in
Haveman Roelof and Olusanya Olaoluwa (eds.), Sentencing and Sanctioning
in Supranational Criminal Law, Intersentia, Antwerp/ Oxford, 2006, pp.
66–69.
Diane Bernard 185
Hazan, Pierre, La paix contre la justice? Comment reconstruire un Etat avec

des criminels de guerre, GRIP/ André Versaille, Bruxelles, 2013.
Hoover, Dalila V., Universal Jurisdiction not so Universal: a Time to Delegate to
the International Criminal Court, in ‘Cornell Law School Inter-University
Graduate Student Conference Papers,’ 52 (2011), p. 32, online.
Kolb, Robert and Damien Scalia, Droit international pénal, Helbing, Basel,
2012.
Marrus, Michael R. (ed.), The Nuremberg War Crimes Trial 1945–46: a
Documentary History, Bedford Books, Boston, 1997.
Maupas, Stéphanie, La CPI, une justice de blancs, in ‘Le Monde,’ 4 July
2013.
Ost, François and Michel van de Kerchove, Le présent, horizon paradoxal
des sanctions réparatrices?, in Loïc Cadiet, Marie-Jeanne Campana and
Soukaïna Bouraoui (eds), Philosophie du droit et droit économique.
Quel dialogue? Mélanges en l’honneur de Gérard Farjat, Frison-Roche,
Paris, 1999, pp. 477–492.
Papaux, Alain, Développement durable, jus cogens et justice internationale,
in Christophe Eberhard (ed.), Droit, gouvernance et développement
durable: les nouveaux chemins de la responsabilité, FUSL/ Bruylant,
Bruxelles, 2008, pp. 731–746.
Ricoeur, Paul, Sur la traduction, Bayard, Paris, 2004.
Scalia Damien, Du principe de légalité des peines en droit international
pénal, Larcier, Bruxelles, 2011.
Tallgren, Immi, The Sensibility and Sense of International Criminal Law, in
‘European Journal of International Law,’ 13 (2002), pp. 561–595.
Todorov, Tzvetan, The Limitations of Justice, in ‘Journal of International
Criminal Justice,’ 2 (2004), pp. 711-715.
Triffterer, Otto (ed.), Commentary on the Rome Statute of the International
Court. Observers’ Notes, Article by Article, Beck/ Hart/ Nomos, Munich/
Oxford/ Baden-Baden, 2008.
van de Kerchove, Michel, Sens et non-sense de la peine, Publications des
Facultés universitaires Saint-Louis, Bruxelles, 2009.
Vandermeersch, Damien, La mesure de la responsabilité et de la peine, in
Françoise Tulkens, Yves Cartuyvels and Christine Guillain (eds.), La
peine dans tous ses états. Hommage à Michel van de Kerchove, Larcier,
Bruxelles, 2011, pp. 149-162.
Walleyn, Luc, Victimes et témoins de crimes internationaux: du droit à une
protection au droit à la parole, in ‘Revue internationale de la Croix
Rouge,’ 845 (2002), pp. 51-78.
Wippman, David, Atrocities, Deterrence, and the Limits of International
Justice, in ‘Fordham International Law Journal,’ 23 (1999–2000), pp.
473-488.
Zolo, Danilo, Peace Through Criminal Law, in ‘Journal of International Criminal
Justice,’ 2 (2004), pp. 727-734.
Hope Elizabeth May 187
Hope Elizabeth May
Virtue Jurisprudence and the Function of Pain

in International Criminal Law
Punishment is a kind of cure.

Aristotle, Nicomachean Ethics
The sea is the inexorable night into which the penal law casts its victims.
The sea is the measureless misery.
Victor Hugo, Les Misérables
The preamble to the Rome Statute of the International

Criminal Court explicitly mentions the need to punish “the
most serious crimes of concern to the international community
as a whole”1 and also expresses determination to contribute to
the prevention of such crimes by “put[ting] an end to
impunity for the[ir] perpetrators.” 2 These remarks strongly
suggest that punishment within the Rome Statute system serves a
deterrent or possibly even a retributive function. In this paper, I
argue against this conclusion and instead argue that an emerging
jurisprudential framework, virtue jurisprudence, best explains the
function of punishment within international criminal law – and
specifically within the Rome Statute system. Premised on the
Aristotelian view that human flourishing or eudaimonia is the
ultimate goal of human action, a virtue jurisprudential account of
criminal law likewise regards eudaimonia as the aim of
punishment.
In a virtue jurisprudential account of criminal law, the locus
of blame and inculpation is the capacity for practical reasoning
– that unique human capacity responsible for deliberation and
1
Rome Statute of the International Criminal Court, July 17, 1998,
pmbl., 2187 U.N.T.S. 90 (entered into force July 1, 2002).
2
Rome Statute of the International Criminal Court, July 17, 1998,
pmbl., 2187 U.N.T.S. 90 (entered into force July 1, 2002).
‘strategic planning’ about means and ends.3 On a virtue jurisprudential

view, criminal behaviour implies the pursuit of prohibited ends,
the use of prohibited means – or, in the worst case scenario, both.
This model, I shall show, illuminates blame and inculpation
within international criminal law. Indeed, the example of Nazi
Germany lucidly illustrates the most pernicious form of criminal
behaviour – the pursuit of prohibited ends with prohibited
means.4
As we shall see, punishment within international criminal
law is properly construed as a sort of medicine for the most
serious afflictions of practical reasoning. Indeed, the fact that
states belong to the international criminal justice system raises
the question of whether, notwithstanding the punishment of
individuals within this system, some sort of ‘medicine’ is also
given to the state. I answer in the affirmative and argue that
insofar as it helps to limn the permissible field of ends and
means on which practical reasoning can operate, punishment
functions as a sort of medicine not only for individuals, but also
for both organisations and states. Virtue jurisprudence – more
than any other theory – is able to explain what international
criminal law is about – namely, the administration of medicinal
punishment so as to trace the contours of legitimate ends and
means for humanity as a whole.
I shall begin by briefly discussing the concerns that motivate
virtue theory, the normative framework from which virtue
3
Kyron Huigens, Virtue and Inculpation, in ‘Harvard Law Review,’ 108
(1995), pp. 1423–1480.
4
One example from Nazi Germany which illustrates this worst case
scenario is Germany’s pursuit of a war of aggression or crime against peace
(prohibited end) which employed the use of slave labour in the armaments
factories (prohibited means). The London Charter, which set out the subject
matter of the International Military Tribunal at Nuremberg defined a war of
aggression or a war ‘in violation of international treaties, agreements or
assurances’ as an international crime. Further, the use of slave labour violates
Article 52 of the 1907 Hague Convention. See Trial of The Major War
Criminals Before The International Military Tribunal, Volume 1 (1947), p. 11 and
p. 243. Available at: http://www.loc.gov/rr/frd/Military_Law/pdf/NT_Vol-I.pdf
(last accessed on 22. February 2015).
jurisprudence derives. Then, after explaining why both the

deterrence and retribution theories of punishment are inadequate
to explain the function of punishment within international
criminal law, the virtue jurisprudential account of punishment is
introduced. I shall focus on the judgment of the International
Military Tribunal (IMT) at Nuremberg to illuminate this discussion.
As we shall see, the judgment of the IMT explicitly condemns
the ends and the means – the planning – that directed Germany
under National Socialism. I then turn to the Rome Statute
system of the International Criminal Court (ICC), the progeny of
Nuremberg, and will show that punishment within this system is
likewise concerned with condemning certain uses of practical
reasoning that involve complex planning and the coordination of
various actors. Each case and each prosecution is aimed not
simply at ending impunity, but also at promoting more healthy
displays of complex goal directed activity undertaken by
individuals, organisations and states.
1. International criminal law and the human good
The international community’s response to the horrors of

World War 2 poses a serious challenge to moral relativism and
its ilk. The atrocities committed by Nazi officials against
Germany’s own citizens crystallised the notion that a state must
refrain from murdering, enslaving and deporting its own people,
lest it commits international crimes defined as ‘crimes against
humanity.’ And although international law publicists as early as
1937 recognised the existence of norms binding on a state
irrespective of that states’ explicit consent to accept such norms
– so called jus cogens norms 5 – the horrors of World War 2
provided the impetus to articulate a normative framework in
which human rights and human dignity are sacrosanct. The
5
Alfred von Verdross, Forbidden Treaties in International Law: Comments
on Professor Garner's Report on ‘The Law of Treaties,’ in ‘The American
Journal of International Law,’ 31 (1937), pp. 571–577.
drafting and subsequent adoption of the Universal Declaration

of Human Rights by the U. N. General Assembly in 1948
normalised talk of human rights and human dignity and helped
to develop the idea that there is a set of moral obligations that all
states have towards their citizens.6
The normalisation of discourse about human rights and
human dignity is of course inconsistent with moral relativism
and any other moral theory that eschews the idea that there are
moral obligations that are binding on all peoples (and states).
But if moral obligations like ‘a state ought to refrain from
inhumane treatment’ and ‘a state ought to provide fair and public
hearings by independent and impartial criminal tribunals’ are not
merely rhetorical and are truly binding on all peoples, one needs
a theory which explains the objective grounds of these duties.
Divine Command Theory – which presumes that Divine Law
provides the objective ground of moral obligation is one approach
of course, but at least since the time of Plato, this theory has been
deemed inadequate7 and philosophers have subsequently pursued
the trenchant goal of formulating a plausible secular account of
objective morality.
2. Virtue theory & the aretaic turn
G. E. M. Anscombe’s famous 1958 paper, Modern Moral

Philosophy 8 argues that modern attempts to provide a secular
account of objective morality have, for the most part, been
misguided because they have failed to appreciate the fact that
the concept of moral obligation is actually derived from an
earlier paradigm that embraced ‘Divine Law’ – but has since
been discarded.9 The story of the ‘moral ought’ is one about “the
6
Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the
Universal Declaration of Human Rights, 2002.
7
Plato, (Benjamin Jowett (tr.)), Euthyphro, (380 B.C.E.)
8
G.E.M. Anscombe, Modern Moral Philosophy, in ‘Philosophy,’ 33
(1958), 1–19.
9
Ibid. at p. 6.
survival of a concept outside the framework of thought that

made it a really intelligible one.”10 A ‘Divine Law’ or ‘Divine
Command Theory’ conception of morality defines moral
behaviour as behaviour that conforms to God’s Law. What made
this theory intelligible was not only the putative objective
ground of The Divine, but also the fact that the ‘moral ought’
was wedded to the human good and human flourishing. Indeed,
the Divine Law approach presumes that God’s Law ought to be
obeyed unless one wants to suffer eternal damnation – which is
patently incompatible with the human good.11 But modern moral
philosophy has inherited a sort of ‘empty vessel’ insofar as the
‘moral ought’ has been severed from both the Divine and the
human Good.
Adding to the confusion is the additional fact that modern
moral philosophy has adopted the general approach of Divine
Command Theory in which moral behaviour is construed as
behaviour that conforms to some sort of law. Anscombe refers to
this approaches the “law conception of ethics.”12 Modern moral
philosophy, rather than looking to Divine Law as the standard to
which behaviour ought to conform, looks instead to special
kinds of ‘objectively true’ principles that should guide moral
behaviour (principles discovered by reason, principles whose
consequences lead to maximal welfare, etc.). Nevertheless,
absent from modern moral philosophy is a concern with the
human good. Modern moral philosophy attempts to make sense
of moral obligation by using an obsolete ‘law conception of
ethics’ independently of the human good and human flourishing
and this is precisely why it is doomed.
The project of providing a secular account of moral
obligation, claims Anscombe, can still proceed as long as we
return to Aristotle’s approach to morality – which predates the
Judeo-Christian framework from which the law conception of
ethics is derived. Grounding the objectivity of Aristotle’s
10
Ibid.
11
Ibid. at pp. 18–19.
12
Ibid. at p. 5.
approach is not a set of ‘divine laws’ but human nature and the
attainment of the good of that nature to which Aristotle refers as
eudaimonia. Indeed, it is the propensity of a behaviour to
promote eudaimonia which marks it as special and worth
performing, and so the dispositions responsible for such fortifying
behaviours are called virtues. Thus Anscombe, and others who
have been persuaded by her critique,13 have called for an ‘aretaic
turn’14 – essentially a return to Aristotle’s approach to ethics –
within modern moral philosophy.
3. Virtue jurisprudence: virtue theory applied to law
The return to Aristotle’s ethics – the so-called ‘aretaic turn’

– has also found adherents within legal philosophy. Scholars
working within this emerging area known as virtue jurisprudence
note that it is “a very old theory, rooted in Aristotle's conception
of ethics, politics, and the nature of law.” 15 Inspired by
Aristotle’s teleological approach to ethics and law, central to
virtue jurisprudence is human excellence or flourishing: “For
virtue jurisprudence, the final end of law is not to maximize
preference satisfaction or to protect some set of rights and
privileges: the final end of law is to promote human flourishing
– to enable humans to live excellent lives.”16
Now exactly what ‘human flourishing’ or eudaimonia consists
in is the subject of scholarly controversy and a full discussion of
this debate is beyond the scope of this paper. What is important
for now is simply to note that when applied to criminal law, this
‘forward looking’ approach illuminates the function of punishment
within international criminal law, as we shall see.
13
Alasdair MacIntyre’s After Virtue: A Study in Moral Theory, 1981,
further develops Anscombe’s insights found in her 1958 article.
14
The term ‘aretaic’ comes from the Ancient Greek areté which means
‘virtue.’
15
Colin Farrelly and Lawrence B. Solum (eds.), Virtue Jurisprudence,
2008, p. 1.
16
Ibid. at p. 2.
4. The need for a virtue jurisprudential account of punishment

in international criminal law
If the final end of the law is to promote human flourishing,

then how should we comprehend criminal punishment? The two
dominant accounts of the functions of punishment – the theory
of retribution and the theory of deterrence – forego discussions
of virtue, the human good and eudaimonia. Punishment as
retribution proceeds from a duty to the direct and indirect
victims of the crime insofar as punishment of the criminal is a
way of redressing the harms done to the victims. On the other
hand, utilitarian consequentialists regard punishment as providing
the social good of deterring future crimes. Kyron Huigens, a
scholar working within the framework of virtue jurisprudence,
puts the point well: “What people usually mean when they refer
to a retributive theory of punishment is a deontological theory of
punishment, in which a moral duty to take retribution justifies
punishment and similarly grounded moral duties are invoked
to explain the features of a punishment system. What people
usually mean when they refer to a deterrence theory of punishment
is a consequentialist theory of punishment, in which deterrence –
perhaps along with other beneficial consequences of punishment,
such as incapacitation or social catharsis – is assigned the role of
justification and invoked in explanations of a punishment
system’s features.”17
If Anscombe is correct about the shortcomings of modern
moral philosophy, are the traditional approaches to punishment
sound? After all, these approaches are derived from modern
philosophical theories that presume a law conception of ethics
that eschews the notion of human flourishing: retribution is
rooted in Kantian ethics, and deterrence is rooted in Utilitarian
ethics. Of course, we can adopt Anscombe’s general criticism
that any explanation that can be traced back to the ‘law
conception of ethics’ is problematic because it eschews the
17
Kyron Huigens, Homicide in Aretaic Terms, in ‘Buffalo Criminal Law
Review,’ 6 (2002), pp, 97–98.
fundamental question of the human good. But in addition to this

critique, there are other problems that reveal the fundamental
incompatibility between these traditional theories of punishment
and the normative framework underpinning international criminal
law.
5. The weakness of the deterrence model of punishment
Consider the framework of deterrence/consequentialism. If

the primary function of punishment is to realise the social good
of deterrence, this seems to violate Kant’s prohibition on using
individuals merely as means, rather than viewing them as ends
in themselves. 18 Treating an individual as a mere means is of
course inconsistent with recognising the person as worthy of
respect and dignity. But the deterrence theory of punishment
permits the use of persons – criminals in this case – as a means
to realise the social good of deterrence. And this is problematic,
because a theory that does not take into account human dignity
is inconsistent with international criminal law.
Theodor Meron has ably demonstrated that human rights
and humanitarian norms have been informing the development
of international law. 19 And it is easy to see how these norms
flow from the notion of human dignity. One example discussed
by Meron concerns the evolving law on reprisals.20 Traditionally,
reprisals permitted a state that was the victim of an illegal action
to retaliate with a similarly egregious harm. If during wartime,
state X targeted civilians in state Y (a violation of international
law), state Y could permissibly retaliate by targeting civilians in
state X. Such ‘harsh medicine’ can be understood as a means to
deter future crimes and hence as proceeding from the deterrence/
consequentialist theory of punishment. Today, however, the
18
See supra note 3, at p. 1435.
19
Theodor Meron, The Humanization of International Law, 2006.
20
Theodor Meron, The Humanization of Humanitarian Law, in ‘The
American Journal of International Law,’ 94 (2000), pp. 249–251.
scope of legitimate reprisals has narrowed dramatically – so

much so that “[m]odern treaties have thus reduced legitimate
reprisals to those against armed forces.”21 And, as Meron points
out, since the law of armed conflict of course recognises the
legal permissibility of attacks on combatants, then “hardly any
scope is left to a state that wishes to resort to reprisals.”22
The recognition of human dignity explains why the scope of
legitimate reprisals has diminished so significantly. The recognition
that something is deeply wrong with punishing someone for acts
for which s/he bears no direct responsibility explains both the
evolving law on reprisals and the move away from collective
models of punishment. Given that humanitarian norms and the
notion of human dignity are shaping international criminal law,
theories of punishment which are incompatible with human
dignity, such as the theory of deterrence, should not be used to
explain the function of punishment within this body of law.
6. The weakness of the retributive model of punishment
Also problematic is the deontological/retributive framework.

This framework fails to capture the fundamental fact that
criminal law – both domestic and international – embraces a
constellation of goods, some of which trump a victim’s/community’s
right to redress. Any framework in which goods are weighed
against each other requires an account of the deeper value that
is implicit in such weighing. When, in Victor Hugo’s Les
Misérables, the police capture Jean Valjean after he has stolen
Monseigneur Bienvenu’s silver, the Monseigneur lies when he
tells the police that the silver was a gift to Valjean. 23 Here,
Monseigneur Bienvenu weighs the good of truth-telling against
the good of Valjean’s soul and the reader understands that since
21
Ibid. at p. 249.
22
Ibid.
23
Victor Hugo, (Charles Wilbour (tr.)), Les Misérables, 1992, pp. 90–
92. Originally published in 1862.
it is the healing of humanity that is the deeper value guiding the

Monseigneur’s actions, he rightly chooses this deeper value over
the value of truth-telling.
Within criminal law we also find values weighed against
one another. Criminal justice sometimes yields to the value of
efficiency, which protects against the ‘waste of judicial resources.’
Sometimes, a case is not prosecuted, or the prosecution is not as
vigorous because of a plea bargain. This fact of criminal law
also requires an account of the underlying good that is behind
the weighing of interests. As Huigens puts it: “Without some
such conception of the greater good of society [the balancing of
interests] is incoherent. Without some comprehensive background
of value, common to both interests and within which each can
be given its full due, the choice between interests might be
nothing more than an arbitrary preference for one of two
incommensurable concerns.”24
Indeed, the Rome Statute system is replete with such weighing
and balancing. Article 53 of the Rome Statute empowers the
Prosecutor either to forego or suspend an investigation because
it is not ‘in the interests of justice’25 giving rise to the so-called
‘Peace versus Justice’ debate which pits the good of a criminal
prosecution against, for instance, the good of a peace agreement
conditioned on amnesty agreements to forego criminal prosecutions.
In addition to Article 53, Article 16 empowers the UN Security
Council, pursuant to its Chapter 7 ‘peace and security’ powers,
to defer a prosecution potentially indefinitely.26 And then there
is Article 26, which sets out the conditions for the activation or
‘entry into force’ of the statute. Article 26 is the flipside of that
familiar legal concept in Anglo-American law known as the
‘Statute of Limitations’ which establishes an ‘expiration date’
for legal actions.27 Statutes of limitations can be understood as
policies that protect one’s interest in ‘repose’ or peace of mind
24
See supra note 3 at pp. 1430–31.
25
See supra note 1 at art. 53.
26
Ibid. at art. 16.
27
Ibid. at art. 26.
such that after a certain time period has elapsed, concerns about
whether one will, for instance, become a victim of a lawsuit are
eliminated. Article 26 of the Rome Statute protects a similar
‘confidence and security’ value as it functions as a sort of
‘Statute of Initiations’ which determines the precise date at
which the harms begin to count for purposes of prosecution
within the Rome Statute system. 28 The actual entry-into-force
date of the Rome Statute is July 1, 2002 and so the harms
contemplated by the Rome Statute (genocide, torture, apartheid,
etc.) cannot be prosecuted within this system if they were
perpetrated prior to July 1, 2002. 29 Article 26 is yet another
example that demonstrates that the Rome Statute system embraces
values other than retribution: in this case the value of repose
outweighs the value of redress.
The retributive theory of punishment glosses over the
important fact that the Rome Statute system contemplates
interests other than the redress of harms. Indeed, the fact that the
interest in retribution can be weighed against and lose to other
interests (‘interests of justice,’ peace and security, confidence
and repose, etc.) reveals that there is an underlying good other
than retribution served by the Rome Statute system. Now, one
might object that the fact that the redress of harms yields to
other values does not show that the retributive theory of
punishment is inadequate vis-à-vis the Rome Statute system.
That is, one can consistently hold that punishment is always
retributive but that it will sometimes yield to other values. Still,
we need a theory to explain what the Rome Statute system is
about. And the fact that it exists as complementary to national
criminal justice systems suggests that it is about something other
than these systems.
Of course one may argue that this different thing does not
pertain to punishment and that punishment, no matter where it
28
Ibid. According this Article, the Rome Statute enters into force “on
the first day of the month after the 60th day following the date of the deposit
of the 60th instrument of ratification, acceptance, approval or accession with
the Secretary-General of the United Nations.”
29
Ibid.
occurs, is always retributive. I have two responses to this. First,

the fact that punishment in the Rome Statute system eschews
the death penalty is problematic for the retributive model of
punishment. No genocidaire – no matter how widespread the
slaughter – will receive the death penalty if prosecuted and
found guilty by the ICC (although such an individual could
receive the death penalty if prosecuted domestically). Defenders
of the retributive theory of punishment need to explain this fact.
Second, the retributive theory of punishment misconstrues
what international criminal law is about. Recalling our discussion
of Les Misérables, we saw that the ethic of Monseigneur Bienvenu
is one that contemplates the healing of humanity as the ultimate
object of value. This ethic is not endemic to romantic works of
fiction, but is in fact foundational to humanitarian law. Quoting
from Jean Pictet’s Commentary on the Fundamental Principles of
the Red Cross: “[J]ustice has many levels. From its origins in
primitive vengeance, it has passed through different stages of
law and of civilization, of time and place, to reach a point far
beyond simple legal justice and attain a very high level. On this
level, it takes on the qualities of understanding and forbearance;
it is not so much concerned with reckoning the responsibility of
men, their virtues and faults, but tends rather to become
equalitarian and in so doing to offer everyone the same chance
to seek a place in the sun. It is more interested in providing
people with what they need than it is with punishing them.”30
Pictet makes this point after raising the question of whether
justice or charity is more important to the Red Cross. Pictet
defines charity “not simply as the giving of alms” but as “altruistic
and disinterested love […] which calls for a certain degree of self-
control, a love which is extended even to our enemies.”31 The
30
Jean Pictet, Commentary on The Fundamental Principles of The Red
Cross (II), in ‘International Review of the Red Cross,’ 211 July-August
(1979), pp.193–194. Available at: http://www.loc.gov/rr/frd/Military_Law/
pdf/RC_Jul-Aug-1979.pdf (last accessed on 22. February 2015).
31
Jean Pictet, Commentary on the Fundamental Principles of The Red
Cross (I), in ‘International Review of the Red Cross,’ 211 May-June (1979),
value of charity explains why The Geneva Conventions impose

duties on belligerents to treat the wounded enemy humanely.
The above quotation reveals that Pictet finds the ‘charity or
justice’ question ill formed, since charity is, as he understands it,
a form of justice – albeit one “at a very high level.” In fact,
Pictet claims that, at this high level, “justice joins hands with
charity, and in so doing finds its own ultimate fulfilment.” 32
These remarks are found in Pictet’s commentary on the Principle
of Humanity, the essential principle of the Red Cross movement
and the core of humanitarian law:33 “[T]he principle of humanity,
from which all the other principles flow, obviously has to stand
in first place. As the basis of the institution, it provides at the
same time its ideal, its motivation and its objective. It is indeed
the prime mover for the whole movement, the spark which
ignites the powder, the line of force for all its action. If the Red
Cross were to have only one principle, it would be this one.”34
Humanitarian law is, of course, the product of the Red Cross
movement and the infusion of international law with humanitarian
norms has been well documented.35 Even if criminal justice did
at one point consist mainly of retribution, the law – at least
international humanitarian law, which is a subset of international
criminal law – has evolved past that point. We have already
noted that the Rome Statute system eschews the death penalty –
a marked difference from the Nuremberg Tribunals in which the
death penalty was used absent a right to appeal. The evolving
law on reprisals has also been discussed. Those who insist that
retribution best explains what international criminal justice is
about need to account for the erosion of retributive norms within
humanitarian law.
p. 144. Available at: http://www.loc.gov/rr/frd/Military_Law/pdf/RC_May-

Jun-1979.pdf (last accessed on 22. February 2015).
32
See supra n. 30 at pp. 193–194.
33
Ibid.
34
See supra n. 31 at pp.144–145.
35
See supra n. 19.
Now that the weaknesses of both the deterrence and retributive

models of punishment have been exposed, let us explore a virtue
jurisprudential account of criminal punishment more thoroughly.
7. Punishment and practical reasoning
Central to a virtue jurisprudential view of criminal law is the

accused’s decision-making capacity – i. e. the capacity for
practical reasoning. Practical reasoning is a unique human
capacity concerned with deliberation about ends and means. This
capacity, concerned with ‘strategic planning’ and goal-directed
behaviour, is distinct from the type of reasoning concerned with the
sort of conceptual analysis used in determining whether evidence
is sufficient to support some claim (a type of rational activity
referred to by some as ‘critical thinking’). Practical reasoning
and critical thinking are different analytical capacities. And just
as one’s capacity to engage in ‘critical thinking’ can be weak and
undeveloped, so too can one’s capacity for practical reasoning.
One’s capacity for goal-directed behaviour – one’s ‘teleological
capacity’ can be worrisome. One can not only have difficulty
setting goals, one can also have difficulty setting the correct
goals and using the correct means to realise them. Sometimes
this affliction of practical reasoning consists in the selecting of
ends and/or means that are criminal. Although in Victor Hugo’s
Les Misérables, Jean Valjean’s goal of feeding his sister’s
hungry children was of course permissible, the means by which
he set about to do so – breaking a bakery window in order to
steal bread – were illegal.36
On a virtue jurisprudential view, criminal acts are ones in
which seriously wrong ends and/or seriously wrong means are
36
To be sure, Hugo forces his reader to reflect on the relation between law
and morality and explicitly censures the criminal law for its destructiveness.
When he writes, for instance, ‘[t]he sea is the inexorable night into which the
penal law casts its victims. The sea is the measureless misery. The soul
drifting at sea may become a corpse. Who shall restore it to life?’ See supra
n. 23 at p. 83.
adopted. The adoption of seriously wrong ends and/or means is

symptomatic of a severe affliction of practical reasoning. It is
this defect – this affliction – which is the object of blame and
inculpation within the criminal justice system. Huigens writes:
“We blame and punish, ultimately, because each of us reasonably
demands that each of the others pursue his chosen ends with
a due regard for us – with a certain amount of maturity,
disinterestedness, and perspicacity. We blame and punish if we
find that quality of judgment lacking. It is not just harm, but the
lack of judgment that results in harm that the criminal law
condemns.”37
Identifying the primary disease as the adoption of seriously
wrongs ends and/or means, virtue jurisprudence looks to criminal
punishment as a means to correct, direct and steer the criminal’s
misguided use of his planning and deliberative capacities. Virtue
jurisprudence would regard Valjean’s punishment as a sort of
medicine or therapy which helps him to adopt more legitimate
(and ideally, virtuous) ends and means. Aristotle himself regarded
punishment in this way. In the Nicomachean Ethics he states that
punishment is a kind of cure that utilises the powers of contraries
to extinguish each other: “[I]f the virtues are concerned with
actions and passions, and every passion and every action is
accompanied by pleasure and pain, for this reason also virtue
will be concerned with pleasures and pains. This is indicated
also by the fact that punishment is inflicted by these means; for
it is a kind of cure, and it is the nature of cures to be effected by
contraries.”38
Here, Aristotle notes that malignant behaviours are the
product of improper pleasures. Pain, which is the contrary of
pleasure, helps to loosen the grip of these improper pleasures.
Presumably, the pain of punishment teaches by shifting attention
away from the diseased status quo to healthier passions. In so
doing, the pain of punishment helps to cultivate a more wholesome
‘affective profile.’ Indeed, criminal behaviour implies improper
37
See supra n. 3 at p. 1424.
38
Aristotle, (David Ross (tr.)), Nicomachean Ethics, 1104b, (1998, p 32.).
pleasures and punishment helps ‘break the spell’ of these wrong

pleasures. Thus criminal punishment is remedial and a form of
‘medicine’ insofar as it helps to cultivate the proper passions
constitutive of a more wholesome affective profile that helps
steer the criminal towards the human good.
8. The infection of organisations and states: the example of

Nazi Germany
An afflicted capacity for practical reasoning can, of course,

be suffered not only by individuals, but also by organisations
and states.39 True criminal acts are “committed by men, not by
abstract entities,” 40 but men can impose elaborate plans on
organisations and networks that utilise a chain-of-command
bureaucratic infrastructure. Sometimes, this has a beneficial
result. As Andrew Carnegie points out in Wealth, some men (and
here he is talking about businessmen) possess a “special
ability …. to conduct affairs upon a great scale.” He also points
out “[t]hat this talent for organisation and management is rare
among men is proved by the fact that it invariably secures for its
possessor enormous rewards.”41 What Carnegie overlooks is that
this rare ability for large scale organisation and management can
be afflicted if aimed at the wrong ends. In this way, an
individual’s afflicted capacity for practical reasoning can infect
organisations and the bureaucratic machinery of the state.
Organisations and the machinery of state can be used by ‘talented’
but infected individuals to pursue criminal ends, employ criminal
means, or in the worst case scenario, to do both.
39
The law of conspiracy might be said to criminalise the most serious
abuses of this capacity.
40
See supra n. 4 at p. 223.
41
Andrew Carnegie, Wealth, in ‘North American Review,’ 391 (1889), pp.
653–664. Available at: http://ebooks.library.cornell.edu/cgi/t/text/pageviewer-
idx?c=nora;cc=nora;rgn=full%20text;idno=nora0148–6;didno=nora0148–6;view
=image;seq=0661;node=nora0148–6%3A1 (last accessed on 22. February 2015)
Adolf Hitler’s implementation of National Socialism is an

example of the worst case scenario in which practical reasoning
uses the machinery of state to pursue (internationally) criminal
ends with (internationally) criminal means. Indeed, the example
of Hitler’s Germany shows that massive harm can result when
an individual with an afflicted capacity for practical reasoning
has bureaucratic machinery at his disposal. And when this
occurs, the result can be the commission of the most serious
crimes of concern to the international community.
The judgment of the International Military Tribunal at
Nuremberg (IMT) contains numerous references to the criminal
ends and means constitutive of National Socialism in post-
Weimar Germany. For instance, the main purpose of National
Socialism was “to destroy the democratic structure of the
Weimar Republic, and to substitute for it a National Socialist
totalitarian regime […]” 42 The judgment later adds: “For its
achievement, two things were deemed to be essential: the
disruption of the European order as it had existed since the
Treaty of Versailles, and the creation of a Greater Germany
beyond the frontiers of 1914. This necessarily involved the
seizure of foreign territories. War was seen to be inevitable, or at
the very least, highly probable, if these purposes were to be
accomplished. The German people, therefore, with all their
resources, were to be organised as a great political-military army,
schooled to obey without question any policy decreed by the
State.”43
Thus aggressive war – an international crime – became the
penultimate aim by which the totalitarian regime was to be
realised. In fact, the ‘conspiracy and common plan’ to wage
aggressive war or commit ‘crimes against peace’ appeared as the
first count of the indictment. Further, the IMT explicitly
identified the internationally criminal end of aggressive war as
containing all the other evils perpetrated via the mechanism of
National Socialism: “To initiate a war of aggression, therefore,
42
43
Ibid. at p. 187.
is not only an international crime; it is the supreme international

crime differing only from other war crimes in that it contains
within itself the accumulated evil of the whole.”44
The notion that aggressive war is pregnant with “the
accumulated evil of the whole” is an acknowledgement that the
other evils perpetrated by National Socialism – forced labour,
genocide, deportation, etc., were committed in pursuit of this
criminal end of aggressive war. And men were part of this
machinery: “Hitler could not make aggressive war by himself.
He had to have the co-operation of statesmen, military leaders,
diplomats, and business men.”45 The National Socialist German
Workers Party was itself identified as a core component of the
criminal means for carrying out criminal objective: The Party is
spoken of as “the instrument of cohesion among the defendants”
for carrying out the purposes of the conspiracy – the overthrowing
of the Treaty of Versailles, acquiring territory lost by Germany
in the last war and “Lebensraum” in Europe, by the use, if
necessary, of armed force, of aggressive war. The “seizure of
power” by the Nazis, the use of terror, the destruction of trade
unions, the attack on Christian teaching and on Churches, the
persecution of Jews, the regimentation of youth – all these are
said to be steps deliberately taken to carry out the common
plan.46
Nuremberg was a watershed, not only because it established
individual criminal liability at the international level, but also
because by explicitly identifying the criminal ends and means
that comprised the common plan, it delineated the limits on how
the bureaucratic machinery of the state and of organisations
(including private businesses) could be used. The imposition of
individual criminal liability for participation in this common
plan is an acknowledgement that it was afflicted men that
infected the machinery of the state. The remark that “[c]rimes
44
Ibid. at p. 186.
45
Ibid. at p. 224.
46
Ibid.
against International Law are committed by men, not by abstract

entities”47 makes this point most effectively.
Now, one dimension of international criminal punishment
concerns the accused individual. The articulation and clarification
of the domain of ends and means that are condemned by
international law has a remedial, educative function for the
accused’s capacity for practical reasoning. To be sure, those
defendants at Nuremberg who were sentenced to death were
denied the supposed benefit of an improved capacity for
practical reasoning. Even though the IMT was able to ‘loosen
the grip’ of the contaminated passions driving such men, they
were denied the opportunity to develop a more wholesome
affective profile. Yet, one notable case concerns party architect
Albert Speer, who used his 20 year prison sentence to engage in
soul searching and write a deeply personal memoir in which he
admits that he was morally responsible for the crimes committed
by the Third Reich.48 This admission suggests that the prosecution
helped Speer to appreciate the illegality of the ends and means
that he adopted, thereby helping him to develop a more wholesome
affective profile.
Another dimension of the educative, remedial effect of
international criminal punishment concerns humanity as a whole.
Nuremberg began the process of limning the permissible scope
of practical reason, that is, of making explicit the domain of
ends and means that decision making – at either the individual or
the organisational level – cannot touch. Nuremberg demonstrates
that there are certain ends and means that are categorically
prohibited by international law. By naming, labelling and
categorising countless instances of internationally criminal ends
and means, Nuremberg has helped to delineate the permissible
field on which practical reasoning can operate. In this way,
international criminal law improves the capacity of practical
reasoning in general, so that the practical reasoning ‘capital’ of
mankind is fortified and better equipped to realise the human
47
Ibid. at p. 223.
48
Albert Speer, Inside the Third Reich, 1997.
good. Put another way, in naming the ends and means that are
categorically prohibited – even for states – the Rome Statute
system helps to improve the affective profile of humanity as a
whole.
9. Virtue jurisprudence, punishment and the Rome Statute

system
How does virtue jurisprudence explain punishment within

the Rome Statute system? The Rome Statute system eschews the
death penalty, as mentioned earlier. If found guilty, the accused
serves a prison term and perhaps pays reparations to the victims.
Unlike Nuremberg, in which the accused included organisations
such as the Gestapo and the Reich Cabinet, only individuals are
prosecuted by the ICC. Thus far, only one individual, Thomas
Lubanga Dyilo, has been convicted by the ICC, and sentenced to
14 years in prison. It remains to be seen whether his conviction
affects him as profoundly as it affected Speer. But apart from
this individual dimension, Lubanga’s prosecution is also a
moment of education for humanity. Just as the Nuremberg
prosecutions had an educative function of tracing the domain of
permissible ends and means within which practical reason can
operate, so too do prosecutions within the Rome Statute system.
The lesson learnt from the Lubanga case was that the enlisting
and conscripting of children under the age of 15 is categorically
prohibited by international criminal law and therefore can
neither be a legitimate end nor a legitimate means.
When we examine the thresholds for prosecution at the ICC,
it becomes even more clear that the “most serious crimes of
concern” to the international community are those which evince
a sophisticated display of practical reasoning – albeit one using
criminal ends and means. This is clearest in the case of Crimes
Against Humanity which require such crimes to be committed as
part of a “widespread or systematic attack directed against any
civilian population.”49 The Elements of Crimes further specify
49
that “an attack directed against any civilian population” refers to

“a course of conduct involving the multiple commission of acts
[…]. against any civilian population, pursuant to or in furtherance
of a State or organisational policy to commit such attack.” 50
Thus only a widespread or systematic attack on civilians that
stems from a state or organisational policy counts as a Crime
Against Humanity within the Rome Statute system.
War Crimes also must comprise some larger plan. War
crimes are acts that “are committed as part of a plan or policy or
as part of a large-scale commission of such crimes.”51 Although
the crime of genocide does not include the plan or policy
threshold, the elements of this crime do require the demonstration
that “the conduct took place in the context of a manifest
pattern.”52 The fact that prohibition of the crime of genocide has
been recognised as a jus cogens norm helps to explain why this
crime omits the ‘policy or plan’ requirement. But a pattern is
circumstantial evidence for a plan or policy. So the ‘manifest
pattern’ requirement for the crime of genocide can be understood
as a way of obliquely referring to a policy or plan.
Clearly, the Rome Statute definitions of Crimes Against
Humanity, War Crimes and Genocide single out practical reasoning
that is developed enough to use planning and policies to commit
certain crimes. Thus we can and should regard punishment
within the Rome Statute system as aimed at inculpating the
pernicious use of this ‘talent’ for organisation and management.
One objection to this account concerns the unique theory of
liability that the ICC adopts. Liability for participation in a
common plan is complex in international criminal law and there
are numerous approaches to this type of liability. For instance,
the theory of ‘Joint Criminal Enterprise’ (JCE), which was
50
Assembly of States Parties to the Rome Statute of the Int’l Criminal
Court, Elements of Crimes, art. 7, ¶ 3, ICC-ASP/1/3 (part II-B) (Sept. 9,
2002). Available at: http://www.icc-cpi.int/en_menus/icc/legal%20texts%20
and%20tools/official%20journal/Pages/elements%20of%20crimes.aspx (last
accessed on 22. February 2015).
51
52
Supra note 50.
developed by the International Criminal Tribunal for the Former

Yugoslavia (ICTY), has a number of permutations. 53 JCE can
impose liability on individuals for the foreseeable (yet unintended)
crimes arising out of the intentional pursuit of the original
design, regardless of the level of participation of the individual;
and its broad approach makes it controversial. 54 On the other
hand, the ICC approach requires a tighter connection between
the accused’s actions and the common plan, such that the accused
had control over the crime to which the accused’s actions were
essential.55
One could argue that because the ICTY applies such ‘strong
medicine,’ it, rather than the ICC, is truly concerned with
eradicating pernicious forms of practical reasoning. Since the
ICC rejects the theory of JCE, and adopts a somewhat narrower
liability theory for participation in a common plan, one might
conclude that the ICC is concerned not with practical reasoning,
but with something else. My response is twofold. First, I agree
that the ICTY’s broad liability approach does evince a concern
with pernicious displays of practical reasoning. Second, the ICC
is simply making a different diagnosis and consequently
applying different medicine than courts which adopt the JCE
53
The doctrine of JCE, implied by Article 7(1) of the ICTY Statute,
imposes liability for an individual’s actions committed pursuant to a group
that has a common purpose. There are several versions (JCE1, JCE2, and
JCE3) which differ according to the mens rea requirements of each. For
instance, the so-called ‘basic’ JCE (JCE1) requires the accused to have
intended the crime, whereas ‘extended’ JCE (JCE3) requires mere awareness
that a certain result was likely to arise out of the group’s actions. JCE2,
known as ‘systemic’ or ‘concentration camp’ JCE, requires knowledge of the
nature of a system of repression. See Jennifer Trahan, Genocide, War
Crimes, Crimes Against Humanity: A Topical Digest of the Case Law of the
International Criminal Tribunal for the Former Yugoslavia, 2006, pp. 396–445.
Available at: http://www.hrw.org/reports/2006/07/26/genocide-war-crimes-
and-crimes-against-humanity-0 (last accessed on 22. February 2015).
54
For a critique of the doctrine of JCE, see Jens David Ohlin, Joint
Criminal Confusion, in ‘New Criminal Law Review,’ 12 (2009), pp. 406–419.
55
Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04–01/06–2842 (14
March 2012), ¶ 1003–1006. Available at: http://www.icc-cpi.int/iccdocs/doc/
doc1379838.pdf (last accessed on 22. February 2015).
doctrine. Whereas the ICTY targets a broader range of actors

who may simply ‘assist’ the common plan, the ICC approach is
one which targets individuals who function as both ‘engineer’
and ‘driver’ of the common plan. The different liability thresholds
for participation in a common plan are tantamount to different
‘treatment alternatives’ for the disease. Both the ICTY and the
ICC are concerned with afflictions of practical reasoning but
they adopt different approaches for combating this disease.
Thus far, we have seen how punishment within the Rome
Statute system affects the practical reasoning capacity of both
the individual and humanity as a whole. Again, in prohibiting
certain ends and means, punishment helps to delineate the field
on which the practical reasoning of individuals, organisations
and states may operate. The fact that a state’s membership in the
Rome Statute is voluntary, introduces yet another dimension to
punishment. It is to this final dimension of punishment that we
shall now turn.
10. State parties to the Rome Statute: the promise of

compliance
In order to become a member of the Rome Statute system, a

state must first ratify the Rome Statute – an act which consists in
a state’s voluntarily imposing certain legal duties upon itself.
Membership in the Rome Statute system – as with all treaty
membership – is a self-binding act. Numerous duties are imposed on
the member state, for instance: to cooperate fully with the Court
in its investigation and prosecution of crimes (Article 86); to
broaden its criminal laws so that they include as crimes
“offenses against the administration of justice” (Article 70), and
so forth. Since membership in the Rome Statute system imposes
numerous duties on a state – including ‘upgrading’ its domestic
criminal law – membership matures the member state’s criminal
justice system.
Another dimension to punishment within the Rome Statue
system concerns the fact of state self-binding that membership
in the Rome Statue system implies. Assuming that the state acts
in good faith, a state that self binds via ratifying the Rome
Statute agrees that it will not only modify its own domestic code,
so that it recognises the crimes of genocide, war crimes and
crimes against humanity, but it also agrees that if it fails – either
through unwillingness or inability – to prosecute these crimes
when perpetrated on its territory, the ICC may do so in its stead.
And, of course, if the ICC were to prosecute the crimes
committed on a member state’s territory, this would amount to a
form of censure of that member state.
Thus, in becoming a member of the Rome Statue system, a
state agrees to be morally censured, to be inculpated in the event
that it is unwilling or unable to prosecute the “most serious
crimes of concern” to the international community. In a sense, a
state party to the Rome Statute adopts a position similar to
Ulysses in Homer’s Odyssey: knowing that hearing the Sirens’
song would compel Ulysses to fling himself into the Sea, he
ordered his sailors to tie him to his ship’s mast, to disobey him if
he asked to be torn down – and to keep him tied up until the
Sirens’ song was no longer audible. Similarly, psychiatric
patients who are prone to recurring attacks enter into contracts
with others to ensure that they are given their medication, even
if they refuse it.56 When a state ratifies the Rome Statute, it acts
in a similar way – the member state agrees to be given its
‘medication’ (a prosecution) even when it is unwilling or unable
to do so. This is one of the unique features of punishment within
the Rome Statue system. It remains to be seen whether the
problem of ‘patient compliance’ is as serious in the Rome
Statute system as it is in the field of medicine. Whatever the
result, a virtue jurisprudential account of international criminal
law is best suited to explain the difference between a state that
agrees to take its self-prescribed medicine, and one that does not.
And in an Aristotelian fashion, we might refer to the virtue of
56
Such contracts are aptly called “Ulysses Contracts.” See Jennifer
Radden, Second Thoughts: Revoking Decisions Over One’s Future, in
‘Philosophy and Phenomenological Research,’ 54 (1994), pp. 795–796.
the former as ‘truthfulness.’57 There are deep questions aboutwhether

(and how) punishment should be administered to a state that
fails to exhibit truthfulness within the domain of international
criminal law.
11. Conclusion
Although criminal punishment has traditionally been understood

to be premised on either deterrence or retribution, virtue
jurisprudence offers an alternative understanding that helps us to
recognise what international criminal law is really about, namely,
the inculpation of a sophisticated yet afflicted capacity for
practical reasoning that is not properly aimed at the human good
and human flourishing. Granted, I have not argued for a
substantive conception of the good, since the purpose of this
paper was simply to show how virtue jurisprudence can make
sense of punishment within the Rome Statute system. The idea
that human action should aim at the promotion of flourishing is
of course not alien to international law, as we have noted that
humanity is the target of the Red Cross’ actions. If one needs a
working hypothesis about the nature of the target of international
criminal law, let me propose that it is the full recognition of
human dignity.
The recognition and protection of human dignity implies a
certain environment – a specific social order or “legal ecology”
– a fact that is explicitly acknowledged in Article 28 of
the Universal Declaration of Human Rights. 58 Whatever the
specific characteristics of the “international and social order”
referred to in Article 28, we can at least say that it proscribes those
large-scale plans and schemes that cause preventable, avoidable
trauma to innocent persons. An individual, state or organization
responsible for such trauma exhibits an afflicted capacity of
57
58
Universal Declaration of Human Rights, December 10, 1948, G.A.
Res. 217A (III), U.N. Doc. A/810, at Art. 28.
practical reasoning. Punishment of such afflicted individuals,

both inculpates their capacity for organization and proscribes
certain ends and means from the field on which practical reason
may operate. By “keeping the ends and means clean,” punishment
within international criminal law cleanses the environment
of those large-scale products of practical reason that are infected,
thereby promoting an international and social order that is more
hospitable to dignity and flourishing. On this view, punishment
within the international criminal justice system is done neither for
the sake of retribution nor for the sake of deterrence, but for the
sake of promoting the full recognition of human dignity – a
precondition of flourishing for individuals and hence for humanity
as a whole. A state or organisation that does not recognise human
dignity evinces symptoms of affliction. Accordingly, attention
should be directed towards the individuals responsible for this
infection, so long as doing so is compatible with the full
recognition of the dignity of such individuals.
Bibliography
Anscombe, G. E. M., Modern Moral Philosophy, in ‘Philosophy,’ 33 (1958),

pp. 1–19.
Aristotle, (David Ross (tr.)), Nicomachean Ethics, Oxford University Press,
New York, 1998.
Carnegie, Andrew, Wealth, in ‘North American Review,’ 391 (1889), 653–664.
Farrelly, Colinand Solum, Lawrence B., Virtue Jurisprudence, Palgrave Macmillan,
London, 2008.
Glendon, Mary Ann, A World Made New: Eleanor Roosevelt and the Universal
Declaration of Human Rights, Random House, New York, 2002.
Hugo, Victor, (Charles Wilbour (tr.)) Les Misérables, The Modern Library,
New York, 1992 (originally published 1862).
Huigens, Kyron, Virtue and Inculpation, in ‘Harvard Law Review,’ 108 (1995),
pp. 1423–1480.
— Homicide in Aretaic Terms, in ‘Buffalo Criminal Law Review,’ 6 (2002),
pp. 97–146.
MacIntyre, Alasdair, After Virtue: A Study in Moral Theory, University of
Notre Dame Press, Notre Dame, 1981.
Meron, Theodor, The Humanization of Humanitarian Law, in ‘The American
— The Humanization of International Law, Brill, Leiden, 2006.
Ohlin, Jens David, Joint Criminal Confusion, in ‘New Criminal Law Review,’
12 (2009), pp. 406–419.
Pictet, Jean, Commentary on the Fundamental Principles of The Red Cross
(I), in ‘International Review of the Red Cross,’ 211 (1979), pp. 130–149
— Commentary on the Fundamental Principles of The Red Cross (II), in
‘International Review of the Red Cross,’ 211 (1979), pp. 193–194.
Plato, (Benjamin Jowett, (tr.)), Euthyphro, C. Scribner’s Sons, New York,
1871.
Radden, Jennifer, Second Thoughts: Revoking Decisions Over One’s Future,
in ‘Philosophy and Phenomenological Research,’ 54 (1994), pp. 787–801.
Speer, Albert, Inside the Third Reich, Simon & Schuster, New York, 1997
Trahan, Jennifer, Genocide, War Crimes, Crimes Against Humanity: A Topical
Digest of the Case Law of the International Criminal Tribunal for the
Former Yugoslavia, Human Rights Watch, New York, 2006.
Verdross, Alfred von, Forbidden Treaties in International Law: Comments on
Professor Garner's Report on ‘The Law of Treaties, in ‘The American
Maria Antonella Pasculli 215
Maria Antonella Pasculli
Some Reflections on Restorative Justice

in Searching for Universal Justice
1. Does the right justice exist? An introduction
In International Criminal Law we can examine multiple

accountability mechanisms to prosecute international crimes.
States have the fundamental duty to prosecute, to extradite, to
surrender for the purpose of prosecution those individuals –
present within their territory – who are accused of violations
constituting “grave breaches” of International Conventions. 1
Basically the traditional model of the criminal justice system is
the State´s legal apparatus for the use of international criminal
law. This system presents a basic requirement of legal certainty,
a separation of powers, consisting primarily of three levels:
“legislation/criminalisation;” “adjudication of guilt and punishment;”
“administration of punishment.”2
The international legal order regards impunity as incompatible
with peace and addresses this problem with a large number of
mechanisms under conventional and customary laws. 3 In its
efforts to implement accountability mechanisms the international
community had provided several models, which are indicated as:
the international judicial model – the ICTY, the ICTR, for
1
For instance, the Geneva Conventions of 1949, the Convention of the
Prevention and Punishment of the Crime of Genocide, the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the
International Convention on the Suppression and Punishment of the Crime of
Apartheid.
2
Linda Gröning and Jørn Jacobsen (eds.), Restorative Justice and Criminal
Justice. Exploring the relationship, 2012, pp. 10–11.
3
Naomi Roht-Arriaza, The New Landscape of Transitional Justice, in
Naomi Roht-Arriaza (ed.), Transitional Justice in the Twenty-First Century:
Beyond Truth versus Justice, 2006, p. 11.
instance;4 the mixed judicial model – the Extraordinary Chambers

in the Courts of Cambodia, for instance; the national judicial
model – the Ethiopian Trials, for instance; the quasi-judicial
model of truth and reconciliation commissions in South Africa,
for instance; the non-judicial model, the case of Haiti, or El
Salvador and Guatemala, for instance; and, finally, the universal
model – the International Criminal Court or the Universality
Principle in the domestic systems, for instance.5
The universality of every form of justice debates the “victim
redress,” as a result of acts or omissions that constitute a
violation of international human rights or humanitarian legal
norms. When a person, individually or collectively, has suffered
harm, including physical or mental injury, emotional suffering,
economic loss, or impairment of that person’s fundamental legal
rights,6 the universality of justice contemplates that victim’s right
to remedy and to different forms of restitution, compensation,
rehabilitation, satisfaction and guarantee of non-repetition –
rather than the imprisonment of the perpetrators. 7 Adopting
similar approaches to bringing justice puts emphasis on the
active participation of victims, offenders and communities.8
In this article we will discuss the restorative models, addressing
the international guidelines for the pursuit of retributive policies,
essential to any society that has been involved in conflicts. The
4
Robert Cryer, Prosecuting International Crimes. Selectivity and the
International Criminal Law Regime, 2005, pp. 124–141.
5
Maria Antonella Pasculli, Universal Jurisdiction between Unity and
Fragmentation of International Criminal Law, in ‘Rivista di Criminologia,
Vittimologia e Sicurezza,’ 1 (2011), pp. 34–56.
6
Commission on Human Rights Resolution 2002/44 (23 April 2002);
The Right to restitution, compensation and rehabilitation for victims of gross
violations of human rights and fundamental freedom, Final report of the
Special Rapporteur, M. Cherif Bassiouni, in accordance with Commission
Resolution 1999/33.
7
M. Cherif Bassiouni, Proposed Guiding Principles for Combating
Impunity for International Crimes, in Id. (ed.), Post-Conflict Justice, 2002,
pp. 251–281.
8
Stephanie Vieille, Frenemies: Restorative Justice and Customary
Mechanisms of Justice, in ‘Contemporary Justice Review,’ 16 (2013), pp.
174–192.
paper will point out the meanings of the post-conflict dimension,

asking whether the restorative justice paradigm serves the best
interests of the States – dealing with past violations by removing
the injustices from the societal environment “created” by
crimes. 9 Restorative justice, as understood in the doctrinal
debate, basically signifies a process in which offenders, victims,
their representatives and representatives of the community come
together to agree on a response to a crime;10 it is also the “best
way to provide future deterrence, establish the facts, provide
satisfaction to the victims, and educate future generations.”11
2. Restorative justice: which models?
How are the perpetrators of atrocities and human rights

violations to be called to account for the crimes committed
during violent conflicts? The first step toward the pursuit of a
sound understanding of restorative justice practices consists in
clearing up the ambiguity of this expression.12
One of the most quoted definitions is provided by Tony
Marshall, who describes the model as “a process whereby all the
parties with a stake in a particular offence come together to resolve
collectively how to deal with the aftermath of the offence and its
implication for the future” in the form of a pyramid. 13 In the
same direction, Sullivan and Tifft use the expression “more
9
Recently on the case of Serbian responsibility for war crimes committed in
Bosnia, Jelena Subotic, Expanding the Scope of Post-conflict Justice.
Individual, State and Societal Responsibility for Mass Atrocity, in ‘Journal of
Peace Research,’ 48 (2011), pp. 157–169; on Northern Uganda, Paul Bukuluki,
Negotiating Restorative and Retributive Justice in Conflict Transformation
Efforts. A Case of Northern Uganda, 2011.
10
Linda Gröning and Jørn Jacobsen, Restorative Justice and Criminal
Justice. Exploring the relationship, 2012, p. 12.
11
M. Cherif Bassiouni (ed.), Post-Conflict Justice, 2002, p. XVII.
12
Charles Barton, Restorative Justice. The Empowerment Model, 2003,
pp. 32–47.
13
Tony Marshall, The Evolution of Restorative Justice in Britain, in
‘European Journal on Criminal Policy Research,’ 4 (1996), p. 21 and 37.
humane, participatory, inclusive, need-meeting and effective

responses to state-defined crime.”14 As a theory of social movement,
restorative justice represents a set of distinctive values, including
“democracy, social support, caring, love, non-dominated speech,”
according to Braithwaite and Strang.15
Recently Omalehas argued: “Restorative justice is a new
movement in the fields of victimology and criminology. The
interventions of restorative justice in the context of criminal
justice are relatively new models of dealing with the crime and
offending behaviour. So acknowledging that crime causes injury
to people and communities, restorative justice insists that justice
repair those injuriesand that the parties be permitted to
participate in that process. The restorative process of involving
all parties is fundamental to achieving the restorative outcome of
reparation and peace.”16
Restorative justice is a complex concept which has substantive
and symbolic, economic and social, legal and psychological
meanings. According to Marshall´s theory, the primary objectives
of restorative justice are: “to attend fully to victims’ needs –
material, financial, emotional and social; to prevent re-offending
by reintegrating offenders into the community; to enable
offenders to assume active responsibility for their actions; to
recreate a working community that supports the rehabilitation of
offenders; to provide a means of avoiding escalation of legal
justice and the associated costs and delays.” 17 These multiple
definitions should help us to question whether restorative justice,
compared to criminal justice, is exclusive or inclusive; whether
“restorative justice should be contained in criminal justice or
otherwise.”18
14
Dennis Sullivan and Larry Tifft, Handbook of Restorative Justice: a
Global Perspective, 2006, p. 17.
15
John Braithwaite and Heather Strang, Restorative Justice and Civil
Society, 2001, pp. 1–2.
16
John O. Omale, Restorative Justice and Victimology. Euro-Africa
Perspectives, 2012, p. 15.
17
Tony Marshall, Restorative Justice: an Overview, 2003, p. 29.
18
John O. Omale, Restorative Justice and Victimology, 2012, p. 17–18.
3. Retributive justice versus restorative justice
Justice is a legal term that could be described and contested

in various ways. As far as it concerns punishment, justice may
be retributive or restorative. 19 For a coherent definition of
retributivism, von Hirsch, Ashworth and Roberts claim that the
quantum of punishment for crimes should be proportionate to
their gravity. The offenders, who have committed a crime, must
be punished in proportion to the magnitude of their offensive
conduct. 20 More strongly, “retributivists are those who think
criminal offenders should be punished because they deserve it:
there is value in treating criminal offenders as they deserve.”21
The current legal system, known as retributive justice,
focuses on rules and laws, often losing sight of the harm done to
specific victims by the offender and the offence. Consequently,
retributive justice makes victims, at best, a secondary concern of
justice. A general report, however, implies a central concern for
the victims’ needs and roles.
Restorative justice thus begins with a concern for victims
and how to meet their needs, in order to repair the harm as far as
possible, both concretely and symbolically. A focus on harm
also implies an emphasis on the offender’s accountability and
responsibility.
Building on the existing literature on the restorative justice
approach, four elements are essential: active participation and
engagement; community involvement and ownership; informality
and flexibility; restoration.
19
Elrena van der Spuy, Stephan Parmentier and Amanda Dissel (eds.),
Restorative Justice: Politics, Policies and Prospects, 2007. See the final
appendix on the old and new paradigms of justice by Howard Zehr, Retributive
Justice, Restorative Justice, in Gerry Johnstone (ed.), A Restorative Justice
Reader. Texts, Sources, Context, 2003, pp. 81–82.
20
Andrew von Hirsch, Andrew Ashworth and Julian Roberts, Principled
Sentencing: Readings on Theory and Policy, 2009.
21
See the overview and the critics of retributivists theories, analysed by
Andrew Moss, Responding to Retributivists: a Restorative Justice Rejoinder
to the Big Three Desert Theories, in ‘Contemporary Justice Review,’ 16 (2013),
pp. 214–227.
As a first point, the attendance and participation of both

parties in the dispute presuppose a space where victims and their
offenders can discuss a crime and explore how it has affected
each of them.22 This is a great opportunity for both parties to
participate in and interact with the process. The second element
regards the participation of the community. According to Marshall,
any crime should be reviewed in a social context, as an issue to
be resolved collectively. The community drives and controls the
decision-making process with regard to the measures to be taken
for redress and restoration. Third, the restorative mechanism is
flexible and informal, compared to the court system, in order to
deal with a variety of cases and circumstances. Finally, the
nature of this process will privilege the rehabilitation and restoration
of those primarily harmed or damaged in some way. Sharing
experiences directly contributes to restoring dignity to the victims.23
Too often accountability has been viewed as punishment under
the retributive justice model. Little under this model encourages
offenders to understand the consequences of their actions or to
empathise with their victims.24 Accountability means, moreover,
taking responsibility for making things right with the victims
and their community as far as possible.
This implies a primary focus on the offender’s restitution,
through money and services, to the victims and their community.
Underlying the practice of restitution is the aim to achieve
healing for the harm done and responsibilities breached. Society
rarely achieves justice that is fully restorative. A realistic goal is
to move as far as possible toward a process that puts victims,
offenders, and members of the affected community, along with
their respective needs and roles, at the centre of the search for a
22
Dean Peachey, Victim/Offender Mediation: the Kitchener Experiment,
in Martin Wright and Khylee Quince (eds.), Mediation in Criminal Justice,
1988.
23
Charles Villa-Vicencio and Fanie Du Toit, Truth and Reconciliation
in South Africa: 10 Years On, 2007.
24
Howard Zehr, Restorative Justice: The Concept, in ‘Corrections Today,’
58 (1997), pp. 68–70.
justice that heals.25 Restorative justice views crime as harm done

to people and communities.
A realpolitik-oriented meaning suggests ways for States and
post-conflict societies to restore and enhance justice systems
which have failed or become weakened as a result of internal
conflicts. For a general idea of a realistic model, Zehr and Mika
argue that: “[…] victims and community have been harmed and
they are in need of restoration, and consequently that victims,
offenders and the affected communities are the key-stakeholders
in justice, that offenders´ obligations are to make things right as
much as possible, but that voluntary involvement is preferable:
coercion and exclusion should be minimised. The community´s
obligations are to victims and to offenders and for the general
welfare of its members, that victims´ needs should be the
starting point of justice, that dialogue should be facilitated and
that the justice system should be mindful of the outcomes,
intended and otherwise, of interventions in response to crime
and victimisation.”26
4. Legal issues and political mechanisms for a restorative

approach
Justice, peace and reconciliation are words that can contradict

each other, since these terms are mutually linked. Stout, re-
echoing the work of Johnstone, identifies “the four cardinal
points” to support a restorative justice model: “Crime is, in
essence, a violation of a person by another person, and this is
more significant than the breach of legal rules; in responding to
25
See, for instance, the recent study on the critical situation in Northern
Uganda, Terry Beitzel and Tammy Castle, Achieving Justice Through the
International Criminal Court in Northern Uganda: Is Indigenous/Restorative
Justice a Better Approach?, in ‘International Criminal Justice Review,’ 23
(2013), pp. 41–55.
26
Howard Zehr and Harry Mika, Fundamental Concepts of Restorative
Justice, in Eugene McLaughlin, Ross Fergusson, Gordon Hughes and Louise
Westmarland (eds.), Restorative Justice: Critical Issues, 2003, p. 41.
crime our primary concern should be to make offenders aware

of the harm they have caused, and to prevent them repeating that
harm; the nature of reparation and measures to prevent re-
offending should be decided collectively and consensually by
offenders, victims and the community. Efforts should be made
to improve the relationship between the victim and the offender
to reintegrate the offender into the community.”27
Reparative justice could even address the contradiction
between justice and peace in post-conflict societies. While the
mere absence of direct violence is often called negative peace,
the absence of structural violence – defined by destroyed
relationships or the lack of social institutions – should lead to
positive peace.28 Reconciliation refers therefore to positive peace
and can be “defined as mutual acceptance by groups of each
other.”29 This acceptance builds on a high degree of participation
across a broad spectrum of the population.30 Therefore, reconciliation
needs inclusiveness by definition.
However, participation is often not inherent in modern
justice, which is built on the elements of deterrent justice, with
punitive elements, such as state-sponsored court systems,
imprisonment or even the death penalty. Yet, in post-conflict
societies, it often appears as a selective winners’ justice, such as,
for example, in former Yugoslavia for the Serbs or currently in
Liberia for one part of Liberian society. If it divides and does
not offer truth, justice might disturb reconciliation by leaving
core actors out of the process and thereby allowing them to veto
future developments.
27
Brian Stout, Restorative Justice in South Africa: Resolving Conflict,
in ‘British Journal of Community Justice,’ 1 (2002), p. 52.
28
Johan Galtung, Peace by Peaceful Means: Peace and Conflict, Development
and Civilization, 1996.
29
Ervin Staub, Reconciliation after Genocide, Mass Killing, or Intractable
Conflict: Understanding the Roots of Violence, Psychological Recovery, and
Steps toward a General Theory, in ‘Political Psychology,’ 27 (2006), pp.
867–894.
30
John Paul Lederach, Building Peace: Sustainable Reconciliation in
Divided Societies, 1998.
The experiences of conflict often lead to traumata on an

individual and social level. While at the first level people can be
dealt with by psychologists on an individual basis, repairing
societal trauma appears as a different challenge. However, as
long as the healing of wounds is not guaranteed, reconciliation
cannot take place, while the perpetration of further injustice could
lead to renewed conflicts. Reparative justice offers mechanisms
to help heal wounds in the aftermath of a conflict. In this context,
it might help us to see the reconciliation process in a society as a
form of collective therapy. What sounds abstract is actually
based very much on human history.
Reparative justice has been repressed by the emergence of
modern rule-of-law systems and of the state monopoly on the
use of force, which has led to the modern state-sponsored
punitive and deterrent justice system. Reparative justice is both
inclusive and sensitive: it “encompasses both the legal and the
psychological harm suffered during conflict and responds to the
need to address both these dimensions.” 31 These components
distinguish it particularly from punitive justice and make it more
suitable for the special needs of post-conflict societies. Reparative
justice recognises injustice not only as a consequence of conflict,
but also as a symptom and cause of conflict.
To be effective, credible and exhaustive, these accountability
mechanisms must include the cessation of the conflict and the
ending of the victimisation process; the prevention and deterrence
of future conflicts; the rehabilitation of the society as a whole and
of the victims as a group; the reconciliation between the different
peoples and groups within the society. These factors have to be
taken into account: the gravity of violations; the extent and
severity of victimisation; the number of accused persons; the
identity of the accused; the extent to which both sides are
equally committed to international criminal standards; the
current government; the competence and the independence of
the domestic judiciary; the evidentiary issues; the cultural
31
Robert Mani, Post-Conflict Peacebuilding: The Challenges of Security,
Welfare and Representation, in ‘Security Dialogue,’ 36 (2005), pp. 429–446.
elements concerning the will of the community; the nature of the

conflict, whether international, internal armed conflict, or a
repressive domestic regime.
5. Truth Commissions
Doctrinal debates concern the relationship between the

international trials and the Truth Commissions.32 It is a fundamental
tenet that legal processes have no rival in establishing guilt and
innocence.33 The most outspoken critical opinions think that the
Truth Commissions permit criminals to get away unpunished for
their crimes.
At the other pole, in political transitions, legal trials are not
better than restorative mechanisms for two reasons. First of all,
after international or armed conflicts, a new government is
established. So judicial systems and police forces are not able to
investigate, try, and punish the criminal due to a lack of political
and economic infrastructures. Second, the soft approach to post-
conflict justice pursues the finalism of justice and its objectives
more than legal justice.34
Truth Commissions are considered one of the fundamental
tools in processes of justice and reconciliation, not as alternatives
to, or substitutes for, legal processes, but rather as integral and
complementary components of reconciliation.
The implementation of Truth Commissions has varied in
different contexts, ranging from official inquiries into human
rights abuses mandated by the state with direct links to judicial
32
Benjamin N. Schiff, Do Truth Commissions Promote Accountability
or Impunity? The Case of South Africa Truth and Reconciliation, in M.
Cherif Bassiouni (ed), Post-Conflict Justice, 2002, pp. 325–343.
33
Diane F. Orentlicher, Settling Accounts: the Duty to Prosecute Human
Rights Violations of a Prior Regime, in ‘Yale Law Journal,’ 100 (1991), pp.
2537– 2615.
34
On the effects of reconciliation in theory and practice, see Elisabeth
Baumann, Striking a Balance between Justice and Peace: Restorative Justice
in State of Transition, in Linda Gröning and Jørn Jacobsen (eds.), Restorative
Justice and Criminal Justice, 2012, p. 123 and 135.
processes, to non-governmental initiatives to document violations.

Common characteristics of Truth Commissions are analysed
here below. These structures are public sector bodies, which
include prominent personalities from civil societies and members
of non-governmental human rights organisations. Their status as
a non-judicial body does not permit them to perform the basic
functions carried out by the judiciary or prosecutor’s office.
However, the Truth Commissions must respect the formal rules
of the process of law. The object of non-criminal investigations
concerns acts committed within a single country, avoiding the
violations perpetrated beyond the border. Finally, the temporary
nature (often from one to two years) of their mandate, which
includes a final report with conclusions and recommendations
for redressing violations, including reparations and institutional
reforms, must safeguard the evidence of the acts committed.35
Truth Commissions are told to contribute to justice and
reconciliation in several ways that are distinct from, and/or add
value to formal prosecution. 36 They create a public space for
victims to be heard and acknowledged; they allow for collective
and institutional responsibility, unlike formal legal processes,
which are restricted to the individual. They can contribute
directly to legal and judicial procedures or make prosecution
more likely in the future. They offer an opportunity to make
recommendations regarding reconciliation processes, including
reparations and institutional reforms, as well as an opportunity
to put in place the required funding structures, such as special
funds, etc. They establish a shared understanding of the past,
which is important for reconciliation. Given these functions, it
has been argued that overall Truth Commissions have been more
successfully implemented, and have contributed more to processes
of national reconciliation than war crime tribunals.
35
Rodolfo Mattarollo, Truth Commissions, in M. Cherif Bassiouni (ed.),
Post-Conflict Justice, 2002, pp. 295–324.
36
Brandon Hamber, Forgiveness and Reconciliation: Paradise Lost or
Pragmatism?, in ‘Peace and Conflict, Journal of Peace Psychology,’ 13 (2007),
pp. 115–125.
In spite of their advantages, Truth Commissions can be

controversial and risky. Revealing the truth and uncovering its
path can derail peace initiatives and trigger conflict, particularly
if they are perceived as a substitute for retributive justice.
Moreover, it is a psychologically painful process, and is susceptible
to manipulation or reinterpretation. The design, structure and
implementation have a major influence on the outcomes of
commissions, and it is important that they are given careful
consideration by national as well as international actors.37
6. Lustration policies
“To lustrate” simply means “to purify ceremonially as a

means of removing blood-guiltiness and cleansing a house.”
Authors discuss the meaning of the word “lustration” especially
dealing with the past, with a violent, drastic, repressive regime
or armed conflict, or with gross violations of human rights.
Karstedt distinguishes two types of public procedures of
lustration: first, intended as “criminal proceedings against members
of the elites and authorities over the lower ranks of the state
bureaucracy;” second, named as “mass and screening procedures,
which are conducted against collaborators, party members or
employees of state organisations (e.g. the police; security agencies)
mainly from the middle and lower ranks of the hierarchy.”38
The legality of lustration, a form of transitional justice opted
for by many post-Communist countries in Central and Eastern
Europe – the Czech Republic, for instance – has been repeatedly
questioned by regional and international scholars, dissidents,
37
Massimo Starita, La giustizia internazionale per gross violations di
diritti umani fra esigenze retributive e riconciliative, in Giovanni Fiandaca
and Costantino Visconti (eds.), Punire, Mediare, Riconciliare. Dalla giustizia
penale internazionale all’elaborazione dei conflitti individuali, 2009, pp.
59–70.
38
Susanne Karstedt, Coming to Terms with the Past in Germany after
1945 and 1989: Public Judgments on Procedures and Justice, in ‘Law and
Policy,’ 20 (1998), pp. 15–56.
practitioners, international organisations, and domestic and

international courts. In its most basic form, lustration is a kind of
employment vetting, designed either to remove or prevent from
assuming public office those persons who collaborated with the
previous Communist regime or secret security services. 39 The
intention of lustration has generally been to demonstrate to the
population that there is a real change in the personnel of post-
Communist governments, as well as to safeguard against those
individuals undermining the democratic reform process. Lustration
is conceived of as both an institutional and a symbolic step
toward good governance. However, the means of effecting such
institutional changes are fraught with potential legal and moral
dilemmas. As such, the extent to which lustration laws support
or undermine the process of democratic consolidation remains
open to debate.
Lustration laws epitomise in many ways the trade-offs
embodied in rule-of-law versus retroactive justice debates. The
structure of lustration could violate fair employment laws, freedom
of assembly guarantees, free speech laws, and respect for due
process. 40 However, strict rule-of-law adherence could ignore
injustices committed under the previous regime or allow inequalities
in political and economic access and privilege to remain under
the new regime.41
Legitimacy is a key requirement for effective governance,
and an important factor to consider when setting up new regimes
and governmental structures. If the previous regime was
discredited, and especially if this was due, in part, to significant
abuses of human rights, it is important that the new government
not behave – or even appear to behave –in the same way as the
old regime. Preventing members of the old, abusive regime from
holding office in the new government is one way at least to
39
Natalia Letki, Lustration and Democratisation in East-Central Europe,
in 'Europe-Asia Studies,' 54 (2002), pp. 529–552.
40
Claus Offe, Varieties of Transition. The East European and East German
Experience, 1996, p. 88.
41
Eric A. Posner and Adrian Vermeule, Transitional Justice as Ordinary
Justice, in ‘Harvard Law Review,’ 117 (2004), pp. 761–825
appear to be changing policies. Removing those who operated in

the repressive state apparatus also provides a psychological break
with the past and marks a new chapter in the nation's history.42
7. Justice or not Justice: that the question. Final remarks
Taking account of the past is the starting point for choosing

between judicial or restorative models. The global search for
justice and reconciliation following conflict remains a “work in
progress.” 43 Many institutions press the cause of post-conflict
justice, contrary to the international tribunals, which were created
after horrific atrocities were committed. Restorative justice can
become a substitute for international inaction prior to and during
these acts of inhumanity. There is an overall reluctance to take a
critical view of jurisdictional mechanisms for the prosecution of
international crimes. In the international judicial systems the
interest and the scope are there for the perpetrators and for the
community as whole. The international community has to sanction
the criminals; the perpetrators must indeed be indicted and punished.
The primary outcome related to restorative justice is addressed
to the people, to the victims of society, who endured the conflict
and suffered the atrocities in question. Victim groups and local
society have often been ignored by International ad hoc Tribunals.
From a legal perspective the obligations of post-conflict justice
include such elements as criminal accountability, a right to the
truth, and reparation. From a political perspective post-conflict
justice could represent an opportunity for peace-building and long-
term stability in a country. From a moral perspective the culture
of impunity could be replaced by a culture of accountability,
giving a sense of security to victims and a warning to those who
might contemplate future crimes.
42
Robert Boed, An Evaluation of the Legality and Efficacy of Lustration
as a Tool of Transitional Justice, in M. Cherif Bassiouni (ed.), Post-Conflict
Justice, 2002, pp. 345–382.
43
Neal J. Kritz, Progress and Humility: the Ongoing Search for Post-Conflict
Justice, in M. Cherif Bassiouni (ed.), Post-Conflict Justice, 2002, pp. 55–87.
Bibliography
Barton, Charles, Restorative Justice. The Empowerment Model, Hawkins Press,

Sydney, 2003.
Bassiouni, M. Cherif (ed.), Post-Conflict Justice, Transnational Publishers
Inc., Ardsley/ New York, 2002.
Beitzel, Terry and Tammy Castle; Achieving Justice through the International
Criminal Court in Northern Uganda: Is Indigenous/Restorative Justice
a Better Approach?, in ‘International Criminal Justice Review,’ 23 (2013),
pp. 41–55.
Braithwaite, John and Heather Strang, Restorative Justice and Civil Society,
Cambridge University Press, Cambridge, 2001.
Bukuluki, Paul, Negotiating Restorative and Retributive Justice in Conflict
Transformation Efforts. The Case of Northern Uganda, Lit Verlag,
Zurich/ Berlin, 2011.
Cryer, Robert, Prosecuting International Crimes. Selectivity and the International
Criminal Law Regime, Cambridge University Press, Cambridge, 2005.
Galtung, Johan, Peace by Peaceful Means: Peace and Conflict, Development
and Civilization, Sage Publications, London, 1996.
Gröning, Linda and Jørn Jacobsen (eds.), Restorative Justice and Criminal
Justice. Exploring the Relationship, Santerus Academic Press, Stockholm,
2012.
Hamber, Brian, Forgiveness and Reconciliation: Paradise Lost or Pragmatism?,
in ‘Peace and Conflict, Journal of Peace Psychology,’ 13 (2007), pp. 115–125.
Hirsch, Andrew von, Andrew Ashworth and Julian Roberts, Principled
Sentencing: Readings on Theory and Policy, Hart, Portland, 2009.
Karstedt, Susanne, Coming to Terms with the Past in Germany after 1945
and 1989: Public Judgments on Procedures and Justice, in ‘Law and
Policy,’ 20 (1998), pp. 15–56.
Lederach, John Paul, Building Peace: Sustainable Reconciliation in Divided
Societies, Institute of Peace Press, Washington D.C., 1998.
Letki, Natalia, Lustration and Democratisation in East-Central Europe, in
‘Europe-Asia Studies,’ 54 (2002), pp. 529–552.
Mani, Robert, Post-Conflict Peacebuilding: The Challenges of Security, Welfare
and Representation, in ‘Security Dialogue,’ 36 (2005), pp. 429–446.
Marshall, Tony, Restorative Justice: an Overview, in Gerry Johnstone (ed.),
A Restorative Justice Reader. Texts, Sources, Context, Willan Publishing,
Portland, 2003, pp. 28–45.
Marshall, Tony, The Evolution of Restorative Justice in Britain, in ‘European
Journal on Criminal Policy Research,’ 4 (1996), pp. 21–43.
Moss, Andrew, Responding to Retributivists: a Restorative Justice Rejoinder
to the Big Three Desert Theories, in ‘Contemporary Justice Review,’ 16
(2013), pp. 214–227.
Offe, Claus, Varieties of Transition. The East European and East German
Experience, Polity Press, Cambridge, 1996.
Omale, John O., Restorative Justice and Victimology. Euro-Africa Perspectives,
Wolf Legal Publishers, Nijmegen, 2012.
Orentlicher, Diane F., Settling Accounts: the Duty to Prosecute Human Rights
Violations of a Prior Regime, in ‘Yale Law Journal,’ 100 (1991), pp.
2537– 2615.
Pasculli, Maria Antonella, Universal Jurisdiction between Unity and Fragmentation
of International Criminal Law, in ‘Rivista di Criminologia, Vittimologia
e Sicurezza,’ 1 (2011), pp. 34–56.
Posner, Eric A. and Adrian Vermeule, Transitional Justice as Ordinary Justice,
in ‘Harvard Law Review,’ 117 (2004), pp. 761–825.
Roht-Arriaza, Naomi, The New Landscape of Transitional Justice, in Naomi
Roht-Arriaza (ed.), Transitional Justice in the Twenty-First Century:
Beyond Truth versus Justice, Cambridge University Press, Cambridge,
2006.
Starita, Massimo, La giustizia internazionale per gross violations di diritti
umani fra esigenze retributive e riconciliative, in Giovanni Fiandaca and
Costantino Visconti (eds.), Punire, Mediare, riconciliare. Dalla giustizia
penale internazionale all’elaborazione dei conflitti individuali, Giappichelli,
Turin, 2009, pp. 59–70.
Staub, Ervin, Reconciliation after Genocide, Mass Killing, or Intractable
Conflict: Understanding the Roots of Violence, Psychological Recovery,
and Steps toward a General Theory, in ‘Political Psychology,’ 27 (2006),
pp. 867–894.
Stout, Brian, Restorative Justice in South Africa: Resolving Conflict, in ‘British
Journal of Community Justice,’ 1 (2002), pp. 51–61.
Subotic, Jelena, Expanding the Scope of Post-conflict Justice. Individual, State
and Societal Responsibility for Mass Atrocity, in ‘Journal of Peace
Research,’ 48 (2011), pp. 157–169.
Sullivan, Dennis and Larry Tifft, Handbook of Restorative Justice: a Global
Perspective, Routledge, London, 2006.
van der Spuy, Erlena, Stefan Parmentier and Amanda Dissel (eds.), Restorative
Justice: Politics, Policies and Prospects, Juta & Co., Cape Town, 2007.
Vieille, Stephanie, Frenemies: Restorative Justice and Customary Mechanisms
of Justice, in ‘Contemporary Justice Review,’ 16 (2013), pp. 174–192.
Villa-Vicencio, Charles and Fanie Du Toit, Truth and Reconciliation in South
Africa: 10 Years on, New Africa Book Ltd, Claremont, 2007.
Wright, Martin and Khylee Quince (eds.), Mediation in Criminal Justice,
Sage, London, 1988.
Zehr, Howard and Harry Mika, Fundamental Concepts of Restorative Justice,
in Eugene McLaughlin, Ross Fergusson, Gordon Hughes and Louise
Westmarland (eds.), Restorative Justice: Critical Issues, Sage, London,
2003, pp. 40–43.
Zehr, Howard, Restorative Justice: The Concept, in ‘Corrections Today,’ 58
(1997), pp. 68–70.
Damien Scalia 231
Damien Scalia
The Illusion of Universality

in International Criminal Law
1. Introduction
As Doudou Thiam, Special Rapporteur of the International

Law Commission, pointed out: “In domestic law, there exists
within each State a certain uniformity of moral and philosophical
approach which justifies a single system of punishment applicable
to all crimes. In international law, on the other hand, the
diversity of concepts and philosophies is hardly conducive to a
uniform system of punishment.”1 The international community
has, nonetheless, endowed itself with an international criminal
law that claims to be universal so as to fight against impunity
and safeguard international peace and security.2 These purposes
resulted in a willingness within the international community to
establish a universal international criminal court i.e. a tribunal
that could, at anytime and anywhere in the world, judge perpetrators
of crimes considered to be the most serious: war crimes, crimes
against humanity, crimes of genocide and, more recently, crimes
of aggression. However, universality is called for first and
foremost, following the idea that judging international criminals
is a moral obligation which must be satisfied on behalf of
mankind (i.e. all human beings).
1
International Law Commission, Ninth Report on the Draft Code of
Crimes against the Peace and Security of Mankind, in ‘Yearbook of the
International Law Commission’ (1991), p. 38, para. 5.
2
See on this matter the Preamble of the Statute of the International
Criminal Court ; Report of the Secretary General Pursuant to Paragraph 2 of
Security Council Resolution 808 (1993), UN Doc. S/25704 ; Security Council,
Resolution 827(1993), establishing the ICTY, 25 May 1993, UN Doc. S/RES/
827(1993) ; Security Council, Resolution 955(1994), establishing the ICTR,
9 November1994, UN Doc. S/RES/ 955(1994).
The idea to establish a Court that claimed to be universal

was really launched in 1998, with the advent of the International
Criminal Court (hereinafter ‘ICC’).3 Nonetheless the concept of
a universal tribunal dates back as far as 1872. In 1872, Gustave
Moynier, one of the founders and presidents of the International
Committee of the Red Cross, presented a proposal aimed at
creating a treaty-based international tribunal.4 This tribunal will
never be created.
Thereafter, on behalf of mankind, lot of willingness arose to
create international criminal tribunals. The idea of an international
tribunal emerged in the aftermath of World War I, in order to
judge Wilhelm II for a “supreme offence against international
morality.” 5 This tribunal never saw the light of the day, as
Wilhelm II, who took refuge in the Netherlands, was never
arrested. Therefore, the first realization of an international criminal
tribunal emerged in the aftermath of World War II, with the
creation of the International Military Tribunal of Nuremberg
(hereinafter ‘IMTN’) and the International Military Tribunal for
the Far East (‘IMTFE’). Although without universal jurisdiction,
their vocation was to show to the world that atrocities committed
would not remain unpunished. This was even one of the three
arguments put forward by the Prosecutor, who supported the
creation of the Nuremberg Tribunal: “(i) Even principles for
which the Allies fought for, i.e. freedom and human rights,
necessarily imply that every accused person had to benefit from
a fair trial before being eventually condemned. It is only at this
price that the work of the Allies would have appeared as an
enterprise of justice and not only of arbitrary revenge. Justice
must not only be done, but be seen to be done. (ii) Trials had to
3
Even though universality of the Court is questioned by the doctrine:
See e.g. Bruce Broomhall, International Justice and the International Criminal
Court: Between Sovereignty and the Rule of Law, 2004.
4
Christopher Keith Hall, The First Proposal for a Permanent International
Criminal Court, in ‘International Review of the Red Cross’, 322 (1998), pp.
57–78.
5
Article 227 of the Treaty of Versailles, 28 June 1919.
Damien Scalia 233
have an educational impact for public opinion regarding the

seriousness of the crimes committed. (iii) It was necessary to
constitute files as complete as possible for posterity, for future
generations and historians, in order to bear witness to such
serious events that rocked the world.”6 Judges also demonstrated
that the judgement of Nuremberg claimed to be universal: “La
conscience du monde, bien loin d’être offensée s’il [le coupable]
est puni, serait choquée s’il ne l’était pas.”7
Later, the Convention on the Prevention and Punishment of
the Crime of Genocide also set out the creation of a universal
criminal tribunal. Arguing in its preamble that “genocide is a crime
under international law, contrary to the spirit and aims of the
United Nations and condemned by the civilized world, recognizing
that at all periods of history genocide has inflicted great losses on
humanity, and being convinced that, in order to liberate mankind
from such an odious scourge, international co-operation is
required,” 8 article VI of the Convention states that “persons
charged with genocide or any of the other acts enumerated in
article III shall be tried by a competent tribunal of the State in
the territory of which the act was committed, or by such
international penal tribunal as may have jurisdiction with respect
to those Contracting Parties which shall have accepted its
jurisdiction.” Once again, this tribunal will never be created in
the absence of an international agreement to do so.
One then had to wait until the early nineties for the creation
of two international criminal tribunals: the International Criminal
Tribunal for the former Yugoslavia (hereinafter ‘ICTY’) and the
International Criminal Tribunal for Rwanda (hereinafter ‘ICTR’).
These tribunals both have jurisdiction that is limited in terms of
6
Robert Kolb and Damien Scalia, Droit international pénal, 2012, p.
34. (Free translation provided by the author).
7
IMTN, Trial of the Major War Criminals before the International
Military Tribunal, 14 November 1945 – 1st October 1946, Judgment, Nuremberg,
Official Documents, 1947, p. 231. Vol. 1.
8
Convention on the Prevention and Punishment of the Crime of Genocide,
9 December 1948, Preamble.
space and time9 (at least this is the case for the ICTR), but they
contribute towards the universal aim of international criminal law
by their demonstrating a willingness to put an end to impunity.
The ICC was a further step in this regard. If it can only
judge crimes that have been committed on the territory of a State
Party to its Statute (or by a national of this State), it is entitled to
become universal and to be able to prosecute and judge people
who are suspected of having committed crimes falling within its
jurisdiction, no matter the place of the commission of the crime,
the nationality of the victim or the nationality of the perpetrator.
This growing (or allegedly growing) universality already provides
the possibility of prosecuting authors of international crimes
committed beyond personal and territorial jurisdictional criteria,
through referral by the Security Council.10 A universal criminal
court, founded on complementarity system between national and
international level, has therefore been born. “In practice, this
complementarity system involves, however, interaction rather
than the absolute autonomy of each sphere of criminal justice,
national and international, or a narrow subordination of one to
the other.”11
Yet, the establishment of a unique criminal law system
nonetheless requires uniformity of moral and philosophical
approach, which should notably appear in the punished offences
and penalties. In my contribution, I focus on the latter: as it is
the fundamental element of the criminal process: the criminal
sanction ends the criminal process and achieves it. The criminal
sanctions is the purpose of criminal process. Here, I do not refer
to consistency of sentences, which is neither possible nor desirable:
each sentence must be individualized according to the acts it
punishes, the perpetrators of these acts and the circumstances
9
See articles 8 of the Statute of the International Criminal Tribunal for
the former Yugoslavia and article 7 of the Statute of the International
Criminal Tribunal for Rwanda.
10
See article 16 of the Statute of the International Criminal Court.
11
Mireille Delmas-Marty, The Contribution of Comparative Law to a
Pluralist Conception of International Criminal Law, in ‘Journal of International
Criminal Justice’, 1 (2003), pp. 13–25, p. 15.
Damien Scalia 235
surrounding the offence. Universality of penalties refers to a

unique and consistent approach allowing their determination: the
criteria taken into account must be the same and the scale of
sentences must be both unique and consistent.
In this regard, does universality exist? The answer is no:
neither the comparison of penalties pronounced by international
tribunals (i) nor the comparison between the international system
and national systems (ii) nor, finally, the comparison between
each national system (iii) demonstrate such universality.
It therefore appears that international criminal law, which
claims to be universal through its disapproval and punishment of
international crimes, does not achieve this universality. It remains
an international but not universal law. The reason may be that
the criminal law tool is not suited to adequately answering these
crimes.
2. Inconsistency of penalties in international criminal law

Universality of penalties implies that they are consistent.
Indeed, if one looks for universality of penalties, these must
apply equally to everybody anywhere. Yet, it is only within
international criminal law that consistency of penalties does not
exist: neither within an individual international tribunal, nor
between the international tribunals. The length of pronounced
penalties demonstrates this absence of universality.
There is no specific scale of penalties in international law,
neither within each international tribunal nor between them. In
the Furundžija case in 2002, i.e. seven years after the establishment
of the international criminal tribunals, the Appeals Chamber
stated that “it is […] premature to speak of an emerging ‘penal
regime’ and the coherence in sentencing practice that this
denotes. It is true that certain issues relating to sentencing have
now been dealt with in some depth; however, still others have
not yet been addressed.”12 This principle was reaffirmed by the
12
ICTY, The Prosecutor v. Furundžija, case n° IT-95–17/1-A, Judgment,
Appeals Chamber, 21 July 2000, para. 237.
Appeals Chamber a few months later in the Delalić case, when it

stated that “the benefits of such a definitive list are in any event
questionable.” 13 Yet, the international criminal tribunals will
conclude their work in a few years and no scale of penalties
exists.14
On the one hand, there are no guidelines relating to penalties.
Indeed, criteria for determining the appropriate penalty are not
clear. As examples, although the founding texts of the international
criminal tribunals mention the “general practice regarding prison
sentence” in the courts of States of the commission of crimes as a
criterion to be used to determine the penalty by these tribunals,15
they have considered that this practice should only be indicative.16
Moreover, inconsistency appears to link to the seriousness of
crimes. The international criminal tribunals have not succeeded
in agreeing on seriousness. The comparison of case law regarding
war crimes and crimes against humanity provides a symptomatic
example. Before the ICTY in the Tadić case,17 the Trial Chamber
considered that the seriousness of crimes against humanity was
greater than that of war crimes. The Appeals Chamber refuted
this position by taking the view that “there is in law no
distinction between the seriousness of a crime against humanity
and that of a war crime. The Appeals Chamber finds no basis for
such a distinction in the Statute or the Rules of the International
Tribunal construed in accordance with customary international
law; the authorized penalties are also the same, the level in any
particular case being fixed by reference to the circumstances
13
ICTY, The Prosecutor v. Delalić et al., case n° IT-96–21-A, Judgment,
Appeals Chamber, 20 February 2001, para. 716.
14
Silvia D’Ascoli, Sentencing in International Criminal Law. The UN
ad hoc Tribunals and Future Perspectives for the ICC, 2011; Damien Scalia,
Du principe de légalité des peines en droit international pénal, 2011.
15
Article 24 of the Statute of the International Criminal Tribunal for the
former Yugoslavia and article 23 of the Statute of the International Criminal
Tribunal for Rwanda.
16
ICTY, The Prosecutor v. Tadić, case n° IT-94–1-T et IT-94–1Abis,
Judgment in Sentencing Appeals, Appeals Chamber, 26 January 2000, para. 21.
17
ICTY, The Prosecutor v. Tadić, Sentencing Judgment, Trial Chamber,
11 November 1999, para. 28.
Damien Scalia 237
of the case.” 18 Later, in the Blaskić case, the Trial Chamber

underlined the uncertainty that surrounds this issue. 19 In the
Aleksovski case, the Appeals Chamber specified that no objective
severity scale existed between the differently judged offences.20
A hierarchical organization between the crime against humanity
and the war crime thus seems to have been rejected by the
international criminal tribunals, despite there being contradictory
case law on this matter.21
Finally, the aggravating and mitigating factors taken into
consideration to determine the penalty also demonstrate a lack
of consistency. They are low in definitions or poorly defined in
the founding texts of the international criminal tribunals, and
have led to an anarchic judicial creation. An example of this
inconsistency can be seen from the Tadić case, in which the judges
considered that “good character” was an aggravating factor, 22
arguing that the perpetrator had betrayed his victims since they had
trusted him. However, in the Plavsić case, this same “good
character” was determined to be a mitigating factor.23
An inconsistency as regards pronounced penalties results
from these findings: how can it be explained that a person was
sentenced to 40 years imprisonment for four counts of crimes
against humanity and one count of violation of the laws or
customs of war, 24 while another person was sentenced to 25
years imprisonment for four counts of crimes against humanity,
18
ICTY, The Prosecutor v. Tadić, Cases n° IT-94–1-A and IT-94–1-
Abis, Judgment in Sentencing Appeals, Appeals Chamber, 26 January 2000,
para. 69.
19
ICTY, The Prosecutor v. Blaskić, Judgment, Trial Judgment, 3 March
2000, para. 797.
20
ICTY, The Prosecutor v. Furundžija, Judgment, Appeals Chamber 21
July 2000, para. 242.
21
Damien Scalia, Du principe de légalité des peines en droit international
pénal, 2011, pp. 197–200.
22
ICTY, The Prosecutor v. Tadić, Sentencing Judgment, Trial Chamber,
14 July 1997, para. 59.
23
ICTY, The Prosecutor v. Plavsić, Sentencing Judgment, Trial Chamber,
27 February 2003, para. 65
24
ICTY, The Prosecutor v. Stakić, Judgment, Appeals Chamber, 22
March 2006.
five counts of violation of the laws or customs of war and three

counts of grave breaches of the Geneva conventions?25 How can
we understand that a person was sentenced to 15 years
imprisonment for his participation to the Tutsi genocide in
Rwanda (the “crime of the crimes”) and three counts of crimes
against humanity while, for the same charges, another person
was sentenced to life imprisonment?26 How do we explain that
18 years imprisonment was pronounced for violent criminal acts
and other inhuman acts,27 while others have been sentenced to
15 years imprisonment for genocide?28 Why have some people
been sentenced to life imprisonment for genocide or complicity
in genocide by the ICTR while, before the ICTY, someone was
sentenced to 35 years imprisonment for the same crime?29
The disparities in penalties pronounced by the international
criminal tribunals bear witness to the lack of consistency that
exists, not only in the founding texts of these tribunals, but also
in the case law they have developed. The alleged and desired
universality is therefore only illusory.
3. Inconsistency between national and international level
The absence of the universality of penalties then further

emerges when one compares the punishment of crimes at the
international level to those at the national level.
This observation had already appeared during the negotiations
that led to the creation of the ICC. Indeed, the debates demonstrated
25
ICTY, The Prosecutor v. Kordić, Judgment, Appeals Chamber, 17
December 2004.
26
ICTR, The Prosecutor v. Rutaganda, Judgment and Sentence, Trial
Chamber, 6 December 1999.
27
ICTY, The Prosecutor v. Delalić, Mucić, Delić et Landžo, Judgment,
Appeals Chamber, 20 February 2001.
28
ICTR, The Prosecutor v. Serushago, Sentence, Trial Chamber, 5
February 1999.
29
ICTY, The Prosecutor v. Krstić, Judgment, Appeals Chamber, 19 April
2004.
Damien Scalia 239
that States only reached minimal agreement on the quantum of

penalties pronounceable by the ICC (30 years imprisonment or
life imprisonment), but did not transcribe a unique morality or
philosophy on this matter. During the negotiations, most of the
delegations expressed their satisfaction to see that the draft
Statute did not provide for death penalty. However, one of them,
pointing out that a large number of States apply death penalty
considered that it was relevant to include it in the Statute. Indeed,
the representative of Egypt considered that the Statute also had
to reflect the different legal orders existing in the world, and
must therefore take into account the death penalty, since a high
number of States still apply it, notably States that apply Islamic
law. The majority of representatives asked for the Statute to
contain a precise and detailed list of penalties in relation to the
seriousness of the crimes committed. On the contrary, many
delegations objected to life imprisonment and proposed to
substitute it with a maximum imprisonment penalty. Further, a
high number of delegations underlined the inappropriate character
of the fine, focusing on the nature and the specificity of the
crimes to be judged by the Court. It was suggested that the death
penalty could be applied in certain cases, in case of aggravating
circumstances. The representative of France considered that the
Court should only pronounce imprisonment not exceeding 30
years, reduced to 20 years for young people between 13 and 18
years of age old unless an exceptional and reasoned decision
was made. The representative of Sweden underlined that he was
not in favour of life imprisonment. The representative of
Singapore considered that caution should be exercised. Account
should be taken of penalties provided for in national law, but at
the same time emphasis should not be put on national law
because there are too many important differences between the
same crime, and the accused person would be at risk of being
judged differently. 30 In short, States did not agree on many
30
UN press release, Le Comité préparatoire pour la création d’une cour
criminelle internationale entame l’examen de la question des peines applicables,
points. These few examples from the negotiations demonstrate

that, even at the time of creating a universal criminal court, there
existed no agreement on the penalties to be pronounced by the
future court.
The lack of universality regarding penalties next appears in
the implementation of the ICC Statute. Indeed, even if it is
unquestionable that the Rome Statute has already exercised
strong influence on national law and, most widely, on national
and international thoughts, 31 the analysis of domestic laws
implementing this Statute demonstrates that penalties provided
for on the national level are not identical to those provided for
by the Rome Statute. Belgian and French domestic laws mention
precise penalties for each offence (notably war crimes) and, in
certain cases, set out a maximum sentence ranging from 10 to 20
years according to the committed acts. 32 In this regard, some
authors have argued that the principle of complementarity, which is
necessary between national laws and the ICC Statute, is also
required in sentencing33 and, for other authors, an harmonization
exists.34 Nevertheless, experience suggests the opposite.
Finally, the absence of universality appears when one compares
penalties pronounced at the national level to those pronounced at
the international one. Before the ICC, Thomas Lubanga Diylo
was been sentenced to 14 years imprisonment for having
enlisted child soldiers. Yet, 14 years imprisonment more or less
corresponds to penalties punishing, in certain national laws, the
UN Doc. AG/L/172, 22 August 1996. This document is only available in

French. (Free translation provided by the author).
31
Darryl Robinson, The Rome Statute and its Impact on National Law,
in Antonio Cassese, Paola Gaeta and John R.W.D. Jones (eds.), Statute of the
International Criminal Court, 2002, pp. 1849–1868.
32
See article 136 quinquies of the Belgian Criminal Code or the law on
the adaptation of French law to the ICC.
33
Hector Olasolo, Complementarity Analysis of National Sentencing, in
Roelof Haveman and Olaoluwa Olusanya (eds.), Sentencing and Sanctioning
in Supranational Criminal Law, 2006, pp. 37–66 and 40–41.
34
Mireille Delmas-Marty, The Contribution of Comparative Law to a
Pluralist Conception of International Criminal Law, in ‘Journal of International
Criminal Justice,’ 1 (2003), pp. 13–25.
Damien Scalia 241
commission of a murder35 or some offences against holdings.36

Moreover, who has not been surprised by international sentences
of 10 or 12 years imprisonment for the so-called most serious
crimes, when in some States a robbery is punishable by up to 20
years imprisonment? Who has not found it surprising that the
perpetrator of genocide is sentenced to 15 years imprisonment?
There is no measurement allowing us to accurately comprehend
these penalties and the universality so eagerly sought by
international law is, as mentioned above, therefore only illusory.
4. Plurality of penalties in national level
As advocated by Delmas-Marty, there is in international

criminal law a need for a comparative law. She calls this
“hybridization.” In this context, the absence of the universality
of penalties finally appears in the punishment of international
crimes within national legislations. Hence, the observation made
by Doudou Thiam, which I quote in my introduction, is
evidenced by a mere comparison of national criminal laws. In
this contribution, it is impossible to draw a comparison that is
illustrative of all domestic criminal laws (I did so in another
research 37 ). Mention should nevertheless be made of some
symptomatic examples showing the disparities that prevail in the
world in relation to this matter.
The first remark to be noted is that, contrary to the ICC
Statute, most national legislations do not provide a unique
penalty for all offences, but instead specify each of the incurred
penalties for each offence.
35
On 8 February 2012, a person under the age of 18 (at the time of the
events) was sentenced to 15 years imprisonment for murder (he could have
been sentenced to 30 years if he had been over 18 years old).
36
See for example: article 311.9 of the French Criminal Code; articles
130 ff. of the Swiss Criminal Code.
37
Damien Scalia, Du principe de légalité des peines en droit international
pénal, 2011. All information below is published in this research.
In 2009, in several legislations, that have the crime of genocide,

I observed that this is always more severely punished, even
though the same severity can also be applied to other offences.
Despite this severity, it is worth noting that all States do not
punish genocide with life imprisonment. As an example, East Timor
punish genocide by a maximum penalty of 25 years imprisonment,
Costa Rica applies a maximum 35 years imprisonment, while
Colombia punishes it by a maximum of 40 years imprisonment.
Even though each of the States that I studied identically
punish the crime of genocide and crimes against humanity, this
is not universal and some States establish differences between
penalties punishing those two crimes. One such state is Armenia,
which does not mention life imprisonment for crimes against
humanity, but this is the penalty for the crime of genocide.
Moreover, even though the maximum penalty for crimes against
humanity is, in most cases, the same as that for the crime of
genocide, the minimum penalty is often less.38 Is the seriousness of
crimes against humanity inferior to that of the crime of genocide?
Contrary to the first two categories of crimes, more important
differences appear when comparing three other offences: torture,
rape and abuse of the emblem. There is clear evidence that
torture is punishable by life imprisonment under some national
laws (e.g. Canada, Bulgaria and Cambodia), while in others the
relevant penalty is 25 years imprisonment (e.g. Argentina or
Poland), 15 years imprisonment (Armenia) or even 10 years
imprisonment (Bosnia-Herzegovina). The same applies to rape:
some domestic laws punish rape with 20 years imprisonment
(Australia), while other States punish the same offence by a
maximum penalty of up to 6 years (Costa Rica), 10 years (El
Salvador or Italy), 15 years (Russia or Rwanda), life imprisonment
(Ethiopia) or death penalty (Republic of Congo).
The comparison of incurred penalties for abuse of the emblem
(which is a war crime that is punished at the international level)
is also symptomatic of the differences that exist between national
laws. This example is symptomatic, despite of the fact that in
38
Ibid., pp. 233–249.
Damien Scalia 243
some cases the legal provisions specifically mention perfidy or

abuse of the emblem which leads to death or severe damage,
while other legal provisions only mention the abuse of the
emblem without taking into consideration the consequences of
this abuse. The differences in punishment are very important:
from a maximum of 9 months imprisonment in Indonesia, to a
sentencing range of from 6 months to 5 years imprisonment for
Bosnia-Herzegovina, and even 25 years imprisonment for
Slovakia in cases of grave consequences.
These few examples obviously demonstrate that no universal
quantum exists for the punishment of international crimes, be
they as serious as the crime of genocide or less serious crimes
such as the abuse of emblem. Each State remains sovereign as
regards penalty.
5. Conclusion
Despite the fact that there is no uniformity of moral and
philosophical approach justifying a unique punishment system
applicable to all crimes exists in the world, the international
community has established a singular system so as to punish war
crimes, crimes against humanity, crimes of genocide and crimes
of aggression. The criminal tool that has been developed,
however, does not seem to adapt well in this case. As I previously
observed, complications have emerged on the international level:
by establishing the principle that one is facing the most serious
crimes and that they shall all be exemplary and very severely
punished, the international community has deprived itself of the
possibility of really adjusting penalties and creating a consistent
and universal sentencing scale.
Yet this deficit is also a consequence of the practical
impossibility of condemning international crimes: it is impossible
to sentence them proportionally. The principle of proportionality
is directly related to the principle of necessity. These principles
form what Pierrette Poncela calls the juste mesure 39 of the
39
Pierrette Poncela, Droit de la Peine, 2001, p. 41. This expression
could be translated as follows: fair balance.
penalty. 40 Proportionality shall principally be examined in the

relationship between the crime and/or the author of the crime, on
the one hand, and the criminal sanction, on the other hand. 41
Therefore, according to the ‘just deserts’ theory,42 account shall be
taken of caused and anticipated damage, the criminal record of
the accused person and aggravating and mitigating circumstances.43
As regards proportionality, the view that prevails today is that
the penalty shall be fair e.g. linked to the seriousness of the
crime. It has become a “moral blame.” Jeremy B. Bentham
already wrote that the evil of punishment outweighs the advantage
of the offense,44 but it must be commensurate: the greater the
seriousness of the crime, the more we can hazard a severe
penalty.45 Since then, the principle has taken an important place
in modern penology, and this is despite the fact that it is difficult
to clearly determine what a crime shall entail as a sanction.
However, it is unrealistic to believe that it is possible to
proportionally condemn (or appropriately for some authors) 46
persons who have, for example, planned a genocide killing
thousands of people. At this level of criminality, even life
imprisonment would not be proportionate. H. Arendt targeted
this and wrote that “we can neither punish nor forgive such
40
It is worth noting that concerning the case law of the European Court
of Human Rights, necessity is sometimes included in proportionality, and
sometimes it is not. However, it seems quite logical that it is hard for a
measure to be necessary if it is not proportional; see Petr Muzny, La
technique de la proportionnalité et le juge de la Convention européenne des
droits de l’Homme: essai sur un instrument nécessaire dans une société
démocratique, 2005, pp. 183–187. On the other hand, it is possible, contrary
to what this author writes, that a measure is proportional to the crime but not
necessary.
41
Maurice Cusson, Pourquoi Punir?, 1987, pp. 87–88.
42
Pierrette Poncela, Droit de la Peine, 2001, p. 70.
43
Maurice Cusson, Pourquoi Punir?, 1987, pp. 157–169.
44
Jeremy Bentham, Œuvres, Tome 1, 1969, p. 170. (Free translation
provided by the author).
45
Ibid., p. 171.
46
Frederik Harhoff, Sense and Sensibility in Sentencing – Taking Stock
of International Criminal Punishment, in Ola Engdahl and Pal Wrånge (eds.),
Law at War: the Law as It Was and the Law as It Should Be: Liber Amicorum
Ove Bring, 2008.
Damien Scalia 245
offenses.”47 Perhaps persons found guilty should be sentenced to

500, 1000 or 2000 years imprisonment as it is the case in some
States. This would however be purely an illusory symbol. The
proportionality between penalty and crime is in keeping with
“the very disconcerting equivalency law contained in the idea of
compensation;”48 although certain authors question this view, as
Pierrette Poncela suggests.49 The impossibility of proportionality
forms part of the absence of universality, as I observed at the
international level as well as between international and national
levels.
47
Hannah Arendt, The Human Condition, 1958, p. 241.
48
Pierrette Poncela, Droit de la Peine, 2001, p. 60. (Free translation
provided by the author).
49
Ibid., pp. 69–71.
Bibliography
Arendt, Hannah, The Human Condition, The University of Chicago Press,

Chicago, 1958.
Bentham, Jeremy, (Etienne Dumont and Benjamin Laroche (trs.)), Œuvres,
Scienta Verlag Aalen, Brussels, 1969.
Broomhall, Bruce, International Justice and the International Criminal Court:
Between Sovereignty and the Rule of Law, OUP, Oxford, 2004.
Cusson, Maurice, Pourquoi Punir?, Dalloz, Paris, 1987.
D’Ascoli, Silvia, Sentencing in International Criminal Law. The UN ad hoc
Tribunals and Future Perspectives for the ICC, Hart Publishing, London,
2011.
Delmas-Marty Mireille, The ICC and the Interaction of International and
National Legal Systems, in Antonio Cassese, Paola Gaeta and John R. W.
D. Jones (eds.), Statute of the International Criminal Court, OUP,
Oxford, 2002 pp. 1915–1929.
— The Contribution of Comparative Law to a Pluralist Conception of
International Criminal Law, in ‘Journal of International Criminal Justice,’ 1
(2003), pp. 13–25.
Hall, Christopher Keith, The First Proposal for a Permanent International
Criminal Court, in ‘International Review of the Red Cross,’ 322 (1998),
pp. 57–78.
Henzelin, Marc and Robert Roth (eds.), Le droit pénal à l’épreuve de
l’internationalisation, Bruylant, Paris/ Brussels/ Geneva, 2002.
Harhoff, Frederik, Sense and Sensibility in Sentencing – Taking Stock of
International Criminal Punishment, in Ola Engdahl and Pål Wrange
(ed.), Law at War: the Law as It Was and the Law as It Should Be: Liber
Amicorum Ove Bring, Nijhoff, Leiden, 2008, pp. 121–140.
Haveman, Roelof and Olaoluwa Olusanya (ed.), Sentencing and Sanctioning
in Supranational Criminal Law, Intersentia, Antwerp/ Oxford 2006.
Henham, Ralph, Theorizing the Penalty of Sentencing in International
Criminal Trials, ‘Theoretical Criminology,’ 8 (2004), pp. 429–463.
Kolb, Robert and Damien Scalia, Droit international pénal, Helbing &
Lichtenhahn, Basel, 20122.
IMTN, Trial of the Major War Criminals before the International Military
Tribunal, 14 November 1945 – 1st October 1946, Judgment, Nuremberg,
Official Documents, 1947.
Muzny, Petr, La technique de la proportionnalité et le juge de la Convention
européenne des droits de l’Homme: essai sur un instrument nécessaire
dans une société démocratique, PUAM, Aix-en-Provence, 2005.
Olasolo, Hector, Complementarity Analysis of National Sentencing, in Haveman
Roelof and Olaoluwa Olusanya (eds.), Sentencing and Sanctioning in
Supranational Criminal Law, Intersentia, Antwerp/ Oxford, 2006, pp.
37–66.
Olusanya, Olaoluwa, Sentencing War Crimes and Crimes Against Humanity
under the International Criminal Tribunal for the Former Yugoslavia,
Europa Law Publishing, Groningen, 2005.
Damien Scalia 247
— (ed.), Rethinking International Criminal Law, The Substantive Part,

Europa Law Publishing, Groningen, 2007.
Poncela, Pierrette, Droit de la Peine, PUF, Paris, 20012.
Robinson, Darryl, The Rome Statute and its Impact on National Law, in
Cassese Antonio, Gaeta Paola and John R.W.D. Jones (eds.), Statute of
the International Criminal Court, OUP, Oxford, 2002, pp. 1849–1868.
Scalia, Damien, Du principe de légalité des peines en droit international
pénal, Bruylant, Brussels, 2011.
Cristina Hermida del Llano 249
III.
PUNISHMENT AND HUMAN RIGHTS
Cristina Hermida del Llano
The Universality of Human Rights and the Universality

of Punishment
1. Approaching the universality of human rights
Human rights unveil a world in which a common ethic for

all human beings exists, a world in which we become moral
agents. We possess human rights by the very nature of being
human, and not because we are citizens within a specific legal
system, which would imply that legislators create such rights,
decide their content, and recognize them by casting them into
law. Moreover, if legislation is the source of rights, one would
not be able to call such rights universal, as they would not exist
on their own without being guaranteed by a “conventionally
organized force.” 1 This argument, as I see it, allows one to
precisely and conceptually distinguish between the categories of
human rights and fundamental rights.
Rather, human rights or moral rights are the “essence,” the
“justification,” or the “reason” that set into motion and activate
the mechanisms of normative protection for the sake of converting
a particular human right into a fundamental right. In this sense, the
human rights precede the legal norms, while the latter “only serve
as vehicles for the protection of the former.”2 Legal norms are,
therefore, necessary but not sufficient to promote the universality of
human rights in the world, precisely because they serve as means to
the desired end, but do not constitute the goal itself.
If I stress the difference between human rights and fundamental
rights, it is because such a distinction allows us to determine
whether a given legal system betrays these basic moral requirements
1
Andrés Ollero Tassara, ¿Tiene razón el derecho?, 1996, p. 390.
2
Francisco Laporta, Sobre el concepto de derechos humanos, in ‘Revista
Doxa,’ 4 (1987), pp. 26–28.
that we call human rights, and, if so, whether a possible

retribution in the form of a sanction or a punishment is justified.
Thus, human rights constitute “the framework within which it is
possible to criticize the legal norms or institutions of legal law.”3
Verdross 4 dedicated one his last monographs to the topic of
natural law, which he titled “Static and Dynamic Natural Law.”5
One might think that human rights fall within static natural law,
as they draw on principles “that precede positive law and can be
deduced from the natural light of reason.”6 These fundamental
principles are permanent7 and therefore act as the “conscience of
legal law,”8 as it raises human dignity as the foundation for all
human goals. 9 This “critical morality,” as Hart called it, is
derived not just from positive guidelines, but from critical
principles that place moral restraints on the legal system, 10
granting reason to law.11 And this critical morality is called upon
to determine the limits of what the democratic and legitimized
sovereign should do.12
3
Eugenio Bulygin, Sobre el status ontológico de los derechos humanos,
in ‘Doxa. Cuadernos de Filosofía del Derecho,’ 4 (1987), p.79.
4
See Alfred Verdross, Zum Problem der Rechtsunterworfenheit des
Gesetzgebers, in ‘Juristische Blatter,’ 45 (1916), pp. 471–483, new edition in
Hans Richard Klecatsky, René Marcic and Herbert Schambeck (eds.), Die
Wiener Rechtstheoretische Schule, Vol. 2, 1968, pp. 1545 ss.; Alfred Verdross,
Primäres Naturrecht, Sekundäres Naturrecht und positives Recht in der
christlichen Rechtsphilosophie, in Vv.Aa., Jus et Lex. Festgabe zum 70.
Geburtstag von Max Gutzwiller, 1959, pp. 447 ff., new edition in Hans
Richard Klecatsky, René Marcic and Herbert Schambeck (eds.), Die Wiener
Rechtstheoretische Schule, Vol. 1, 1968, pp. 787 ff. And also, Alfred Verdross,
Dynamisches Naturrecht, in ‘Forum XII/137,’ (Mayo 1965), pp. 223 ff., new
edition in Hans Richard Klecatsky, René Marcic and Herbert Schambeck
(eds.), Die Wiener Rechtstheoretische Schule, Vol. 1, 1968, pp. 933 ff.
5
Alfred Verdross, Statisches und dynamisches Naturrecht, 1971.
6
See ibid., p. 9.
7
See ibid., p. 116.
8
See ibid., p. 114.
9
See ibid., p. 117.
10
Francisco Laporta, Entre el Derecho y la Moral, 19931, 19952, pp.
52–53.
11
Andrés Ollero Tassara, ¿Tiene razón el derecho?, 1996.
12
Bogusław Banaszak and Mariusz Jabłoński, Das Naturrecht in der
Polnischen Verfassung vom 2. April 1997, in Rudolf Weiler (ed.), Die
From Mill to Hart to Dworkin, 13 the idea exists of moral

limits that laws cannot transgress, even when the majority of
society supports such laws; rights, therefore, are the triumph
over the majority. The mere fact that the majority approves a
legal norm does not justify the norm’s content nor its reach in
moral terms. “Legal power is legitimized not only by its origins
in consent, but also by not violating the limits that bound an
area delineated by moral guidelines and criteria.” 14 As
emphasised by Schambeck, the violation of human rights
occurs not only due to the wrong interpretation of basic rights,
but is also caused by bad political decisions in the social and
economic arena.15
The holder of a subjective right must always be able to
generate the creation of an individual norm that prescribes the
execution of a sanction against someone who does not fulfil his
obligation to respect that right,16 that is, against a subject who
violates legally protected interests. There is no point in attributing
rights to individuals if such attribution is not adequately enforced.17
Thus, while human rights are defined by the characteristics of
universality, fundamentality in their objectives, generality, moral
validity, and priority before positive law, according to the
arguments of Alexy,18 fundamental rights are, in turn, characterized
Wiederkehr des Naturrechts und die Neuevangelisierung Europas, 2005,

p. 220.
13
See Albert Calsamiglia, Ensayo sobre Dworkin. Introducción a R.
Dworkin, Los Derechos en serio, 1985, p. 17.
14
See ibid., p. 51.
15
Herbert Schambeck, Derecho Natural en la era de la responsabilidad,
in ‘Revista Persona y Derecho,’ 62 (2010), pp. 153–179.
16
See Hans Kelsen, El concepto de habilitación: distintos significados
de esta palabra. El “derecho en el sentido subjetivo,” in Hans Kelsen, Teoría
General de las Normas, 1994, pp. 142–143.
17
Hans Kelsen, Teoría General del Derecho y del Estado, 1969, p. 94.
See Mario G. Losano, La nozione di sistema giuridico in Hans Kelsen, in
‘Amaliensträssler Heft,’ 4 (1998).
18
Robert Alexy, Sobre el desarrollo de los derechos humanos y
fundamentales en Alemania, in ‘Diálogo Científico,’ 11 (2002), pp. 15–16.
See Francisco Laporta, Sobre el concepto de derechos humanos, in ‘Revista
Doxa,,’ 4 (1987), pp. 32–44.
by the way in which they are protected legally,19 as evidenced

by the English phrase “if there is no remedy, there is no right.”
The rights are worth what their judicial guarantees are worth.20
Since the approval of the Universal Declaration of Human
Rights by the United Nations’ General Assembly on December
10, 1948, 21 a great number of international legal instruments
have emerged that legally bind States to protect human rights,
such that the international responsibility and jurisdiction in these
matters is becoming more and more established. This international
declaration highlighted not only the importance of providing a
foundation for rights, specifically in the content of its Preamble,
but also, for the first time, we find an international legal norm
that underlines the equal dignity among human beings and the
equality of rights to freely develop one’s personality, “thereby
prohibiting interpersonal relationships of dominance, which are
hallmarks of the social model across the entire planet.”22
2. The globalisation of punishment through the International

Criminal Court
In the 20th century, the international community finally

reached a consensus on defining genocide, crimes against humanity
and war crimes, and, therefore, created a permanent international
court to judge such crimes. The International Criminal Court
19
See Gregorio Robles Morchón, Los derechos fundamentales y la ética
en la sociedad actual, 1992, pp. 19–23.
20
Alberto López Basaguren, Comunidad Europea, integración de
ordenamientos y pluralidad de jurisdicciones en la protección de los
derechos fundamentales, in Javier Corcuera Atienza (ed.), La protección de
los derechos fundamentales en la Unión Europea, 2002, p. 121.
21
Aurelio De Prada, Un doble y único aniversario: el nuestro. A
propósito de la Declaración Universal de Derechos Humanos y Mayo del 68,
in ‘Persona y Derecho,’ 59 (2008), pp. 357–376, also published in Gregorio
Robles Morchón and Diego Medina Morales, Ensayos sobre el derecho y la
justicia. Libro Homenaje a Ana Cebeira Moro, 2009, pp. 223–246.
22
Eva Martínez Sampere, La universalidad de los derechos humanos, in
‘Thémata. Revista de Filosofía,’ 39 (2007), p. 66.
(ICC) is, therefore, part of the globalisation process,23 removing

certain matters from the jurisdiction of national states, such as
human rights, fully conscious of the fact that these are neither
recognised nor guaranteed in today’s societies, nor are the
appropriate punishments recognised or guaranteed when rights
are violated.
In contrast, the Nuremberg and Tokyo trials, which
addressed war crimes, crimes against peace, and crimes against
humanity committed during the Second World War, were
temporary. To the victors went not only the spoils of war, but
also the right to judge and punish the vanquished. Only in
hindsight, some fifty years later with the permanent institution
of the ICC, did such trials gain legitimacy. The legitimacy of
such trials is undermined only by the fact that one of the
victorious states still fails, to this day, to recognize the ICC. Yet
the impunity of state authorities has been rejected by numerous
international instruments in the intervening time span; these
include, among others, Article 3 of the Project of a Legal Treaty
in Matters of Crimes against Peace and Security of Humanity
(1954); Article 7 (2) of the Statute of the International Tribunal
for the former Yugoslavia (1993), Article 6 (2) of the Statute of
the International Tribunal for Ruanda (1994); and Article 7 of
the Project of a Legal Treaty in Matters of Crimes against Peace
and Security of Humanity (1996).
The Cold War had been used as an excuse to justify the
violation of human rights as a by-product of the ideological
battle between enemy States and governments. But, as the Cold
War ended in the 1990s, tribunals such as the International
Criminal Tribunal for the former Yugoslavia or the Tribunal for
Rwanda became the result of international consensus: crimes
against humanity should not go unpunished. These, however,
were limited in their jurisdiction, both in regards to the conflicts
and the timeframe in which alleged crimes were committed. An
23
Yash Ghai, La globalización y la política de Derechos, in Cynthia
Hwitt and Alberto Minujin (eds.), Globalización y Derechos Humanos, 1999;
Boaventura de Sousa Santos, La globalización del Derecho, 1999.
independent, permanent criminal court was still needed. On 17

July 1998, 120 States adopted the Rome Statute, which would
establish a permanent International Criminal Court upon ratification.
The Rome Statute entered into force on 1 July 2002 after
ratification by 60 countries. As the very Preamble to the Rome
Statute declares, the international community is “[d]etermined to
put an end to impunity for the perpetrators of these crimes and
thus to contribute to the prevention of such crimes.” The
establishment of the Tribunal has proved to be a great advance
in International Law. The fact that the jurisdiction of the
Tribunal extends also to particular or natural persons, implying
the Tribunal’s responsibility to punish individuals, not just
States, as can be deduced from Article 25 of the Statute is
particularly meaningful. On several occasions, the Security
Council of the United Nations has invoked this principle to try
to bring the parties responsible for transgressions in Burundi and
Somalia to justice. In both cases, the Council recalled, “all
persons who commit or authorise the commission of serious
violations of international humanitarian law are individually
responsible for such violations.”
The fight against impunity, the essential objective of the
International Court, is complemented by the normative consecration
of crimes. For the first time in history, humanity has a legal
codex, if one can call it that way, governing international
criminal law. The material jurisdiction of the Court is limited to
four areas, namely the crimes of genocide, 24 crimes against
humanity,25 war crimes 26 and the crime of aggression that are
defined by various punishable acts.
Keeping in mind that the crimes that fall under the jurisdiction
of the Court refer not only to internal or transnational armed
conflicts, but also to situations encountered during the regular
exercise of power by State governments, we realise that the
Court constitutes a legitimized institution to punish, coerce, and
24
See Article 6.
25
See Article 7.
26
See Article 8.
compel states and individuals to respect human rights, that is, in

case of violation of International Humanitarian Law or of human
rights. Numerous international treaties and agreements cover
such rights, whether the times be of war or not, and the Court is
in charge with their enforcement.
Now, such an interpretation clashes with the concept that a
“violation of human rights” can only be committed by the
actions of the State and state authorities. The argument for such
a view rests in the consideration that it is the responsibility of
the State to protect human rights, and, as such, only the State
can violate them. This is the line of thinking followed, for
example, by the Inter-American Commission on Human Rights:
“The entire system of protection of human rights is designed
based on recognising the State as the subject of the basic legal
relationship in matters of human rights, and it is against the
State that suit can be filed when the rights recognised by the
Convention have been violated.” From this point of view, the
premise that subversive or terrorist groups could violate human
rights would be tantamount to conferring a certain legitimacy to
such groups, which would add to the contradiction that such
groups, by their very nature and illegal behaviours, inherently do
violate such rights. Moreover, as the Attorney General for
Human Rights maintains, legitimizing such groups would lead
to “legal feudalism,” in which citizens would have to search for
the group that offers better guarantees to protect their human
rights, and select one or the other. No one is unaware of the fact
that this would necessarily lead to the inequality of citizens
before the law; the destruction of the rule of law, the
denaturalization itself of the concept of human rights, and the
rapid slide towards barbarism.”27
The Court’s founder at the Rome Conference adopted a
reasoning that turns out to be less problematic, which is
supported by official documents of the United Nations, and
27
Álvaro Mendoza Palomino, La Corte Penal Internacional y la impunidad,
Universidad Militar Nueva Granada, Bogotá (Colombia), 2001.
distinguishes between violations and crimes. The former pertain

to the State and the latter pertain to individuals, who can be
agents or not of the State. To summarise, only individuals can
commit crimes, and only the State can commit violations. This
is the spirit of Article 4 of the Convention on the Prevention and
Punishment of the Crime of Genocide:28 “Persons committing
genocide or any of the other acts enumerated in article III
(Genocide; Conspiracy to commit genocide; Direct and public
incitement to commit genocide; Attempt to commit genocide;
Complicity in genocide) shall be punished, whether they are
constitutionally responsible rulers, public officials or private
individuals.”
The preceding clarification supports the argument that
crimes against humanity, which offend and ignore human rights,
are not restricted to territorial limits by being directed towards
the population of one nation, but matter to all humanity. From
this perspective, such crimes are an affront to all. This, in truth,
is the spirit and justification underlying the creation of the
Tribunal: the protection of humanity, as one can read in the
Statute’s preamble, which reminds us to be “mindful that during
this century millions of children, women and men have been
victims of unimaginable atrocities that deeply shock the
conscience of humanity.” The Statute of Rome seems to be
guided strongly by the feelings of aversion to and rejection of
the so-called crimes against humanity, even though it later
describes them more neutrally as “the most serious crimes of
concern to the international community as a whole” (Art. 5) or
“for the most serious crimes of international concern” (Art. 1).
These crimes transcend national boundaries and wound
humanitarian sentiment around the world. The objective, in legal
terms, is to protect the “feeling of universal brotherhood” by
punishing or sanctioning offenders.
28
Approved and proposed for signature and ratification or accession by
General Assembly resolution 260 A (III) of 9 December 1948. Entry into
force: 12 January 1951, in accordance with article XIII.
The desire to break the cycle of impunity for the most

serious and aberrant violations against human dignity is reaffirmed
by the provisions concerning the Court’s jurisdiction. A suit can
be brought before the Court by States adhering to the Statute or
by the Security Council. The latter possibility allows the Court
to investigate and judge crimes within its jurisdiction, even if the
State involved is not a signatory. Under title VII of the charter,
the Security Council’s role reflects the belief on the part of the
signatories that the punishment of crimes against humanity is
directly connected to peace and international security – and as it
is the Security Council’s role to uphold them, it should play an
active role in bringing matters to the Court’s attention.
In addition, the Prosecutor can initiate an investigation. This
last provision constitutes one of the most important victories
achieved in Rome. Indeed, complaints from the most varied
sources can lead to investigations. In accordance with article 15
of the Statute, “The Prosecutor may initiate investigations motu
proprio on the basis of information on crimes within the
jurisdiction of the Court.” With this provision, the non-signatory
States, non-governmental organizations, the victims of such
crimes, organizations and concerned individuals can summon
the Prosecutor to intervene and start a preliminary investigation.
This avenue signifies a departure from the principle of exclusive
application of such instruments to the States that have ratified
the International Treaties, which reduces the claim to State
sovereignty in matters of crimes against humanity. On the other
hand, the authors of such crimes are placed into the spotlight not
only of the States and government institutions, but also of their
peers across the world. Undoubtedly, it is a provision that affirms
the independence of the Court, removing it from any political
manipulation by States or governments, which was seen as the
principle source of impunity in such matters.
Nonetheless, one cannot say that the Rome Statute completely
eliminates the State’s interests in such matters. In fact, the same
article 15 establishes that the Prosecutor needs the authorisation
from the Pre-Trial Chamber to start a formal investigation. On
the other hand, it is clear that the Court plays a complementary
role to national courts, and, in this sense, can only exercise

jurisdiction when the State is unwilling or unable to genuinely
carry out the investigation or prosecution and bring the
perpetrators to justice, according to article 17. The statutes do
not rule out that once the States have been informed that they
have jurisdiction on a particular case they can then take relevant
actions and thereby remove the case from the purview of the
Court. Such provisions might appear to be a resort for States to
preserve their sovereign power to punish. To many, this poses
an obstacle to those in pursuit of the perpetrators of crimes
against humanity, even more so when these are governmental
authorities. However, the aim and spirit of the Statute is not to
allow the States to evade their responsibilities. Article 17
implies that the Court must investigate whether there is, or there
is not, a covert intent to shield the accused individual/s from
criminal responsibility for the crimes that are covered by the
Court, by asserting State jurisdiction. Therefore, the determination
to effectively prosecute and punish these crimes is preserved.
Based on all of the above points, we can conclude that the
Statute of the International Criminal Court directs International
Law towards the firm commitment to uphold the rule of law
over force – we should not forget that the respect for
fundamental rights and the punishments meted out for their
violation lie in the hands of the powerful, while human rights
rests on the power of morality.29
29
Hans Küng, Proyecto de una ética mundial, 1991; José M. Pureza,
¿Derecho cosmopolita o uniformador? Derechos humanos, Estado de
Derecho y Democracia en la posguerra fría, in Antonio E. Pérez Luño (ed.),
Derechos Humanos y Constitucionalismo ante el Tercer Milenio, 1996.
Bibliography
Alexy, Robert, Sobre el desarrollo de los derechos humanos y fundamentales

en Alemania, in ‘Diálogo Científico,’ 11 (2002), pp. 13–25.
Banaszak, Bogusław and Mariusz Jabłoński, Das Naturrecht in der Polnischen
Verfassung vom 2. April 1997, in Rudolf Weiler (ed.), Die Wiederkehr des
Naturrechts und die Neuevangelisierung Europas, Böhlau, Wien, 2005.
Bulygin, Eugenio, Sobre el status ontológico de los derechos humanos, in
‘Doxa. Cuadernos de Filosofía del Derecho,’ 4 (1987), pp. 79–84.
Calsamiglia, Albert, (Marta Guastavino (tr.)), Ensayo sobre Dworkin. Introducción
a R. Dworkin, Los Derechos en serio, Ariel, Barcelona, 1985.
Dworkin, Ronald, (Marta Guastavino (tr.)), Los Derechos en serio, Ariel,
Barcelona, 1985.
Ghai, Yash, La globalización y la política de Derechos, in Cynthia Hwitt and
Alberto Minujin (eds.), Globalización y Derechos Humanos, Santillana,
Bogotá, 1999.
Laporta, Francisco, Sobre el concepto de derechos humanos, in ‘Revista
Doxa,’ 4 (1987), pp. 47–66.
— Entre el Derecho y la Moral, Fontamara, México D.F., 19931, 19952.
López Basaguren, Alberto, Comunidad Europea, integración de ordenamientos y
pluralidad de jurisdicciones en la protección de los derechos fundamentales,
in Javier Corcuera Atienza (ed.), La protección de los derechos
fundamentales en la Unión Europea, Dykinson, Madrid, 2002.
Losano, Mario G., La nozione di sistema giuridico in Hans Kelsen, Cuesp,
Milano, 1998.
Martínez Sampere, Eva, La universalidad de los derechos humanos, in
‘Thémata. Revista de Filosofía,’ 39 (2007), pp. 65–70.
Mendoza Palomino, Álvaro, La Corte Penal Internacional y la impunidad,
Universidad Militar Nueva Granada, Bogotá (Colombia), 2001.
Ollero Tassara, Andrés, ¿Tiene razón el derecho? Entre método científico y
voluntad política, Publicaciones del Congreso de los Diputados, Madrid,
1996.
Robles Morchón, Gregorio, Los derechos fundamentales y la ética en la
sociedad actual, Cuadernos Civitas, Madrid, 1992.
Kelsen, Hans, (Hugo Carlos Delory Jacobs and Juan Federico Arriola (trs.)),
El concepto de habilitación: distintos significados de esta palabra. El
“derecho en el sentido subjetivo,” in Hans Kelsen, Teoría General de
las Normas, Ed. Trillas, México D.F., 1994.
— (Eduardo García Máynez (tr.)), Teoría General del Derecho y del
Estado, UNAM, México, 1969.
Küng, Hans, (Gilberto Canal Marcos (tr.)), Proyecto de una ética mundial,
Trotta, Madrid, 1991.
Pureza, José Manuel, ¿Derecho cosmopolita o uniformador? Derechos humanos,
Estado de Derecho y Democracia en la posguerra fría, in Antonio
Enrique Pérez Luño (ed.), Derechos Humanos y Constitucionalismo
ante el Tercer Milenio, Marcial Pons, Madrid, 1996.
Prada, Aurelio De, Un doble y único aniversario: el nuestro. A propósito de

la Declaración Universal de Derechos Humanos y Mayo del 68, in
‘Persona y Derecho,’ 59 (2008), pp. 357–376; also published in
Gregorio Robles Morchón and Diego Medina Morales, Ensayos sobre el
derecho y la justicia. Libro Homenaje a Ana Cebeira Moro, Editorial
SFD, Córdoba, 2009, pp. 223–246.
Schambeck, Herbert, (Cristina Hermida del Llano (tr.)), Derecho Natural en
la era de la responsabilidad, in ‘Revista Persona y Derecho,’ 62 (2010),
pp. 153–179.
Sousa Santos, Boaventura de, La globalización del Derecho, ILSA, Bogotá,
1999.
Verdross, Alfred, Zum Problem der Rechtsunterworfenheit des Gesetzgebers,
in ‘Juristische Blatter,’ 45 (1916), pp. 471–483; new edition in Hans
Richard Klecatsky, René Marcic and Herbert Schambeck (eds.), Die
Wiener Rechtstheoretische Schule, Vol. 2, Verlag Österreich, Wien,
1968.
— Primäres Naturrecht, Sekundäres Naturrecht und positives Recht in der
christlichen Rechtsphilosophie, in Vv. Aa., Jus et Lex. Festgabe zum 70.
Geburtstag von Max Gutzwiller, Helbing & Lichtenhahn, Basel, 1959,
pp. 447–455; new edition in Hans Richard Klecatsky, Renè Marcic and
Herbert Schambeck (eds.), Die Wiener Rechtstheoretische Schule, Vol.
1, Verlag Österreich, Wien, 1968.
— Dynamisches Naturrecht, in ‘Forum XII/137,’ (Mayo 1965); new edition
in Hans Richard Klecatsky, Renè Marcic and Herbert Schambeck (eds.),
Die Wiener Rechtstheoretische Schule, Vol. 1, Verlag Österreich, Wien,
1968.
— Statisches und dynamisches Naturrecht, Rombach, Freiburg i. Br, 1971.
Antonio Incampo 263
Antonio Incampo
Don’t Kill Cain —

Towards a Theory of Mesofacts and Punishments
1. Kantian ideas of a universal history
“History […] allows us to hope that […] what strikes us in

the actions of individuals as confused and fortuitous may be
recognised, in the history of the entire species, as a steadily
advancing but slow development of man’s original capacities.”1
This is Kant’s idea of the steady development of history. The
fragmentary and conflicting events of humanity do not stray far
from the main path of their ideal unity. Not only. This process,
which unites the many in the one, is not accessible to the
individual’s will, but proceeds ineluctably well beyond the
partial discussions and attempts to resist it. “Individual men and
even entire nations – writes Kant – little imagine that, while they
are pursuing their own ends, each in his own way and often in
opposition to others, they are unwittingly guided in their advance
along a course intended by nature. They are unconsciously
promoting an end which, even if they knew what it was, would
scarcely arouse their interest.”2
A theory of mesofacts seeks to comprehend this long course
of history and to separate some phenomena from others in order
to discover which results are more important for human reason. I
shall present here a few elements in the light of a fundamental
question in criminal law.
1
Immanuel Kant, Idea for a Universal History with a Cosmopolitan
Purpose, in Id., Political Writings, 2003, p. 41.
2
Ibid.
2. What are mesofacts?
There are things that never change, like the fact that humans
are bipedal, and others, instead, that change rapidly, like the
value of financial products on the futures market. And then there
are facts that evolve slowly without our realising it. I don’t
perceive, for example, the climactic changes of the earth, even
though every day I distinctly feel the heat or the cold when I go
outside. More than facts, the slow changes in the earth’s climate
are mesofacts. In other words, they lie in-between almost
instantaneous changes and that which stays the same over time.
2.1. Things that never change
The world is full of objects that don’t change. Even

ephemeral things last: Neolithic buttons, earrings, necklaces still
today can leave their designs to a Parisian jeweller in Place
Vendôme. Indeed, they seem like metaphysical invariables or
ideal entities in arithmetic or geometry.
In the wake of the immutable, there are also many rules of
social conduct. Take the promise, for example. As Kant explains,
promising always implies an obligation to fulfil the promise.3
Each time someone promises something, s/he knows well that
there is an obligation toward the person promised. Just as the
person who receives the promise always expects its fulfilment.
The same happens with essentialia negotii. In the case of buying
and selling, the two parts are essential, together with the double
object (the thing and the price) and the agreement. Buying and
selling would make no sense without the obligation of essential
effects: delivery of the thing and payment of the price. These
have always been unalterable facts of social reality, ever since
people began to make promises or to buy and sell things.
3
I refer, in particular, to Immanuel Kant’s Grundlegung zur Metaphysik
der Sitten, in: Kant’s gesammelte Schriften, 1903, p. 422.
Antonio Incampo 265
2.2. Things that always change
Then there are things that are very changeable. While

antique ornaments may last, hyper-technological products, instead,
change very rapidly. First generation computers would be
unrecognisable in today’s IT world. Likewise, the stability of
stocks and bonds on financial markets is completely evanescent.
Not to mention all the thoughts that whirl around in my head.
There are days when not a single idea has any fixity in my mind.
Cratylus, even more than Heraclitus, was right when he affirmed
that you cannot step even once into the same stream.
2.3. Things that change over time, or mesofacts
On another side we find a different set of facts. Not the

simple result of an action or actions, like a goal in a soccer game.
Here what matters is duration. Since time immemorial, for
example, humanity has had consciousness of life and death. Not
in a matter of hours, but over a long period of time. Nor are
certain passages dictated by chance, as if to say, “It was by
chance that, at a certain point in my life, I took my first steps.”
Facts like these spring from broad changes in history that go far
beyond the life of an individual before arriving at invariable
results. Precisely because they haven’t always existed, nor do
they measure the brief time of a simple action, we can call them
“mesofacts.” They resemble, in a way, the great cathedrals of the
11th and 12th century. Works were financed whose construction
would take hundreds, if not thousands, of years. Their final form
was not necessarily planned by their architects, or master
builders, but complied with an internal movement all of its own.
The advent of a Gothic style, for example, came about through a
mixture of Romanesque and Norman elements, without the
defining vision of a specific architectural project.
The same happens in the macro-history of legal forms. We
didn’t pass from mute acts to acts articulated by language at a
precise moment in history, but after much experience and a long
internal transformation of juridical relations. This is the case

with the passage from bartering to consensual exchange to
selling.4 In concluding a negotiation, the bare, material elements
diminished over time and were replaced by more articulated
linguistic ones. Not by chance, the Napoleonic Code (including
French law in the 20th century, as well as many current projects
for reforming the code in the same legal areas), as the basis of
the European tradition of Civil Law, together with the Sale of
Goods Act in England, have sanctioned definitively, in the
theory of buying and selling transactions, the primary value of
consent with regard to other essential elements, like paying the
price and delivering the goods.
The passage, therefore, from a mute and non-lexical to a
written and lexical form in legal transactions is more than just a
fact in the archaeology of law. For some deeds it is possible to
date their origin, for others it is not. We can, for example,
establish the origin of the holograph or the lease, but not the
rental contract or warrant. As Rodolfo Sacco writes: “the non-
negotiating deed is archaic, negotiation is modern. Just as
custom (the mute source of law) is archaic (but survives) and the
law is modern.”5 In the middle we find a slow but constant progress.
Now let’s turn from the law to rights. Between the 17th and
18th centuries certain fundamental rights began to crystallise, here
too at the end of a long history, the roots of which probably lie in
the fertile ground of the ancient Socratic idea of the psyche. From
the Bill of Rights (1689) to the Declaration of Independence (1776)
4
“The scansion of brief periods of time – writes Paolo Grossi – does not
suit the Law; large trees need a long time to take root deeply.” (Prima lezione
di diritto, 2004, p. 22, English translation by the author). In line with the
notion of “long duration,” Grossi observes that the institution of buying and
selling (Art. 1470 of the Italian Codice civile, Book IV) is clearly not the
invention of our legislators, but the product of an immemorial and
knowledgeable tradition comprised of magistrates’ verdicts, notaries’ inventions,
legal scholars’ doctrines, inspired by continuous and typical social practices.
The extraordinary laboratories of these initial legal forms date back to the first
groups of humans united in a society. Cf. Ibid., pp. 30–31.
5
Rodolfo Sacco, Antropologia giuridica. Contributo ad una macro-
storia del diritto, 2007, p. 307. English translation by the author.
Antonio Incampo 267
in America, the rights of a specific category of persons (“free”

Englishmen in this case) have come to be recognised as the
universal rights of all mankind. The Déclaration des droits de
l’homme et du citoyen (1789) in France speaks of “droits de
l’homme,” using Jean Jacques Rousseau’s expression in the
Contrat social (1762). How did we achieve this goal? Certainly
not in an instant. Before human rights became “self evident”
philosophical ideas, legal traditions and revolutionary politics
had to be assimilated in a specific collective experience that
went beyond a purely theoretical discussion of principles.
Values are acquired through experience. The abstract plane
of reason is not enough. Rather, they are the result of a long
history, both public and private, founded on the autonomy of
every single individual and the concrete life experience of each
and every one of us. The means of attaining such values
demonstrate this too. Many of the new ways of feeling and the
new perceptions derive emblematically from the literary genre
of the epistolary novel, which recounts facts of everyday life.
Thanks to literature, a common feeling is formed beyond the
bounds of social classes or groups. Rousseau’s Julie ou la
Nouvelle Héloïse (1761), for example, doesn’t mention the “rights
of man,” yet the themes of the novel deal with passion, love and
virtue; and, even though the novel’s characters are humble,
everyone can identify with them, giving rise to the best way of
assimilating the idea of equality. Rousseau’s novel was anticipated
by two novels by the English writer Samuel Richardson – Pamela,
or Virtue Rewarded (1740) and Clarissa, or the History of a Young
Lady (1747–1748) – which served as literary models.
3. Why it is not enough to discuss the abolition of the death

penalty. Three inadequate arguments
The Universal Declaration of Human Rights (1948) represents

a culminating point in this process.6 Just as we don’t doubt the
6
The “declarations” of human rights, especially since the end of the 18th
century, mark the most obvious stages in a long process that has been
trigonometric identities in right-angled triangles, so we no

longer need to discuss gender equality or the ban on slavery, nor
do we doubt the unsustainability of all racial discrimination,
colonialism or imperialism, or of any political system denying
fundamental civil liberties, or trials based on torture. Yet there
are some rights that are still evolving, that are still awaiting
complete disclosure. And this will be a decisive passage from
the perspective of mesofacts. The legal and ethical questions
concerning the death penalty are truly an emblematic test.
Indeed, to the extent that many abolitionist arguments seem
inadequate, an inverse process is gaining ground, which aims to
make capital punishment illegitimate, as in those cases in which
history counts more than simple ideas.7
I shall discuss three classic arguments concerning the
abolition of the death penalty in order to demonstrate, on the one
hand, their inadequacy, and on the other, the fruitfulness of an
alternative theoretical model based, above all, on mesofacts.
3.1. Deterrence
There is an initial argument that we can call “deterrence.”

This is Cesare Beccaria’s famous thesis in Dei delitti e delle
pene (1764). Capital punishment serves no purpose. In choosing,
a sure-fire punishment works much better than a cruel one, just
as the subjective extension of punishment dissuades more than
its objective intensity.
maturing over the centuries. For an excellent reconstruction of the dialectic

between these declarations and the autonomous capacity to recognise what is
“no longer acceptable,” see, among others, Lynn Hunt, Inventing Human
Rights. A History, 2007.
7
Following the reintroduction of the death penalty in Italy in 1926,
Vincenzo Manzini observed: “The arguments adduced for and against the
death penalty are not […] rationally decisive in either sense […].” He added
that the 1926 law was a test “to demonstrate practically all the fatuity of the
sophisms of those philosophers who claim to demonstrate the ineffectiveness
of the death penalty.” (Istituzioni di diritto penale italiano, 1935, pp. 212 ff.,
English translation by the author).
Antonio Incampo 269
But is this really the case? The deterrence argument, measured

in terms of the costs/benefits that dictate the offender’s choice, is
either completely irrelevant, as in the case of crimes of passion, or
else it doesn’t fully explain the function of punishments that can
ensure both their own application and severity. In crimes of passion
the offender doesn’t calculate algebraically their utility; whoever
commits such a crime normally lacks lucidity and so doesn’t choose
on the basis of pondering the exact positive and negative
consequences. Nor can we take for granted that the objective
intensity of the punishment will discourage, once and for all,
criminal intent. In other words, where it is unlikely that someone
who doesn’t respect the law will evade punishment, the threat of the
death penalty will always be a valid deterrent. We can see this in
the powerful criminal organisations that obtain, through the pure
exercise of force, an extraordinary compliance with their codes.
There is a further observation to be made. The deterrence
argument reduces punishment to a mere function of intimidation,
neglecting its fundamental nexus with justice. It expresses what is
useful, not what is just. Then again, if we were to reason only in
view of the means for reducing the number of crimes, we would
have to punish more severely those crimes which are statistically
more frequent: from traffic violations to the many crimes against
property, tax evasion and so on. In actual fact, those who invoke
the death penalty ask for it, first and foremost, because it is just,
according to a criterion of equivalence. We all receive what we
have given, both for good and for evil. This is just punishment,
according to Plato’s Nomoi, Kant’s Metaphysik der Sitten, Hegel’s
Enzyklopädie, Rousseau’s Contrat Social, Filangeri’s Scienza della
legislazione (the major work of political philosophy in Italy in the
second half of the 18th century). Even Thomas Aquinas recognises
the death penalty as a just measure for the State: “If taking away a
member is good for the health of the whole human body […] it
is commendable and wholesome to do so.”8
8
“[…] Pertinet praecidere membrum putridum quando ei commissa
fuerit cura salutis totius corporis:” Thomas Aquinas, Summa Theologiae, II-II,
q. 64, art. 2.
To this we can add the real expectation of justice in

historically determined situations. For example, it would have
been difficult for Saddam Hussein’s trial in the Supreme Iraqi
Criminal Tribunal to conclude with anything other than capital
punishment. In the hellish situation in Baghdad and Bassora, any
criticism of the penal justice system of the victors would have
compromised the victims’ sense of criminal justice. Iraq is still
today a country where human life has little or no value, after
decades of executions. A sentence other than the death penalty,
for the atrocities committed by Hussein’s bloody regime, would
have been impracticable in the face of Iraqi public opinion. Then
again, no one could ignore the “non-abolitionist” orientation of
the USA which controlled, and indeed still controls, Iraqi public
institutions.9
3.2. Irreparable event
A second argument is the irreparable nature of the

punishment. In the face of capital punishment, a judicial error –
it is said – would be irreversible. A trial in itself is not immune
to error. Indeed, uncertainty is often a requisite both at the
beginning and the end of a trial. So, in the case of error, the
execution of the sentence could no longer restore what had been
taken away.
Yet here too there are some doubts. Application of the death
penalty would not always be illegitimate. For example, it would
not be so in all those cases in which responsibility is ascertained
in a rigorous manner “beyond any reasonable doubt,” to cite not
just an important principle in Article 533 of the Italian Codice di
procedura penale (often interpreted in a not very peremptory
9
On the inevitability of the death penalty for the Iraqi dictator, see the
article by Massimo Donini, La condanna a morte di Saddam Hussein.
Riflessioni sul divieto di pena capitale e sulla ‘necessaria sproporzione’ della
pena nelle gross violations, in ‘Diritti umani e diritto internazionale,’ (1)
2007, pp. 343–367.
Antonio Incampo 271
manner), but also the concrete situations in which the alleged

facts are indisputable. Just think of a crime carried out in public
with many witnesses, and even admitted by the offender. This is
the case, for example, of the regicide of King Umberto I of
Savoy by the anarchist Gaetano Bresci, or the attempted
assassination of Pope John Paul II by Mehmet Ali Ağca. Not to
mention, yet again, the crimes imputed to Saddam Hussein,
despite the serious violations of the right to a fair trial during the
historic event in Baghdad.
In reality, every punishment is irreparable with regard to its
consequences. There is no way to compensate the victim of an
unjust condemnation. The punishment that deprives someone of
their liberty is irremediable; even the suspicion generated by the
mere fact of being accused without a motive is incorrigible.
Affirming the unsustainability of the penal system because of its
fallibility would be the same as prohibiting medical examinations
because erroneous diagnoses putting the patients’ lives at risk
are indeed possible.
3.3. Redemption
And finally (in a rapid overview of the main arguments),

there is the “redemption” argument. If the modern theory of
punishment aims at re-education, the death penalty excludes a
priori any corrective feature of the punishment. In taking the life
of the offender, s/he can longer be re-educated, obviously.
Here too we can make a few observations. What is meant by
“re-education”? As a psycho-pedagogical programme it would
only work for juvenile delinquents. It wouldn’t make sense for
older criminals, nor for those who were firmly convinced of an
alternative system of values. Just think of the demonic determination
of Adolf Hitler in pursuing the extermination of Jews. Moreover,
there are many cases of repeat offenders of serious crimes like
murder, who were let out of prison because they had served their
time, because they were pardoned or because they escaped. Nor
should we forget, in considering an ideology of prison re-
education, the macabre motto above the entrance to Auschwitz,

“Arbeit macht frei,” as testimony to the anguishing risk behind
the redemptive function of punishment, a risk which Michel
Foucault understood perfectly well in his “micro-physics of
power.”
However, “re-education” could also mean “expiation.” Expiation
is feeling the weight of responsibility for one’s actions and
recognising the evil perpetrated by them. Yet, if this is the case,
even the death penalty has a redemptive efficacy. We just need
to read some past accounts.
4. Theoretical nature of mesofacts
So what can we add? I shall return to method: when the

method changes, the conclusions sometimes change too. In the
field of human rights, the “experience of consciousness”
[Erfahrung des Bewußtseins] – to cite Hegel’s phenomenology –
should not be undervalued. Many rights, as we have seen, were
gained through experience rather than through sufficiently robust
theories. Just as, thanks to experience, and without the abstract
reflection of reason, I matured inwardly the absolute value of
Klee’s paintings inspired by Johannes Itten’s colour sphere,
abandoning the naïve conviction that my childhood doodles were
superior. It would be hard for me to return to my earlier conviction.
So, first experience and then the discovery of universal
truths, moving from a posteriori to a priori judgements of Reason,
in an overturning, almost, of the Kantian relation between mental
categories and empirical experience. Through the science of
experience [Wissenschaft der Erfahrung] humanity has apprehended,
in slow but decisive steps along its history, the theoretical
falseness of some fundamental ethico-juridical convictions. As
already mentioned, this has happened with slavery, imperialism,
colonialism, racial and gender discrimination, and so on.
Likewise, we are witnessing an interesting phenomenon
with regard to the death penalty. Article 27 of the Italian
Constitution prohibiting the death penalty is not in itself an
Antonio Incampo 273
ineluctable rule-of-thumb for all policymaking today. Many

States still apply the death penalty, and not just in those
countries far from western culture and influence. I’m thinking
of the USA and Japan, if we want to exclude China and most
Arab nations. 10 It is clear, however, that another process is
unfolding, and this fact goes beyond the merely theoretical
debate between abolitionists and non-abolitionists. The death
penalty seems destined to lose its legitimacy. The number of
States allowing capital punishment is shrinking; as is the
number of crimes to which it is applied. Not all the States in
which it is allowed actually carry it out (basically, a kind of de
facto abolition). Even in those cases in which a death sentence
has been issued, there is a tendency to suspend its execution sine
die. Ultimately, it remains as a residual and quasi-symbolic form
of punishment.11
To this we can add two more important facts: on 15
November 2007, at Italy’s instigation, the Third Committee of
the UN General Assembly approved a resolution for a universal
moratorium on the death penalty, and on 18 December 2007 the
10
The lack of a unanimous consensus regarding the abolition of the
death penalty is recorded emblematically in the final draft of the UN
Conference (17 July1998) for the adoption of the Convention in the
International Criminal Court: “The debate at this Conference on the issue of
which penalties should be applied by the Court has shown that there is no
international consensus on the inclusion or non-inclusion of the death
penalty.”
11
Supporting the idea of a “gradual process of de-legitimisation of the
death penalty” is, among others, Norberto Bobbio, in L’età dei diritti, 1997,
pp. 206–207. Moreover, in 1989 a famous report by Amnesty International,
When the State Kills. The Death Penalty v. Human Rights, brought to light
the fact that there was already a global discontinuity in the application of the
death penalty and an irreversible abolitionist position had already gained
ground in most States. One gleans from this, among other things, the clear
result of a corresponding and growing affirmation of human rights. Rolf
Einar Fife writes: “Human rights law sets limitations on the application of the
most severe forms of punishment, in particular with regard to the death
penalty and through the prohibitions against torture, as well as cruel,
inhuman and degrading treatment or punishment.” (Penalties, in: Roy S. Lee
(ed.), The International Criminal Court. The Making of the Rome Statue
Issues, Negotiations, Results, 1999, p. 320).
moratorium was reaffirmed by the UN General Assembly. 12

How can we explain this turning-point? Certainly not by arguing
that the truth is on one side and the facts are on another, as if the
facts were blind and didn’t have any explanation. There must be
a further argument. Why, in spite of everything, are we moving
toward the universal abolition of the death penalty? What is the
principle behind such an important event? The answer seems to
touch on the absolute value of life, even the life of a murderer.
An individual is greater than the sum of his/her actions, and
surpasses by far his/her crimes. The death penalty makes no
sense, simply because killing is always wrong. Not because it
leaves the number of crimes unchanged, or because of the
irreparable effects in the case of error, or because it goes against
the redemptive function of punishment. Yes, probably for these
reasons too, but not only. The real reason consists in the
extraordinary value of life. Even Cain’s life.13
12
It should also be noted that, after the ratification by the General
Assembly, Argentina, Burundi, Gabon, Latvia, Togo and Uzbekistan also
abolished the death penalty. Moreover, Illinois and Connecticut have become
respectively the 16th and 17th states in the US to reject the death penalty. The
fact that the UN tends increasingly toward the abolition of capital punishment
is a decisive argument in overcoming the contradictions between the ad hoc
international criminal tribunals for the former Yugoslavia and Rwanda and
the internal penal codes of those States. In the Security Council’s discussion on
the status of the ad hoc international criminal tribunal for Rwanda, the New
Zealand representative underlined that “for over three decades the United Nations
has been trying progressively to eliminate the death penalty. It would be entirely
unacceptable – and a dreadful step backwards – to introduce it there.”
(William A. Schabas, Perverse Effects of the Nulla Poena Principle: National
Practice and the Ad Hoc Tribunals, in ‘EJIL,’ (11) 2010, p. 527).
13
I agree completely with Bobbio’s thesis that the only reason able to
explain our repugnance for capital punishment is the moral imperative “Thou
shalt not kill.” Bobbio writes: “There is only one reason: the Commandment
not to kill. I see no other. Beyond this ultimate reason, all other arguments are
worth little or nothing, and they can be twisted with arguments that have, more or
less, the same persuasive force. Dostoyevsky said it magnificently, putting these
words in Prince Myshkin’s mouth: ‘Because it is said thou shalt not kill, is he to
be killed because he murdered someone else? No, it is not right, it's an
impossible theory. […] I believe that to execute a man for murder is to punish
him immeasurably more dreadfully than is equivalent to his crime. A murder by
sentence is far more dreadful than a murder committed by a criminal.’”(Norberto
Bobbio, L’età dei diritti, 1997, p. 199, English translation by the author).
Antonio Incampo 275
Moreover, it is unthinkable for criminal law to judge that

taking a human life is not a crime (except in cases of self-
defence or the necessity of saving others’ lives). Capital
punishment, from this perspective, is a veritable anomaly. On
the one hand, for the Law, life is an inalienable right (the
exceptions confirm the rule), on the other, the penal system
takes lives even when it is not necessary. The State is not in the
same position as the individual, forced to take a life if s/he is in
grave danger. The State, in other words, does not experience the
moral dilemma of either inflicting the death penalty or leaving a
crime unpunished, thereby jeopardising its own existence.
Unlike the individual, it can find alternative punishments.
Finally the question remains of how we understand Goodness.
Think of a simple colour. How do we apprehend colour?
Language isn’t enough to fix the image, we must first perceive it.
It’s not by saying what blue is that can someone else imagine it.
They have to see it. The same happens with value. The gift of
life is not a fact that can be communicated with words alone; we
don’t get there straight away, at the end of a reasoned argument.
Quite the contrary. It is through the progression of our whole
existence that we feel shocked by killing and we are distressed
by the sight of suffering, no matter what that person’s history is.
If we feel involved in a person’s unconditional dignity, it is only
at the end of long experience.
In this way, a mesofact is also a theoretical fact of Reason.
The slow passage of time, and of the inner processes with which
we recognise Goodness, leads us to truths which otherwise we
would not be able to understand. What is not easy to predict is the
amount of time needed to reach a definitive result. After all,
individual experience, in any given moment, is not enough. Much
more than a single consciousness is needed, and the journey isn’t a
short one. “Tantae molis erat se ipsam cognoscere mentem.”14
14
“Such was the cost in heavy labour of coming to know one’s own
mind.” So Hegel by a famous verse of Virgil.
Bibliography
Bobbio, Norberto, L’età dei diritti, Einaudi, Torino, 1997.

Donini, Massimo, La condanna a morte di Saddam Hussein. Riflessioni sul
divieto di pena capitale e sulla ‘necessaria sproporzione’ della pena
nelle gross violations, in ‘Diritti umani e diritto internazionale,’ (1) 2007,
pp. 343–367.
Fife, Rolf Einar, Penalties, in Roy S. Lee (ed.), The International Criminal
Court. The Making of the Rome Statute. Issues, Negotiations, Results,
Kluwer, The Hague/ London/ Boston, 1999, pp. 319–343.
Grossi, Paolo, Prima lezione di diritto, Laterza, Roma/ Bari, 2004.
Hunt, Lynn, Inventing Human Rights. A History, W.W. Norton & Co., New
York/ London, 2007.
Kant, Immanuel, Grundlegung zur Metaphysik der Sitten, in: Kant’s gesammelte
Schriften, herausgegeben von der Königlich Preußischen Akademie der
Wissenschaften, Band IV, Georg Reimer, Berlin, 1903, pp. 385–463.
— Idea for a Universal History with a Cosmopolitan Purpose, in Immanuel
Kant, Political Writings, edited with an introduction and notes by Hans
S. Reiss, Cambridge University Press, Cambridge/ New York, 2003.
Manzini, Vincenzo, Istituzioni di diritto penale italiano, Cedam, Padova,
1935.
Sacco, Rodolfo, Antropologia giuridica. Contributo ad una macrostoria del
diritto, Il Mulino, Bologna, 2007.
Schabas, William A., Perverse Effects of the Nulla Poena Principle: National
Practice and the Ad Hoc Tribunals, in ‘EJIL,’ (11) 2010, pp. 521–539.
Thomas Aquinas, Summa Theologiae [cum commentariis Thomae de Vio
Caietani], in Thomas Aquinas, Opera Omnia [iussu impensaque Leonis
XIII Pont. Max. edita], tomi IV-XII, ex Tipographia Polyglotta S.C. de
Propaganda Fide, Romae 1882.
Heribert Franz Köck 277
Heribert Franz Köck
Universality of Punishment
and the Common Good of Mankind —
Some Considerations of Principle
1. Punishment and the common good
Punishment is an element of the administration of criminal

justice by a State or by the community of States. The administration
of criminal justice is part of the over-all administration of justice
which, in turn, is an aspect of legal protection due to the
individual and extended to it by society through its various
forms of political organization, national, regional and global.
The threat, and the execution, of punishment is a form of
law enforcement which is usually restricted to areas where law
enforcement by civil proceedings and subsequent civil execution
is considered not to be sufficiently effective. Punishment, and
the threat of it, constitutes (or are intended to be) a deterrence,
and is (or should be) used only in those cases where injuries
caused by an illegal conduct cannot be repaired by restitution or
are not likely to be repaired by the payment of damages.1
Legal protection, and the administration of justice in general,
and of criminal justice in particular, is part of the fulfillment of
the task of establishing and preserving the common good, a
function whose adequate completion constitutes the very raison
d’être of the State and of the international community. The
common good has three aspects: peace and security, freedom,
and welfare. While all three aspects of the common good might
1
Where restitution (restitutio in integrum) or full reparation of injuries
are possible, additional punishment is not necessary. Restitution is not
possible in all cases which involve, e.g., death or other physical or psychical
harm of persons, the destruction of goods beyond retrieval, or permanent
damage to the environment.
offer causes for the application of criminal law, peace and

security and freedom are the main areas for its adoption. In
particular, the meting out of punishment is regarded a means of
special and general prevention, i.e. of deterrence, of the offender
or of the general public, from committing potential (further)
criminal offenses. While punishment may intend, as a side effect,
the re-socialization of the offender, re-socialization alone would
not justify the infliction of punishment, as does not the idea of
retributive justice either, because the only reason for interfering
with the freedom of an individual is to secure that the individual
will not transgress the borders which delimitate the spheres of
freedom of the different individuals as among themselves.2 In
modern society where pluralism does not only exist in fact (as it
has always done) but is also recognized and accepted as its basic
characteristic, 3 no one has been granted the right to pass
judgment on the quality of the conduct of any other, whether
from a religious point of view or from that of a particular
philosophy (Weltanschauung). So retribution must be left to
God. 4 Therefore, the preservation of the common good is the
only justification of punishment.
Since the establishment and the preservation of the of the
common good is the raison d’être of the State and the international
community and of the binding force of their legal order, punishment
2
Cf. Immanuel Kant, Die Metaphysik der Sitten, Part I: Metaphysischen
Anfangsgründe der Rechtslehre (1797), Einleitung in die Rechtslehre, § B.
Was ist Recht? in Kant’s gesammelte Schriften, 1914, Vol. 6, p. 230: “Recht
ist also der Inbegriff der Bedingungen, unter denen die Willkür des einen mit
der Willkür des andern nach einem allgemeinen Gesetze der Freiheit
zusammen vereinigt werden kann.”
3
Cf. Treaty on European Union, Article 2: “The Union is founded on
the values of respect for human dignity, freedom, democracy, equality, the
rule of law and respect for human rights, including the rights of persons
belonging to minorities. These values are common to the Member States in a
society in which pluralism, non-discrimination, tolerance, justice, solidarity
and equality between women and men prevail.” For a comprehensive theory
on State and law under the conditions of a pluralistic society, see Heribert
Franz Köck, Recht in der pluralistischen Gesellschaft, 1998.
4
“Vengeance is mine, I will repay, saith the Lord.” Cf. Deut. 32:35,
Rom. 12:19, Hebr. 10:30.
– if necessary for the protection of the common good – is not

only a right but also an obligation of the body politic. It is not
possible, in this context, to discuss the need for criminal law in
general, and for punishment, in particular; therefore, we have to
start from the assumption that punishment, and the threat of it,
are indispensable means of deterrence, a view that is not only
shared in theory by the great majority of legal scholars but is
also universally reflected in practice by the legal orders of all
States and of the international community.
2. Right and obligation to inflict punishment
If we say that the body politic has an obligation to threaten

with, and to inflict, punishment, this applies in particular to the
State, because the State is the immediate body politic for the
individual. But the State is concerned, first of all, with the
common good of its own people. We have to keep in mind that
there is no common good of the State distinct from the common
good of its people, because the State is not an institution which
exists outside or even above its people; the State is nothing more
than its people in their politically organized form; and this
organized form is only an instrument of the people for the
establishment and the preservation of their common good. The
people’s common good is their right or claim to peace and security,
to freedom, and to welfare; in contrast, the State’s common good is
but the people’s common good it has the obligation to establish and
to preserve. It follows that the State, in order to secure the common
good of its people, has an obligation to punish all conduct directed
against this particular common good.5
5
Administration of criminal justice on the basis of the principles of
territoriality or personality alone does not suffice to protect the common good
in a particular State; these principles have to be supplemented by the
principle of protection of national goods. This is reflected in the Austrian
Code of Criminal Procedure of 1975. Cf. Helmut Fuchs, Österreichisches
Strafrecht. Allgemeiner Teil, 2008, pp. 49 ff.
The fact that the State has a duty, and therefore also the right,
to punish conduct directed against the common good of its
people provides an answer to certain questions which have been,
and still are, disputed in the theory and practice of the administration
of criminal justice.
First, the State may not only punish conduct of its own
nationals directed against its own common good but also any
like conduct of persons who are not his nationals. The State’s
jurisdiction ratione personae is thus not determined by the
personal criterion of nationality (or, eventually, of residence),
but by the substantive criterion of the object against which the
incriminated conduct was directed. Any conduct against a
State’s common good is punishable by that State regardless of
whether the offender is a national of that State, a national of any
other State or a stateless person.
Second, the State may not only punish conduct directed
against its own common good committed on its territory but also
any such conduct committed outside its territory. The State’s
jurisdiction is thus determined ratione materiae (all conduct
directed against the State’s common good), whether this conduct
was exercised within or outside the territory of that particular
State, as long as the conduct was suited to negatively affect the
State’s common good. The State’s jurisdiction is thus not limited
ratione loci delicti commissi; if the conduct was exercised
outside the territory of that State but has negative effects on its
common good the State is entitled to prosecute the person or
persons who engaged in this conduct.
The jurisdiction of the State in criminal matters and its right
to punish offenders, if applied to conduct which takes place
outside the State’s territory because of the fact that the
incriminated effects take place within that State’s territory is
sometimes said to take extra-territorial effect. However, a
conduct the effects of which take place on this State’s territory
cannot be regarded as being fully “outside” that State, and the
jurisdiction exercised by that State in order to punish such
conduct cannot therefore be regarded extraterritorial. This applies
even in cases where the immediate effect also takes place
outside the territory of that State, i.e. with regard to all offenses
which are directed against nationals or agents of that State,
against State institutions or State property outside the territory of
that State. The only decisive criterion therefore is whether or not
the conduct may have negative repercussions on that State’s
common good.
3. Punishment and the international community
If the question of punishment as a means of preserving the

common good is considered in an isolated manner only from the
point of view of the State in question, the exercise of the State’s
jurisdiction in criminal matters is limited. It is limited to persons
staying on its territory unless a person staying outside that State
is handed over to it by another State. Moreover, the exercise of
the State’s jurisdiction might be hampered by the exercise of
another State’s right of diplomatic protection in favor of one of
the latter’s national staying on the territory of the former, if the
other State alleges that its national has not engaged in the
incriminated conduct or that, although the national has engaged
in this conduct, the conduct is not punishable because the former
State has a wrong perception of what is demanded or prohibited
by the common good.
3.1. A change of paradigms: From sovereignty …
It may be said that this was the state of affairs in the

international community up to the time between the two World
Wars. The sovereignty dogma 6 which prevailed at the time
permitted every State to refuse any cooperation with any other
State unless it was under a positive obligation to cooperate; and
since customary international law was not considered as
6
Cf. Helmut Steinberger, Sovereignty, in Rudolf Bernhardt (ed.), Encyclopedia
of Public International Law, Vol. IV, 2000, pp. 500 ff., at p. 510.
containing a general obligation to cooperated, such positive

obligation had to come from a special commitment undertaken
in an international treaty. This doctrine found its expression in
the rejection of the idea that a State was under a duty to
alternatively extradite an offender or prosecuted him itself; and
countries which had not concluded extradition treaties were
considered a safe haven for fugitives from justice.
This state of affairs was the direct consequence of legal
positivism which exercised great influence in legal theory and
practice from the second half of the nineteenth century until
World War II, not only in the field of domestic law but also in
that of public international law. Positivism, on its part, was the
direct successor to the so-called historical school of law which
had replaced natural law thinking in the course of the first half
of the nineteenth century and had substituted for reason as a
source of law – whether rightly regarded a source of law
perception or wrongly a source of law creation – the conviction
of the people or rather a form of popular consciousness which,
because it was allegedly common to the people and a reflection
of its (unreflected) convictions, was called the Volksgeist.7 Since
constitutionalism led to the establishment of parliaments in the
period after 1848, and since it was easy to consider the laws
enacted by parliaments as the new form of expression of the
Volksgeist, positive law became a source of law which could
neither be questioned nor challenged. And since the Volksgeist
had replaced reason as the ground of the law’s validity and had
afterwards been replaced itself by (the majority decisions of)
parliament, positive law became the only relevant kind of law.
7
Cf. Paul Koschaker, Europa und das römische Recht, 1966, pp. 254
ff.; Franz Wieacker, Privatrechtsgeschichte der Neuzeit unter besonderer
Berücksichtigung der deutschen Entwicklung, 1967, pp. 348 ff.; Hans
Schlosser, Grundzüge der Neueren Privatrechtsgeschichte. Rechtsentwicklungen
im europäischen Kontext, 2005, pp. 143 ff.; and Gunter Wesener, Zu den
Anfängen der Historischen Rechtsschule romanistischer Richtung in Österreich,
vornehmlich zu Ludwig Arndts von Arnesberg (1803–1878), in Thomas
Olechowski, Christian Neschwara and Alina-Maria Lengauer (eds,) Grundlagen
der österreichischen Rechtskultur. Festschrift für Werner Ogris zum 75.
Geburtstag, 2010, pp. 577 ff.
As long as the Volksgeist was considered an emanation of

the Spirit of God (vox populi, vox Dei), positive law had still a
real basis, namely the reason and/or the will of God, although
ignoring the traditional natural law thinking could lead to all
kinds of legal concepts. The most detrimental for international
law was Hegel’s theory which considered the State, identified
with the so-called objective spirit in contrast to man’s subjective
spirit, the highest form of appearance of God or the World Spirit
and therefore denied the international community any reality
comparable to that of the State.8 Since the international community
had no reality, international law had no reality either; and Hegel
considered what was usually called “international law” or “the
law of nations” to be nothing more than the external law of the
State which, like the State’s internal law, could be altered or
abolished at any time according to the State’s pleasure. In
Hegel’s system, even international treaties were not capable of
creating firm international obligations for the State, for a treaty
was no more than a self-commitment of the State which it was
free to revoke at any time.9
The positivistic theory stopped to relate the validity of
positivist law to a higher authority, albeit the Volksgeist, and
required only the fulfillment of two conditions for the existence
of a valid legal norm: its enactment by a competent legislator,
and its promulgation in the provided form. Kelsen, himself a
positivist, denounced those who accepted the validity of legal
norms on the basis of these two conditions without facing the
question why enactments of a particular legislator should be
regarded to be binding as naive positivists and claimed for
himself to be a critical positivist because he faced this question.
Yet, he did so only to afterwards declare that it cannot be
answered, and that it was not possible to regard any system of
norms as a legal order unless one submitted to the fiction that
there existed a basic norm (the hypothetical Grundnorm) which
declared a particular system to be binding. Since Kelsen denied
8
Cf. Alfred Verdross, Abendländische Rechtsphilosophie, 1964, pp. 157 ff.
9
Cf. Peter Fischer and Heribert Franz Köck, Völkerrecht, 2002, p. 44.
that positive law had anything to do with justice (a notion which

he considered not to make sense outside the positive legal order
because there was no other legal order outside or above positive
law), his main endeavors were directed to the analysis of the
legal norms in their relationship to each other; and legal
philosophy was abandoned in favor of a so-called pure theory of
law.10
As soon as positive law deviated substantially from traditional
concepts of justice, the practical consequence of positivism
proved disastrous. It vested unjust orders with the dignity of law
and exempted the addressees of legal rules from the obligation
to distinguish between a just and an unjust rule and from their
individual responsibility to decide whether, in a particular case,
they should obey or rather were required to offer passive
resistance (i.e. disobedience) or active resistance (i.e. adequate
measures for changing the rule or the legal order in its entirety).
This made it easy for unjust legal orders like those in Nazi-
Germany between 1933 and 1945 or in the communist countries
up to 1989 to assert themselves because they hardly met with the
opposition of lawyers; and judges and civil servants in the
administration did not find it difficult to apply a law for the
contents of which they did not considered themselves responsible.
Equally, many atrocities committed by the belligerents and
others during and after World War II were accepted as legal by
those who committed them because they had a basis in positive
law which offered a welcome excuse.
3.2. … to solidarity
Yet, the experience with this kind of unjust legal orders led
to a rethinking; and the trials held in Nuremberg11 and Tokyo12
10
Cf. Hans Kelsen, Reine Rechtslehre, 1960.
11
Cf. Hans-Heinrich Jeschek, Nuremberg Trials, in: Rudolf Bernhardt
(ed.), Encyclopedia of Public International Law, Vol. III, 1997, pp. 747 ff.
12
Cf. Bert V. A. Röling, Tokyo Trial, in Rudolf Bernhardt (ed.),
Encyclopedia of Public International Law, Vol. IV, 2000, pp. 863 ff.
after World War II indicated that the international community

was not going to put up any longer with crimes against peace,
against humanity and against the law of war. Equally, the preamble
of the Universal Declaration of Human Rights recognized that
“it is essential, if man is not to be compelled to have recourse, as
a last resort, to rebellion against tyranny and oppression, that
human rights should be protected by the rule of law.”13
It was inevitable that the Charter of the United Nations
provided, in one way or the other, for the common good of
mankind: for peace through the general prohibition of force in
Article 2, No. 4,14 for freedom in a general formulation in favor
of fundamental rights in Paragraph 2 of the Preamble15 and the
recognition of the right to self-determination of peoples in Art. 1,
No. 2,16 and No. 3,17 in Article 62, No. 2,18 and for welfare in
Paragraphs 419 and 820 of the Preamble, in Article 1, No 3,21 and
in Article 62, No. 1.22 The welfare end is also furthered by the
13
Preamble, Paragraph 3.
14
“All Members shall refrain in their international relations from the
threat or use of force against the territorial integrity or political independence
of any state, or in any other manner inconsistent with the Purposes of the
United Nations.”
15
“[WE THE PEOPLES OF THE UNITED NATIONS, DETERMINED] to reaffirm
faith in fundamental human rights, in the dignity and worth of the human
person, in the equal rights of men and women and of nations large and small.”
16
“[DETERMINED] to develop friendly relations among nations based on
respect for the principle of equal rights and self-determination of peoples, […].”
17
“[The Purposes of the United Nations are:] To achieve international
co-operation […] in promoting and encouraging respect for human rights and
for fundamental freedoms for all without distinction as to race, sex, language,
or religion.”
18
“[The Economic and Social Council] may make recommendations for
the purpose of promoting respect for, and observance of, human rights and
fundamental freedoms for all.”
19
“[DETERMINED] to promote social progress and better standards of life
in larger freedom.”
20
“[AND FOR THESE ENDS] to employ international machinery for the
promotion of the economic and social advancement of all peoples.”
21
“[The Purposes of the United Nations are:] To achieve international
co-operation in solving international problems of an economic, social,
cultural, or humanitarian character[…].”
22
“The Economic and Social Council may make or initiate studies and
reports with respect to international economic, social, cultural, educational,
specialized agencies, as provided for in Articles 57, No. 1,23 63,

No. 1,24 and 64, No. 1.25 This, and the fact that, in Article 24, No.
1, “[i]n order to ensure prompt and effective action by the
United Nations, its Members confer on the Security Council
primary responsibility for the maintenance of international peace
and security, and agree that in carrying out its duties under this
responsibility the Security Council acts on their behalf,” and that,
in Article 25, “[t]he Members of the United Nations agree to
accept and carry out the decisions of the Security Council in
accordance with the present Charter,” leaves no room for any
notion of absolute sovereignty. This is confirmed by Paragraph 3
of the Preamble, according to which the Member States are
determined “to establish conditions under which justice and
respect for the obligations arising from treaties and other sources
of international law can be maintained.”
Finally, the fact that, in the quoted paragraph, justice and
international law are mentioned separately and, moreover, that
justice is mentioned first demonstrates that, in the view of the
Member States, justice does not derive from, but precedes,
positive law and that positive law has to conform to justice.26
health, and related matters and may make recommendations with respect to
any such matters to the General Assembly, to the Members of the United
Nations, and to the specialized agencies concerned.”
23
“The various specialized agencies, established by intergovernmental
agreement and having wide international responsibilities, as defined in their
basic instruments, in economic, social, cultural, educational, health, and
related fields, shall be brought into relationship with the United Nations in
accordance with the provisions of Article 63.”
24
“The Economic and Social Council may enter into agreements with
any of the agencies referred to in Article 57, defining the terms on which the
agency concerned shall be brought into relationship with the United Nations.
Such agreements shall be subject to approval by the General Assembly.”
25
“The Economic and Social Council may take appropriate steps to
obtain regular reports from the specialized agencies. may make arrangements
with the Members of the United Nations and with the specialized agencies to
obtain reports on the steps taken to give effect to its own recommendations
and to recommendations on matters falling within its competence made by
the General Assembly.”
26
Paragraph 3 speaks of “treaties and other sources international law;”
and these are the sources of positive international law. – It is significant that
It is not surprising that the idea of fundamental rights and

duties was also taken up after World War II and that the existence
of such rights and duties became generally recognized.27 In the
heydays of positivism, a State was not considered to have any
other rights and duties than those to which it had submitted
either by treaty or by international practice qualifying for customary
international law. Under the new approach, a State was considered
to have at least two fundamental obligations vis-à-vis the other
members of the international community, namely, first, to refrain
from the use of force against State or any other entity even it has
not yet recognized i t in one way or the other, and, second, to
enter into cooperation with any other State or such entity if this
is required from the point of view of the international common
good. To these obligations, there exist corresponding rights,
namely the right not to become the object of the use of force by
others, and the right to cooperation with other States and entities,
in order to enable the State in question to provide for the
common good of its own people.
4. Punishment and the common good of mankind
Since World War II, the idea that there exists a common
good of mankind the realization of which is a task of the
twenty-five years earlier, the majority of the members of the committee of

jurists set up by the Council of the League of Nations with the task of
working out the Statute of the Permanent Court of International Justice had
refused, when dealing with the legal basis of the decisions and opinions of
the Court, to write into what later became Article 38, Paragraph 1 of the
Statute that the Court should proceed on the basis of “law and justice.” For
the majority, composed of positivists, justice had no meaning outside the law.
This is also demonstrated by Article 38 Paragraph 2 of the Statute which
speaks of decisions ex aequo et bono, a notion that created bewilderment,
even embarrassment for the Court in the case of the Free Zones of Upper
Savoy and the District of Gex, Judgment of 7 June 1932, PCIJ Publications,
Series A/B, No. 46.
27
Cf. José Maria Ruda, States, Fundamental Rights and Duties, in Rudolf
Bernhardt (ed.), Encyclopedia of Public International Law, Vol. II, 1995, pp.
673 ff.
international community as a whole28 has found its reflection in

numerous international instruments, in the form of both
declarations29 and binding agreements. They contain concepts like
that of the common heritage of mankind30 or of an international
economic order 31 that entails specific economic rights and
28
For an elaboration of the concept of the common good of mankind
which has already been reflected in the teachings of the Francisco de Vitoria
(1480‒1546) and other members of the School of Salamanca, see Alfred
Verdross, Der klassische Begriff des bonum commune und seine Entfaltung
zum bonum commune humanitatis, in ‘Österreichische Zeitschrift für
öffentliches Recht,’ 28 (1977), pp. 143 ff.
29
For a collection of declarations concerned, cf. Dieter Rauschning,
Katja Wiesbrock and Martin Lailach (eds,), Key Resolutions of the UN
General Assembly, 1946 ̶ 1996, 1997.
30
The Common Heritage of Mankind is a concept that works as a
principle of international law seeking to protect, respect and fulfill the
interests of human beings wherever they are living, including future
generations. While the concept of Common Heritage of Mankind was first
mentioned in the preamble to the 1954 Hague Convention for the Protection
of Cultural Property in the Event of Armed Conflict, it appears as an explicit
obligation under international law in the Outer Space Treaty of 1967 and in
the Agreement Governing the Activities of States on the Moon and Other
Celestial Bodies of 1979. The formulation “interest of all mankind,” as used
in the Antarctic Treaty of 1959, expresses the same concept. So far, the
concept has plaid its most important role in connection with the modern law
of the sea, as is shown by the Declaration of Principles Governing the Seabed
and Ocean Floor of 1970 stating that the deep seabed is the “Common
Heritage of Mankind.” Article 136 of the United Nations Convention ion the
Law of the Sea (UNCLOS 1982) declared “the seabed and ocean floor and
subsoil thereof beyond the limits of national jurisdiction” to be part of the
Common Heritage of Mankind.
31
Cf. the Declaration for the Establishment of a New International
Economic Order, adopted by the United Nations General Assembly during a
special session in 1974 after lengthy and laborious discussions between
industrial and developing countries (also known as the “North-South Dialogue”).
It envisaged restructuring of the world’s economy to permit greater
participation by and benefits to developing countries and for this reason dealt
with a wide range of trade, financial, commodity, and debt-related issues. It was
accompanied by a Program of Action. However, it did not render the intended
results; in a certain way, it was superseded by the economic system established,
or strengthened, by the World Trade Organization of 1994 and its main legal
instruments, namely the General Agreement on Tariffs and Trade (GATT), the
General Agreement on Trade in Services (GATS) and Trade-Related Aspects
of Intellectual Property Rights (TRIPS).
duties of States, 32 or of human rights 33 and human duties and

obligations. 34 The idea is also reflected in the United Nations
Millennium Declaration, 35 the Statute of Rome, 36 the Global
Compact,37 The Earth Charter,38 the Kyoto Protocol,39 and various
UNESCO declarations and conventions. All these initiatives are
expression of the belief that the realization of the common good
of mankind cannot be left to the good will of the individual
sovereign States.
The fact that the Security Council has come to consider
grave and persistent violations of human rights committed by a
State against its own nationals or a particular group of them a
sufficient basis for measures 40 under Chapter VII of the UN
32
The Charter of Economic Rights and Duties of States was adopted by
the UN General Assembly during its regular session in fall of 1974.
33
As regards the universal level, cf. the International Covenant on Civil
and Political Rights, one of two human rights conventions adopted by the UN
General Assembly in 1966.
34
The Declaration of Human Duties and Responsibilities was worked
out under the auspices of the UNESCO and the interest of the United Nations
High Commissioner of Human Rights and was adopted in 1998 in order to
overcome the lack of political will for enforcing globally human rights.
According to Paragraph 4 of the Preamble, “[t]he effective enjoyment and
implementation of human rights and fundamental freedoms is inextricably linked
to the assumption of the duties and responsibilities implicit in those rights.”
35
Adopted by the UN General Assembly in 2000.
36
The Rome Statute of the International Criminal Court was adopted at
a diplomatic conference in Rome in 1998; it entered into force in 2002.
37
The United Nations Global Compact is an initiative to encourage
businesses worldwide to adopt sustainable and socially responsible policies,
and to report on their implementation. It was officially launched in 2000 and is
supported by the United Nations High Commissioner for Human Rights, the
United Nations Environment Program, the International Labor Organization, the
United Nations Development Program, the United Nations Industrial Development
Organization and the United Nations Office on Drugs and Crime.
38
A civil society initiative, worked out with the support of the Netherlands
government and approved by Earth Charter Commission at the UNESCO
headquarters in Paris 2000, was officially launched at the Hague the same year.
39
The Kyoto Protocol to the United Nations Framework Convention on
Climate Change was adopted in 1997.
40
Security Council Resolution 1674 of 28 April 2006 reaffirmed the
Council’s “responsibility to protect populations from genocide, war crimes,
ethnic cleansing and crimes against humanity” and committed the Council to
action to protect civilians in armed conflict.
Charter,41 equivalent to a threat to, or breach of, peace or an act

of aggression, also demonstrate the awareness of the international
community that the protection of human rights constitute an
international concern and cannot be abandoned to the arbitrariness
of any State invoking the principle of non-interference into
internal affairs. 42 This has been confirmed by the World
Summit of 2005 which recognized the international community’s
responsibility to protect people against international crimes
perpetrated by any State including their own.
5. Enforcement of the common good of mankind
If the international community is concerned with the rights

and duties of States for the establishment and the preservation of
the common good of mankind, it is not sufficient to appeal to the
individual States to conform to certain standards or to recognize
certain principles and to concretize them in specific obligations
contained in international treaties. The international community
also has to see to it that infringements of these principles and
violations of these obligations do not go unheeded. This insight has
led to initiatives in two areas: in the area of State responsibility and
in the area of international penal law and criminal jurisdiction.
41
While the Chapter relates to “Action with respect to threats to the peace,
breaches of the peace, and acts of aggression,” the notion of “international
concern” has been used since the early years of the United Nations
Organization to cover situations which might cause States to intervene in
formally domestic affairs of another State. Cf. Heribert Franz Köck, Ist
Art. 2 Zif. 7 SVN tot?, in ‘Österreichische Zeitschrift für öffentliches Recht,’
22 (NF) 1971, pp. 327 ff.
42
Cf. UN Charter Article 2 No. 7: “Nothing contained in the present
Charter shall authorize the United Nations to intervene in matters which are
essentially within the domestic jurisdiction of any state or shall require the
Members to submit such matters to settlement under the present Charter;
[…].”
5.1. State responsibility
The Law of State Responsibility took a clear shape in the

Draft articles on Responsibility of States for Internationally
Wrongful Acts which were adopted by the International Law
Commission at its fifty-third session in 2001.43 In the same year,
a Resolution of the UN General Assembly “commended [the
articles] to the attention of Governments.” This gives them a
special authority, though they have not yet been transformed
into an international convention. The Draft articles “apply to the
whole field of the international obligations of States, whether the
obligation is owed to one or several States, to an individual or
group, or to the international community as a whole.”44 Part Two
Chapter III deals with “serious breaches of obligations under
peremptory norms of general international law.” According to
Article 48 (Invocation of responsibility by a State other than an
injured State), Paragraph 1, “[a]ny State other than an injured
State is entitled to invoke the responsibility of another State […]
if: […] (b) the obligation breached is owed to the international
community as a whole.” And according to Paragraph 2, “[a]ny
State entitled to invoke responsibility under paragraph 1 may claim
from the responsible State: (a) cessation of the internationally
43
They were and submitted to the General Assembly as a part of the
Commission’s report covering the work of that session (A/56/10). For the
report which also contains commentaries on the draft articles cf. Yearbook of
the International Law Commission, vol. II, Part Two, 2001.
44
General Commentary, Paragraph 5. – That not all international
obligations are purely bilateral in character has been recognized by the
International Court of Justice in Barcelona Traction Light and Power
Company, Judgment, I.C.J. Reports, 1970, p. 3, at p. 32, para. 33, and on a
number of subsequent occasions – cf. East Timor (Portugal v. Australia),
Judgment, I.C.J. Reports, 1995, p. 90, at p. 102, para. 29, where the Court said
that “Portugal’s assertion that the right of peoples to self-determination, as it
evolved from the Charter and from United Nations practice, has an erga omnes
character, is irreproachable,” and Application of the Convention on the
Prevention and Punishment of the Crime of Genocide, Preliminary Objections,
I.C.J. Reports, 1996, p. 595, p. 616, where the Court stated that “the rights
and obligations enshrined by the [Genocide] Convention are rights and
obligations erga omnes,” although the Court has been cautious in applying it.
wrongful act, and assurances and guarantees of non-repetition in

accordance with article 30; and (b) performance of the obligation
of reparation in accordance with the preceding articles, in the
interest of the injured State or of the beneficiaries of the
obligation breached.”
The Draft articles on Responsibility of States for Internationally
Wrongful Acts do not cover two aspects which are important for
the task of realizing the international common good. First of all,
while any State may invoke any serious violation by any other
State of a peremptory norm of international law as a violation of
an obligation owed to the international community as a whole,
the Draft articles do not contain, either for the individual State or
for the international community, an obligation to do so. This is
not consistent with the notion of a peremptory norm, because
such a norm does not permit of derogation; and non-invocation of
the responsibility of the State concerned is a kind of dispensation of
that State from the fulfillment of an obligation incumbent upon it
under international ius cogens. While a State may renounce a right
of its own, no State is permitted to renounce a right pertaining to
the international community as a whole.45 Any analogy to the
violation of an obligation that does not concern a peremptory
norm of international law is therefore out of place.
On the other hand, it cannot be the obligation of each
individual State to bring a case of State responsibility against
another State which has violated ius cogens and thus to act on
behalf of the international community which as a whole is
unwilling or unable to do so for factual or legal reasons.46 The
45
Cf. Vienna Convention on the Law of Treaties of 1969, Article 53
(Treaties conflicting with a peremptory norm of general international law
[“jus cogens”]): “A treaty is void if, at the time of its conclusion, it conflicts
with a peremptory norm of general international law. For the purposes of the
present Convention, a peremptory norm of general international law is a
norm accepted and recognized by the international community of States as a
whole as a norm from which no derogation is permitted and which can be
modified only by a subsequent norm of general international law having the
same character.”
46
One such legal reason could be the blockade of the Security Council
by the veto exercised by one of its permanent members.
Draft articles lack the necessary corollary to the provisions

concerning the responsibility incurred by a State by violation of
a peremptory norm of international law, namely a provision
which provides for the necessary measure to be taken by the
international community as a whole in order to redress that
violation. But the question of the enforcement of international
law in general, and of its peremptory norms, in particular,
concerns essential aspects of the organization of the international
community, and is not a matter for articles intended to codify a
certain area of international law but a constitutional matter and
has to be dealt with in an appropriate form.47
Second, the Draft articles do not provide for more negative
consequences in the case of violation of a peremptory norm of
international law than in the case of violation of a norm of
international law not qualified as ius cogens. While previous
special rapporteurs of the International Law Commission for
State responsibility had attempted to take care of this problem
by distinguishing between two categories of internationally
wrongful acts, namely “international crimes” and “international
delicts,” they had to admit that international practice did not
attach any different substantive consequences to the former as
compared to the latter. The only difference is a formal, i.e., a
procedural one, namely the possibility of an actio popularis
(popular action), because the matter may be taken up by any
member of the international community. In particular, the law of
State responsibility has not yet developed any penal aspect.48
47
If the UN Charter can be regarded the “constitution” of the international
community, this constitution is fragmentary and does not provide for the
enforcement of international obligations others than the obligation not to use
force and – according to more recent practice – the obligation not to violate
human rights.
48
The Commentary to Part Two Chapter III, in Paragraph 5 refers, as an
example, to the fact that even in relation to serious breaches of obligations arising
under peremptory norms “punitive damages ha[ve] not been recognized in
international law” and that “the function of damages is essentially compensatory.”
5.2. International administration of criminal justice
This does not mean, of course, that the Draft articles on

State Responsibility rule out, or that the Commentary of the
International Law Commission does not recognize, the existence
of international crimes. But the Commentary shares the view of
the International Military Tribunal of 1946 that “[c]rimes against
international law are committed by men, not by abstract entities,
and only by punishing individuals who commit such crimes can
the provisions of international law be enforced.”49 This view is
also reflected in more recent practice, namely by the ad hoc
tribunals for Yugoslavia50 and Rwanda,51 both of which are only
concerned with the prosecution of individuals.52 And the view is
confirmed by the Statute of the International Criminal Court,
because the Court’s jurisdiction – while relating to the “most
serious crimes of concern to the international community as a
whole” 53 – extends only to natural persons 54 and is not
concerned with the responsibility of States as such.55
49
International Military Tribunal (Nuremberg), judgment of 1 October
1946, reprinted in ‘American Journal of International Law,’ 41 (1947), p.
172, at p. 221.
50
The Statute of the International Tribunal for the Former Yugoslavia
was approved by the Security Council in in its resolution 827 (1993). The
tribunal stated in Prosecutor v. Blaskić that “[u]nder present international law
it is clear that States, by definition, cannot be the subject of criminal
sanctions akin to those provided for in national criminal systems.” Case IT-
95–14-AR 108 bis, ILR, vol. 110, p. 688, at p. 698, para. 25 (1997).
51
The Statute of the International Tribunal for Rwanda was approved by
the Security Council in its resolution 955 (1994).
52
Cf. Articles 1 and 6 of the Statute of the Yugoslavia tribunal and
Articles 1 and 7 of the Statute of the Rwanda tribunal.
53
Preamble, Paragraph 4.
54
Cf. ICC Statute, Article 25, Paragraph 1: “The Court shall have
jurisdiction over natural persons pursuant to this Statute.”
55
Ibid., Paragraph 4: “No provision in this Statute relating to individual
criminal responsibility shall affect the responsibility of States under international
law.”
5.2.1. International cooperation

Crimes against international law, however, constitute only a
tiny fraction of criminal offenses. Most crimes are criminal
offenses against national law enacted by the State, because in
civilized nations it is the State that protects individual rights and
interests against infringement by other individuals. Administration
of criminal justice, to the extent necessary, is a task of the State
in the context of the realization of the common good.56
But administration of criminal justice is also a task of the
international community for the following reasons. First, an
effective administration of criminal justice requires that an
offender may not elude prosecution and punishment by simply
moving from one country to another. If an offender could avoid
punishment just by leaving the country where he committed the
offense, deterrence for the purpose of general and special prevention
would suffer a substantial weakening. Second, the increasing
interdependence of States and their societies and the parallel
emergence of a milieu intersocial57 have caused criminal activities
often to take on a transnational character, a fact which per se
makes the prosecution of crimes the concern of more than one
State. Finally, the notion of the common good of mankind implies
that a criminal offense committed in one State constitutes an
offense against the international society and thus the society of
all States and therefore requires all States to co-operate in the
prosecution and the punishment of criminal offenses regardless
of where they have been committed.
If international solidarity requires that States cooperate in the
prosecution and punishment of criminal offenses, the obligation of
States to do so must be considered to be absolute, at least in
principle. Consequently, no State can be entitled to invoke its
own sovereignty if this would render the administration of
criminal justice ineffective.
56
Cf. supra, 1.
57
Cf. Georges Scelles, Précis de droit des gens: principes et systématique,
Première Partie. Introduction: Le Milieu Intersocial, 1932.
On the other hand, the obligation of States to cooperate in

criminal matters ends where activities are concerned the criminal
character of which is not generally recognized. This is reflected,
e.g., in the rules governing extradition where it is usually
required that the activity in question is also punishable under the
law of the State from which extradition is requested.58 This does
not mean that the basis for international cooperation in criminal
matters must necessarily be the lowest common denominator.
Rather, the common denominator must be established by an
evaluative comparison of national penal laws which is guided by
the realization of the common good. One important issue that is
to be taken into account in this regard is the respect for, and the
protection of, human rights.
International cooperation in criminal matters has to extend
to all aspects of the administration of criminal law, from the
search for criminal offenders and their being brought to trial
through the proceedings before the court to the execution of the
penalty imposed in case of a conviction. Various aspects of this
procedure have been regulated by international treaties or by the
recommendations of international bodies, both for the purpose
of securing an efficient administration of criminal justice and of
safeguarding the rights of the individual subject to prosecution,
trial and detention.
Positivism has regarded the enactment up of penal norms
and the imposition of punishment upon offenders a sovereign
right of the State. Today, the administration of criminal justice is
not merely regarded a right of the State but also its obligation
from the point of view of the common good and entails the need
for international cooperation in order to preserve the common
good of mankind. The obligation to punish and to cooperate for
the purpose of effective universal punishment is, first of all, an
obligation of each State. This obligation does not only extend to
the enforcement of the State’s own criminal law but also to those
offenses which are considered crimes against international law
58
Principle of dual criminality.
because they have their primary basis not in the legal order of
any particular State but in international law, due to the
consideration that prosecution and punishment of these crimes,
because of their seriousness, cannot depend on the law of any
particular State and thus should not enable an offender to claim
that the positive law of his State did not deal with such a crime.
Today, the following offenses are generally recognized as
“crimes against international law:” genocide, war crimes, crimes
against humanity and crimes against peace (i.e. waging a war of
aggression).59 It is open to question whether this list is exhaustive;
because piracy and the trade of slaves have also been regarded
crimes against (or “under”) international law. If they are not
listed in present days international crimes catalogues is probably
due to the fact that they were over-optimistically considered to
have become obsolete.60 The fact that the hi-jacking of airplanes
and other terroristic acts are not included in these catalogues is
mainly due to a difference of views as to what is to be
regarded terrorism and what legitimate self-defense.61 The list
of crimes against international law must therefore be considered
an open one.
59
Cf. ICC Statute, Article 5, Paragraph 1. There, under lit. d, the crime
against peace is called “the crime of aggression.”
60
Cf. Alfred P. Rubin, Piracy, in Rudolf Bernhardt (ed.), Encyclopedia
of Public International Law, Vol. III, 1997, pp. 1036 ff. After the end of the
cold war and the decreased deployment of naval units, seaborne piracy
against transport vessels has become a significant issue, particularly in the
waters between the Red Sea and Indian Ocean, off the Somali coast, and also
in the Strait of Malacca and Singapore. Their bases are mostly States where
the (local) population (and sometimes also the local authorities) sympathize
with the pirates, or States the institutions of which have permanently broken
down (“failed States”). Cf. Franz Leidenmühler, Kollabierter Staat und
Völkerrechtsordnung, 2011.
61
“Statements like ‘one man’s terrorist is another man’s freedom fighter’
hinder the accomplishment of reaching a useful, and much needed, definition
of terrorism.” Mira Banchik, The International Criminal Court & Terrorism,
in ‘Peace Studies Journal,’ http://www.peacestudiesjournal.org.uk/dl/ICC%
20and%20Terrorism.PDF, p. 8 (last accessed on 8. February 2015).
5.2.2. International criminal tribunals

The right and the obligation to punish crimes against
international law are incumbent upon each State. The situation
thus does not differ from that which exists with regard to crimes
against national law. Yet, the administration of justice in matters
of crimes against international law has not always been sufficiently
effective when exercised by the States if the crime was committed
by one of its nationals, and has not always been sufficiently
impartial if the crime was committed against that State or that
State’s own nationals by the nationals of another State. This can
be explained by the fact that those crimes against international
law on which the focus is today are usually committed in times
of war or of other forms of them use of military force, and that
more often than not the offenders are officials of the State in
question often carrying out what is the latter’s declared or
undeclared policy. The regime which has adopted such a policy
is not likely to prosecute its own representatives for either
adopting or implementing that policy.
This insight has given rise to the call for a tribunal that
would be independent from the State(s) concerned and impartial
in its proceedings and decisions. The Nuremberg and Tokyo
Tribunals did not fully live up to these standards because they were
set up by the main powers of the alliance that fought Germany and
Japan during World War II. Yet, they set a precedent for
international criminal tribunals; and a truly international criminal
court might have been set up soon afterwards had the outbreak of
the cold war not ruined the chances of general support.
During the following decades, much has been written and
said in favor of international criminal jurisdiction; but initiatives
taken within the United Nations remained without success for
the time being. It was only after the end of the cold war that
chances for a realization of these initiatives improved; but
continuing international distrust and jealousy among the great
powers has so far prevented a satisfactory solution. What has
been attained has remained patchwork.62
62
Cf. Lyal S. Sunga, The Emerging System of International Criminal
Law: Developments in Codification and Implementation, 1997.
6. Obstacles to universal punishment
6.1. Tribunals with limited jurisdiction
It is interesting to note that it seems to be easier to set up

international criminal tribunals for special conflicts than to
establish a court with general jurisdiction. When the Security
Council set up, in the course of the armed conflict in Bosnia, the
International Criminal Tribunal for the Former Yugoslavia (ICTY) in
1993 and, after the genocide in Rwanda, the International
Criminal Tribunal for Rwanda in 1994, and, finally, after the
civil war in Sierra Leone, the Special Court in Sierra Leone in
2002,63 these were conflicts in which the permanent members of
the Security Council were not involved and where, consequently,
they could be sure that the proceedings would not concern their
nationals or all the more their military personal or other government
officials.
6.2. Tribunals with general jurisdiction
In contrast, the International Criminal Court, set up in 1998,

has not found universal support. So far, more than forty Member
States of the United Nations are not party to the Court’s Statute,
among them Russia which has signed but not ratified, the United
States, China and India which have been critical of the Court
right from the beginning. All these States are afraid that passing
judgment upon their nationals or even their government’s agents
might amount to passing judgment upon their international
policy and the way it is implemented. Critics of the Court argue
that there are “insufficient checks and balances on the authority
63
The Special Court for Sierra Leone is a judicial body set up by the
government of Sierra Leone and the United Nations to “prosecute persons
who bear the greatest responsibility for serious violations of international
humanitarian law and Sierra Leonean law” committed in Sierra Leone after
30 November 1996, especially during the Sierra Leone Civil War which
ended only in 2002.
of the ICC prosecutor and judges” and “insufficient protection

against politicized prosecutions or other abuses.”64 Henry Kissinger
warned that the checks and balances are so weak that the
prosecutor “has virtually unlimited discretion in practice.”65
The United States government has come forward with a
number of objections against the jurisdiction of the International
Criminal Court.66 Most of them go directly against the idea of
international jurisdiction and are unacceptable in an international
community based on the rule of law. One of the basic principles
of the rule of law is that no one should be judge in his own
cause. 67 It runs counter to this principle if the United States
government states that “we want to ensure that our nationals are
dealt with by our system of laws and due process.” And it is a
relapse into outdated sovereignty thinking when the US declares
its policy to be “to encourage states to pursue credible justice
within their own institutions, consistent with their responsibilities
as sovereign states.” It is just the fact that so far the “responsibility
of sovereign States” has not sufficed to bring offenders to justice
that the International Criminal Court has been established.
The only serious arguments with which the US government
has come forward in this context relates to the right of the ICC
prosecutor to initiate an investigation or prosecution even if a
State has already conducted proceedings against a particular
person. In principle, this is, however, a necessary safeguard
against sham proceedings which do not have the objective to
convict and punish perpetrators but to whitewash them. Moreover,
there is a check on the prosecutor’s decision to take up such a
case, because he needs the approval of two judges out of a three-
judge panel to go along.
64
Cf. US Department of State, Frequently Asked Questions About the
U.S. Governments Policy Regarding the International Criminal Court (ICC),
30 July 2003.
65
Henry A. Kissinger, The Pitfalls of Universal Jurisdiction, in ‘Foreign
Affairs,’ 80 (2001), p. 95.
66
The arguments put forward by the United States government also
characterize mutatis mutandis the position of other States which have so far
refused to submit to the jurisdiction of the International Criminal Court.
67
Nemo iudex in re sua.
The US government, however, argues that “features of the

U.S. common law system, U.S. constitutional protections for
criminal defendants, and the U.S. jury system are different than
those that apply in most other countries. ICC prosecutors may
not understand, or may disagree with the operation of these
aspects of our system in particular cases. This could lead the
ICC to deem actions taken by the U.S. to be inadequate and to
prosecution of U.S. persons by the ICC.”68
If this argument is serious, it still is not good. First of all, no
State, not even the United States of America, may consider itself
at the apex of civilization in general and of legal culture in
particular in such an exclusive manner that all its institutions
and procedures are ipso facto superior to that of all other States.
Even the United States must be ready to check its own system
on the basis of the systems of comparable States. If the United
Kingdom, with its common law tradition including the trial by
jury, sees not difficulties in becoming a party to the Statute of
the International Criminal Court, why should it be impossible
for the United States? And can the US legal system rightly claim
to be superior to that of, e.g., France or Germany?
Second, evaluation of national proceedings by the ICC
prosecutor and the three-judge panel will not be carried out in
formalistic manner, considering certain aspects of criminal
procedure in a particular State to be a priori incompatible with
the administration of criminal justice, as long as these aspects
still permit to effectively prosecute and convict criminal
offenders. It is therefore not the legal system as such that will
determine the outcome of the evaluation of the proceedings in
question but the way in which the means offered by that legal
system to bring criminals to justice have been handled in the
particular case. A détournement de justice cannot claim the same
respect as the outcome of a fair trial.69
68
Frequently Asked Questions About the U.S. Governments Policy Regarding
the International Criminal Court (ICC): Why are the protections provided for
under the Rome Statute insufficient to meet U.S. concerns? Answer No. 3.
69
The use of the notion of fair trial seems quite appropriate here because
a fair trial has to do justice not only to the accused but also to the victims of a
The second serious argument is related to the first inasmuch

as it also concerns the function of the ICC prosecutor. But while
the first argument rest on the assumption that the prosecutor and
possibly the whole Court might not be able to appreciate the US
legal system, the second argument draws on the possibility that
the prosecutor and the judges of the International Criminal Court
might be biased against the United States and might therefore
engage in “politicized prosecutions or other abuses.”70 According
to the US government this danger is due to the fact that “[t]he
Rome Statute creates a self-initiating prosecutor, answerable to
no state or institution other than the Court itself.”71
This argument confirms the finding presented above that the
United States and other great powers are not ready to submit to an
international criminal tribunal of general competence and prefer
tribunals with limited jurisdiction set up by the Security Council
where the permanent members are able to exercise their veto
and thus to de facto exempt themselves or their political clientele
from unwelcome international investigation and prosecution.
The position of the United States government vis-à-vis the
International Criminal Court is consistent with its claim that it is
the only State that lives up to the responsibility to protect peace
and human rights and to fight against terrorism and other forms
of international or transnational crime all over the world; and
that in doing so the United States should not be constrained by
legal rules and principles which would make the taking of
efficient measures impossible or too burdensome. The circumstances
under which the Guantanamo detention camp is operated by the
United States72 offer a good example for the United States point
of view.
crime and to the reasonable expectations of society as a whole in the

functioning of the legal system.
70
Frequently Asked Questions About the U.S. Governments Policy Regarding
the International Criminal Court (ICC): Why are the protections provided for
under the Rome Statute insufficient to meet U.S. concerns? Answer No. 5.
71
Ibid.
72
The visit of a group of experts from the United Nations Commission
on Human Rights scheduled for November 2005, was called off because –
The reluctance of the United States to submit to international

jurisdiction has a long tradition. It was demonstrated by the
Connally amendment to the US declaration accepting the
jurisdiction of the International Court of Justice which tried to
have the last decision of whether or not the submission was
applicable in a particular case reserved to the United States
itself.73 However, it is likely that such a reservation is illegal
and not capable of depriving the Court from its right to itself
decide on its jurisdiction in a particular case. 74 The Connally
amendment was not made an issue in the Nicaragua case where
the United States relied on other reservations which were all
held inapplicable by the Court.75 The United States then refused
to further participate in the proceedings 76 and for the future
according to the UN envoy in charge of investigating torture allegations

around the world Manfred Nowak – the United States had not accepted the
minimum requirements for such a visit. In February 2006, the UN group released
its report, which called on the U.S. either to try or release all suspected terrorists.
The report, issued by the Working Group on Arbitrary Detention, has the subtitle
“Situation of detainees at Guantánamo Bay.” UN Doc. E/CN.4/2006/120,
http://www.unhcr.org/refworld/country,,UNCHR,,CUB,,45377b0b0,0.html
(last accessed on 8. February 2015).
73
“[…] as determined by the United States.” Cf. Heribert Franz Köck
and Peter Fischer, Das Recht der Internationalen Organisationen, 1997, p.
281; Rudolf Dolzer, Connally Reservation, in Rudolf Bernhardt (ed.),
Encyclopedia of Public International Law, Vol. I, 1992, pp. 755 ff.
74
Cf. Stanimir A. Alexandrov, Reservations in Unilateral Declarations
Accepting the Compulsory Jurisdiction of the International Court of Justice,
1995, pp. 76 ff. (1. Reservation Excluding Disputes Falling under the Domestic
Jurisdiction of a State. 2. As Determined by the State Itself); Michla Pomerance,
The United States and the World Court as a “Supreme Court of the Nations:”
Dreams, Illusions, and Disillusion, 1996, pp. 222 ff. (Domestic Jurisdiction
and the Connally Amendment); John Francis Murphy, The United States and
the Rule of Law in International Affairs, 2004, pp. 250 ff. (The United States
and the Court’s Compulsory Jurisdiction).
75
Military and Paramilitary Activities in and against Nicaragua (Nicaragua
v. United States of America) (Jurisdiction and Admissibility), I.C.J. Reports,
1984, p. 392.
76
In this context, US Ambassador to the United Nations Jeane Kirkpatrick
stated that “[t]he [International] Court [of Justice], quite frankly, is not what
its name suggests, an international court of justice;” rather, “[i]t’s “a semi-
legal, semi-juridical, semi-political body, which nations sometimes accept and
sometimes don’t." Howard N. Meyer, When the Pope Rebuked the U.S. at the
withdrew its submission to the Court’s jurisdiction.77 Equally, the

United States has supported Israel in its defiance of the opinion
rendered by the International Court of Justice condemning Israel’s
for constructing a wall on Palestinian territory.78
Moreover, the second serious argument used by the US
government in this context is not good either. Neither the
character of the group of States which are parties to the ICC
Statute nor the composition of the bench of judges warrant the
fear that the Court may be biased against the United States and
would engage in politicized proceedings. Of course, what the
Court might not accept, because it is inacceptable is a conduct
that is unfettered by generally recognized legal restraints.
The United States governments states, in the first paragraph
of its apology entitled “Frequently Asked Questions About the
U.S. Government's Policy Regarding the International Criminal
Court (ICC),” that “[t]he U.S. does not seek to put its people
‘above the law.’” This might be conceded. But what the United
States openly tries to do in this context is to put itself above the
law. The law which the United States professes to adhere to is
not international law as interpreted and applied by the international
community as a whole or by its legitimate institutions; it is
international law as understood and practiced by the United
States, and therefore it is but her own law. And it is not unlikely
that this will result – whether intended by the United States or
not – in doing just this: putting US nationals and government
officials above the law.
World Court, in ‘American Society of International Law,’ 1997, http://www.

asil.org/un21/15oped.htm (last accessed on 8. February 2015).
77
US Department of State, Letter and Statement Concerning Termination of
Acceptance of ICJ Compulsory Jurisdiction, in ‘International Legal Materials,’
24 (1985), pp. 1742 ff.
78
Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion, I. C. J. Reports, 2004, p. 136.
7. Conclusions
The recognition of the common good as the object and

purpose of international law as it appears from the most essential
instruments adopted after World War II has also brought about
the recognition that punishment, were appropriate, has to be
universal; that international solidarity requires that States co-
operate in a world-wide administration of justice and that States
– where such administration of justice in their own hands is
likely to be ineffective – entrust international tribunals with this
task.
The issue of universality of punishment and the conclusions
to be drawn are sufficiently clear. All that remains is to convince
the still reluctant part of the international community of the need
to accept these conclusions.
Bibliography
Alexandrov, Stanimir A., Reservations in Unilateral Declarations Accepting

the Compulsory Jurisdiction of the International Court of Justice,
Kluwer, The Hague/ Boston, 1995.
Banchik, Mira, The International Criminal Court and Terrorism, in ‘Peace
Studies Journal,’ 3 (2003), pp. 1–19.
Dolzer, Rudolf, Connally Reservation, in Rudolf Bernhardt (ed.), Encyclopedia
of Public International Law, Vol. I, North-Holland, Amsterdam/ London/
New York/ Tokyo, 1992, pp. 755–756.
Fischer, Peter and Heribert Franz Köck, Völkerrecht, Linde, Vienna, 20026.
Fuchs, Helmut, Österreichisches Strafrecht. Allgemeiner Teil, Springer, Vienna/
New York, 20087.
Jeschek, Hans-Heinrich, Nuremberg Trials, in Rudolf Bernhardt (ed.), Encyclopedia
of Public International Law, Vol. III, North-Holland, Amsterdam/
London/ New York/ Tokyo, 1997, pp. 747–754.
Kant, Immanuel, Die Metaphysik der Sitten, in Kant’s gesammelte Schriften,
herausgegeben von der Königlich Preußischen Akademie der Wissenschaften,
Georg Reimer, Berlin, 1914, Band VI, pp. 203–493.
Kelsen, Hans, Reine Rechtslehre, Franz Deuticke, Vienna, 19602.
Kissinger, Henry A., The Pitfalls of Universal Jurisdiction, in ‘Foreign Affairs,’
80 (2001).
Köck, Heribert Franz, Recht in der pluralistischen Gesellschaft, Manz, Vienna
1998.
— Ist Art. 2 Zif. 7 SVN tot?, in ‘Österreichische Zeitschrift für öffentliches
Recht,’ 22 (1971), pp. 327–350.
Köck, Heribert Franz and Peter Fischer, Das Recht der Internationalen
Organisationen, Linde, Vienna, 19973.
Koschaker, Paul, Europa und das römische Recht, Beck, Munich, 19664.
Leidenmühler, Franz, Kollabierter Staat und Völkerrechtsordnung, NWV,
Vienna/ Graz, 2011.
Meyer, Howard N., When the Pope Rebuked the U.S. at the World Court, in
‘American Society of International Law,’ 1997, http://www.asil.org/
un21/15oped.htm (last accessed on 8. February 2015).
Murphy, John Francis, The United States and the Rule of Law in International
Affairs, Cambridge University Press, Cambridge/ New York, 2004.
Pomerance, Michla, The United States and the World Court as a “Supreme
Court of the Nations:” Dreams, Illusions, and Disillusion, Kluwer, The
Haag/ Boston, 1996.
Rauschning, Dieter, Katja Wiesbrock and Martin Lailach (eds,), Key Resolutions
of the UN General Assembly, 1946–1996, Cambridge University Press,
Cambridge, 1997.
Röling, Bert V. A., Tokyo Trial, in Rudolf Bernhardt (ed.), Encyclopedia of
Public International Law, Vol. IV, North-Holland, Amsterdam/ London/
New York/ Tokyo, 2000, pp. 863–866
Rubin, Alfred P., Piracy, in Rudolf Bernhardt (ed.), Encyclopedia of Public
International Law, Vol. III, North-Holland, Amsterdam/ London/ New
York/ Tokyo, 1997, pp. 1036–1040.
Ruda, José Maria, States, Fundamental Rights and Duties, in Rudolf Bernhardt
(ed.), Encyclopedia of Public International Law, Vol. II, North-Holland,
Amsterdam/ London/ New York/ Tokyo, 1995, pp. 673–682.
Schlosser, Hans, Grundzüge der Neueren Privatrechtsgeschichte.
Rechtsentwicklungen im europäischen Kontext, UTB, Heidelberg, 200510.
Scelles, Georges, Précis de droit des gens: principes et systématique, Dalloz,
Paris, 1932.
Steinberger, Helmut, Sovereignty, in Rudolf Bernhardt (ed.), Encyclopedia of
Public International Law, Vol. IV, North-Holland, Amsterdam/ London/
New York/ Tokyo, 2000, pp. 500–521.
Sunga, Lyal S., The Emerging System of International Criminal Law: Developments
in Codification and Implementation, Kluwer, The Hague/ Boston, 1997.
Verdross, Alfred, Abendländische Rechtsphilosophie, Springer, Vienna, 19642.
— Der klassische Begriff des bonum commune und seine Entfaltung zum
bonum commune humanitatis, in ‘Österreichische Zeitschrift für öffentliches
Recht,’ 28 (1977), pp. 143–162.
Wesener, Gunter; Zu den Anfängen der Historischen Rechtsschule romanistischer
Richtung in Österreich, vornehmlich zu Ludwig Arndts von Arnesberg
(1803–1878), in Thomas Olechowski, Christian Neschwara and Alina-Maria
Lengauer (eds.), Grundlagen der österreichischen Rechtskultur. Festschrift
für Werner Ogris zum 75. Geburtstag, Böhlau, Vienna/ Cologne/ Weimar,
2010, pp. 577–600.
Wieacker, Franz, Privatrechtsgeschichte der Neuzeit unter besonderer
Berücksichtigung der deutschen Entwicklung, Vandenhoeck & Ruprecht,
Göttingen 19672.
Guglielmo Siniscalchi 309
Guglielmo Siniscalchi
Escape … to Alcatraz —
Rechtsgefühl, Punishment and Prison Movies
1. Escape ... to Alcatraz
An image portrays a prison wall pierced by the knife of a

man who appears in the chiaroscuro between the cracks of a cell.
The escaped prisoner has Clint Eastwood’s face and the words
beneath the image of the movie poster “recite” the title of one
of the most famous Hollywood prison movies: Escape from
Alcatraz [1978] directed by Don Siegel. A “representative”
image that seems to invite the viewer to gaze through the cracks
of the cell in order to see an area which would otherwise be
invisible and inaccessible: the prison, with its inevitable “corollary”
of tales of violence and escape, abuse of power and small acts of
everyday (in)humanity.
Undoubtedly, in the last century the cinema was one of the
most powerful epistemological tools able to “cross” the threshold
of prisons and solitary prison cells, to tell, often critically, stories
about prison life and prison conditions, allowing the wide
audience to learn more about problems and issues which would
otherwise be impenetrable to the eye of a common man [plain
man]. If there is a view that has contributed to the construction
of a collective and universal consciousness of prison and prison
sentence, it is definitely the one open up by the cinema eye.
With at least two paradoxes.
2. Two paradoxes
The first concerns the relationship between gaze and object.

The rise of a trend of films inspired by events occurred in prison
in the second half of the 20th century is inversely proportional
to a prison policy which tends to make prisons and cells of

confinement less “transparent” and accessible to an external
audience. Indeed, the commercial success of many prison movies
is likely due to the curiosity aroused in the viewer by exploring
through the cinema these “invisible” areas. The more the filmed
object becomes in a actual fact inaccessible, the greater the
desire to observe simulacra and film reconstructions becomes.
And here comes the second paradox. Although it is true that
the cinema has been one of the magnifying glasses with the
privilege of telling stories about the prison, in actual fact this
chronicle has not always been faithful to reality. The subtle
“game of genres” has often contributed not a little to the dilution
of the dose of “realism” in prison movies, thereby also mitigating
the critical force. Paradoxically, while one has the impression of
knowing about a difficult and obscure reality through film
images, in actual fact a mise-en-scène, where the prison is only a
place of “fiction,” more appealing than others for enrolling
stories of strong emotional impact or high narrative content
tension, is perceived. Probably, the more the focus is on the
representation, the less reality is known.
But the two paradoxes also reveal how the cinematographic
experience of the prison movie is particularly interesting
because, in Michel Foucault’s conceptual lexicon, it is located at
the intersection between two “regimes of visibility:” the “regime”
which, in the last century, shut out the external view onto the
reality of the modern prison, and the “regime” which, from the
1930s onward, opened up a new form of view reinvented by the
practices of cinematic fiction (film, documentaries, posters, TV
series). It is this very intersection of two different “regimes of
visibility” that makes the prison movie an excellent theoretical
object for understanding to what extent the expressions of visual
language are relevant to legal epistemology and discourse.1 If
1
Regarding the significance of the concept of “regime of visibility” in
Foucault cf. Martin Jay, Downcast Eyes. The Denigration of Vision in
Twentieth-Century French Thought, 1994; and Gary Shapiro, Archaeologies
of Vision. Foucault and Nietzsche on Seeing and Saying, 2003; and, more
the cinema, and the visual arts, have become one of the few
magnifying glasses on a dark and complex phenomenon such as
the prison, how has the visual language contributed to the
knowledge and legal perception of the prison reality? In other
words, can the analysis of a film “genre,” as the “prison movie,”
be useful to think critically over such detailed legal phenomena
as the prison and the prison sentence? Or is it just a great
celluloid “game” that does not affect the understanding of such a
restricted and complex world? Here are some questions that
involve visual language and legal thought.2
3. The thesis
The thesis on the basis of this debate aims at proving how

the analysis of prison movies is significant not only for what
Lawrence W. Friedman defines “external legal culture,”3 but also
for the legal-philosophical discourse. In other words, even though it
is the film “genre,” the narration of prison movies allows bringing
“empathically” the spectator to the world of detention and prison
life. If the “genre” films don’t often manage to provide a realistic
view of the tale, it is true that the narrative dynamic manages to
recently, relatively to the aesthetic-artistic field, Jospeh J. Tanke, Foucault’s

Philosophy of Art. A Genealogy of Modernity, 2009.
2
For an early analysis of the epistemological paradoxes raised by prison
movies cf. Claudio Sarzotti and Guglielmo Siniscalchi, Il carcere e la dis-
misura della pena. Una ricerca sulle locandine dei prison movies, in Agata
Amato Mangiameli, Carla Faralli and Maria Paola Mittica (eds.), Arte e
limite. La misura del diritto, 2012, pp. 341–367. For a more in-depth reading
on the significance of the construction of the legal discourse of prison movies
and advertising posters of these films refer once again to: Claudio Sarzotti
and Guglielmo Siniscalchi (eds.), eVISIONI. Il carcere in pellicola, collage e
graffiti, 2013.
3
For “external legal culture” Lawrence W. Friedman means all
representations, opinions and attitudes concerning the legal aspects of those
individuals who work outside “the magic circle of law”, i.e. non-jurists in the
proper sense. For a reconstruction of this issue in specific reference to prison
cf. Claudio Sarzotti, Il campo giuridico del penitenziario: appunti per una
ricostruzione, in Emilio Santoro (ed.), Diritto come questione sociale, 2010,
pp. 181–236.
involve the spectator emotionally arousing in the audience a

universal feeling of (in) justice.4 Indeed, as it will be seen once
again in a paradoxical manner, precisely the narratively less
“realistic” moments are the ones that most impress the viewer’s
eye by helping to build a “critical” image of the prison system.
This thesis is based on three theoretical steps. (i) First the
attempt to define the subject of the inquiry, that is the “prison
movie,” cutting out the semantic boundaries within the policy of
“genre” films; (ii) then the analysis of three incisive examples of
movies where the explicit “realistic” vocation is jeopardized by
the production requirements “imposed” by the rules of “genre;”
(iii) finally, the re-analysis of the same movies in a different
light: not questioning the likelihood between image and reality,
but the effects produced by these images on the audience.
Precisely these effects build up within the audience a legal
feeling [Rechtsgefühl] of universal disapproval of the prison
system and some special detention regimes.5
4
Curiously, one of the characteristics of the prison movie as a filmic
“genre” is precisely the inversion of the roles of victim and perpetrator: the
prisoner/protagonist role generally intended as victim of guards, medical
staff, prison directors radically reversing the physiological dynamics of life
real. On this matter, cf. Claudio Sarzotti and Guglielmo Siniscalchi, Il
carcere e la dis-misura della pena. Una ricerca sulle locandine dei prison
movies, in Agata Amato Mangiameli, Carla Faralli and Maria Paola Mittica
(eds.), Arte e limite. La misura del diritto, 2012, pp. 341–367.
5
On the legal significance of the concept of ‘Rechtsgefühl’ regarding the
posters of prison movies, cf. Guglielmo Siniscalchi, Rechtsgefühl e mondi di
celluloide. Le potenze del falso nelle locandine dei prison movies, in Claudio
Sarzotti and Guglielmo Siniscalchi (eds.), eVISIONI. Il carcere in pellicola,
collage e graffiti, 2013, pp. 48–63. My thesis takes up the legal arguments on
legal aesthetics by Antonio Incampo. Cf. Antonio Incampo, Metafisica del
processo. Idee per una critica della ragione giuridica, 2010, pp. 59–111;
more specifically on ‘Rechtsgefühl’ cf. pp. 68–71. In the extensive literature
dedicated to this concept by the German literature I will simply point out:
Sigmund Kornfeld, Das Rechtsgefühl, in ‘Zeitschrift für Rechtsphilosphie,’ 1
(1902), pp. 136–187; Gustav Rümelin, Rechtsgefühl und Gerechtigkeit, 1948;
and Ernst-Joachim Lampe (ed.), Das sogenannte Rechtsgefühl, 1985. I
should mention that one of the earliest uses of the term and concept of
‘Rechtsgefühl’ in legal science is in Rudolf von Jhering, Der Kampf um’s
Recht, 1872.
4. In search of a definition
Before moving forward, the semantic boundaries of the

subject of this analysis, the prison movie, must be drawn. If
from a historical point of view there is no doubt that the trend of
prison movies arose in Hollywood studios around the thirties of
the last century, it becomes definitely more difficult to try to
provide a definition of this kind of films. Over the years, the
prison movie has been contaminated by other film genres (from
Noir, Slapstick Comedy to Horror and Soft and Hard Core
drifts ...) undergoing a continuous metamorphosis which has
made the possibility of building an unambiguous and semantically
“strong”6 definition elusive. That is why, rather than venturing
out in search for a definition, it is more advisable to find some
narrative patterns, production strategies, elements of the mise-
en-scène which occur with more or less frequency in every
Hollywood prison movie.7
Firstly, the spatial element. The prison movies are immediately
characterized because the mise-en-scène is “squared” along the
impassable borders of a maximum security prison. The cells, the
infirmary, the corridors and rooms of the prison director are
6
For a historical reconstruction of the prison movie, cf. Bruce Crowther,
Captured on Film. The Prison Movie, 1989; James Robert Parish, Prison
Pictures from Hollywood, 1991; David Wilson and Shaun O’Sullivan, Images of
Incarceration: Representations of Prison in Films and Television Drama,
2004; Vito Attolini, Fuga dalla grande casa. Il film carcerario americano
1930–60, in Claudio Sarzotti and Guglielmo Siniscalchi (eds.), eVISIONI. Il
carcere in pellicola, collage e graffiti, 2013, pp. 90–103; Anton Giulio
Mancino, Jailhouse shot: il film carcerario fra teoria, tradizione e rinnovamento,
in Claudio Sarzotti and Guglielmo Siniscalchi (eds.), eVISIONI. Il carcere in
pellicola, collage e graffiti, 2013, pp. 104–127.
7
In these pages regarding the controversial and debated concept of
“genre,” an “anti-essentialist” theoretical perspective is adopted, i.e. there is
no attempt to identify a semantically “strong” core concept able to explain
what a prison movie is, but the production strategies in relation to the perception
of the film product from the audience is discussed. For a reconstruction of the
debate among “essentialist” and “anti-essentialist” cinematic theories and in
the field of literary genres cf. Rick Altman, Film/ Genre, 1999 and, in French,
Raphaelle Moine, Les genres du cinéma, 2002.
almost exclusively the theater where the action is filmed by the

camera. The prison movie is a genre characterized essentially by
the mise-en-scène, by the “concentrationary” space that ends up
narrowing up even the spectator’s gaze.8
The second element relates to the conduct of the action
marked by tight timing aimed at a single final event: the escape
of the protagonist [prison break movies or prison escape movies]
or the riot of prisoners [prison riot movies]. The first case
usually occurs when the film has as its protagonist a man
unjustly condemned, while the prison riot connotes those prison
movies which have a strong vocation for social protest: if the
prisoner wrongly convicted “accuses” a legal and procedural
system incapable of ascertaining the truth of facts, the riot
demonstrates very often the harsh conditions of detention and
the harassment the prisoners are subject to by guards, medical
personnel or by the director of the prison. It must be remarked
that, from the historical point of view, the prison movie was
born in America in the early thirties right because of the pressure
of the riots in the prisons of Dannemora and Auburn, of the first
major public debate on prison reform, and of a number of
theater plays that strongly denounced the inhuman detention
conditions in some prisons. Finally, the third characteristic
feature concerns the narrative point of view: the narrated events
are generally filtered through the eyes of a hero-prisoner,
possibly innocent, ready to identify with the gaze of the viewer
and to oppose to other “institutional” roles whose traits are
usually negative. In some cases, especially when the movie is
about prison reform, the character of the hero-prisoner is
replaced by the director of the prison, who embodies the legal
and institutional processes aimed at further “humanization” of
the size of the prison.
8
On framing as a limitation of the gaze of the viewer and the deep bond
between film language and mise-en-scène of the prison movie cf. Anton
Giulio Mancino, Jailhouse shot: il film carcerario fra teoria, tradizione e
rinnovamento, in Claudio Sarzotti and Guglielmo Siniscalchi (eds.), eVISIONI. Il
carcere in pellicola, collage e graffiti, 2013, pp. 104–127.
The three elements are crucial for achieving the identification

between spectator and protagonist and for creating empathy
between the audience’s expectations and the dynamics of the
narration. On the one hand, the trend is to identify the viewer
with a hero falsely accused and imprisoned, therefore, the victim
of a serious injustice; on the other hand, the viewer is emotionally
involved in a narrative structure marked by the great rhythm
consisting of the implementation of a plan to escape from prison
or the outbreak of a riot. As in the following, this empathic
identification process between screen and viewer will be critical
for the focus on the possible epistemological relationship which
links legal knowledge to the representation of prison issues in
prison-movies.
If it is true that these three points are the cornerstone of the
“classical” Hollywood prison movie, it must be remarked that
the cinematographic representation of prison has often been
contaminated by other “genres,” including within the narrow
spaces of prisons and along the narrative climax plans of escape
and uncontrollable riots, western scenarios, noir hues, mafia and
dangerous gangster stories, war prisoner and Nazi war criminal
stories. In addition, some real “sub-genres” of the prison movie
as the one dedicated to women’s prisons called women in prison,
with all its soft and hard core scatterings, or the trend inspired
by juvenile delinquency or detention in psychiatric institutions
must be mentioned.
The prison movie proves to be a plastic and particularly
malleable film subject, a genre continuously reshaped by production
strategies, rather than directing strategies, which eventually show
an image of the prison which is “altered” and always filtered
through the distorting lenses of other cinematic “genres” or stories
aimed at capturing the viewer’s attention rather than forcing the
viewer to reflect on the problems immediately shown on the
screen. This is why the impression gotten by scrolling through
the images of most of the prison movies is that these products do
not have any relevance to the legal discourse, but are only
divertissement devoid of realism and critical view regarding the
represented events and situations.
But is it really so?
5. Three paradigmatic cases

Three movies set in prison that belong to the genre of prison
movies produced by Hollywood studios in a time span ranging
from the thirties to the early eighties of the last century are
considered. The movies are I am a fugitive from a chain gang
[1932] directed by Mervyn LeRoy, Birdman of Alcatraz [1962]
directed by John Frankenheimer, and Brubaker [1980] directed
by Stuart Rosenberg. Three prison movies that combine high
voltage and social exposé, criticism and performance, and, no
less importantly, tell all the chronicle facts and events of that
time relevant to the public debate on the function of prison.
Through the analysis of these films in terms of relationship
between reality and images it seems that the rules of “genre”
immediately falsify the realism of the representation. Let’s see how.
Mervyn LeRoy’s film is a clear example: the story is
inspired by the autobiography of Robert E. Burns who, at the
time the movie was released, was still a fugitive and is a clear
indictment of the brutal conditions of detention the prisoners
forced to labour in the prisons of South America, particularly in
the penal colonies of Georgia, during the period of the Great
Depression, were subjected to. In LeRoy’s movie, in addition to
numerous other films inspired by prison produced by Warner
Bros. in the same years, the exposé of the conditions of the
prisoners is tempered by the noir atmosphere, the many references
to another rising Hollywood genre in this period, such as the
“gangster movie,” and some sentimental aspects which turn the
strong colors of the narration to the muted, but more appealing
colours of sentimental drama especially addressed to the women’s
audience. In particular, the very references to the gangster movie
move the axis of narrative tension from the critical plane of the
conditions of detention to the less slippery surfaces, which are
more suitable for the tastes of the audience at the time of
shootings, chases and high emotional impact stories.
Thus, from the start the prison movie appears as a contaminated
film genre, always “forced” to mediate between audience’s taste
and stories of exposé, rules of “genre” and aspirations to photograph
the darkest corners of a shocking reality, such as prison.
In 1962 a movie produced by the studios tries to affect the

public opinion on the effects of the policies of prison reform:
Birdman of Alcatraz, another movie based on a biographical
story, inspired by an event actually occurred (“Robert Stroud an
American, a real man, a real story” is recited in the trailer of the
movie ...), and deeply critical of the American prison system.
The protagonist is Robert Stroud, who after having killed a
guard during his detention for another previous murder, thanks
to the intercession of his mother with the President of the United
States, manages to obtain that the death penalty is commuted to
a life sentence with the aggravating circumstance of isolation.
Moreover, it is thanks to loneliness that the protagonist, through
a deep inner journey of redemption, manages to become a
world-renowned ornithologist until the subsequent transfer to
the prison of Alcatraz, with its harsh regime of detention,
induces Stroud to write a real essay on the futility of isolation
and “hard” imprisonment to rehabilitate those who are guilty of
an offense against the society.
Flipping through the large “catalogue” of Hollywood prison
movies Birdman of Alcatraz is probably one of the most
attentive to the realism of the mise-en-scène and materialization
through Burt Lancaster’s performance, of the counter-productive
effects of some prison systems. However, as noted, even among
these framings, which seem to be different from the classical
pattern of the prison movie, director and producers do not give
up, especially in the first part, the typical mechanisms of the
narrative “genre” cinema: from the representation of a jailer with
cruel features to brutal clashes between prisoners and officers to
the possible plans of escape of prisoners, Frankenheimer’s
movie complies with all the characteristics of a typical prison
movie; in the second part, these features, in line with the path
of redemption undertaken by the protagonist, fade into an
atmosphere closer to sentimental and existential intimate drama
tones, competing with successful movies released in those years
by directors such as Douglas Sirk and Joseph L. Mankiewicz.
Thus, even a more clearly “reformist” movie as the one by
Frankenheimer does not resist the temptation to get involved
with other film “genres” in order to attract the gaze of the

audience among the cells and the claustrophobic environment of
the prison.
The tendency to mix entertainment and social exposé is also
evident in the third film “case” to be analysed: Brubaker, a film
directed in 1980 by Stuart Rosenberg and starring Robert
Redford. This time the script was inspired by a true story as the
others: the story of Thomas Murton criminologist who, during
the 60s of the last century, became the director of the prison in
Arkansas, where he tried to introduce some “democratic”
reforms of imprisonment which led him to resign because of an
irreconcilable conflict with the world of politics; a professional
and existential experience from which Murton issued, co-writing
it with Joe Hyams, Accomplices to the Crime: The Arkansas
Prison Scandal [Grove Press, 1969], which was a key text for
public discussion on the lack of reforms of the prison system in
the United States. Obviously it is up to Redford in the role of the
criminologist to lead a prison where abuse over abuse of
prisoners are shown in a prison movie that, despite being clearly
conceived as an act of condemnation of a prison system (it must
be recalled that Murton himself wrote the script), it also catches
the attention of the audience through clichés and stereotypes of
the “genre” cinema.
Indeed, Brubaker proves to be a very interesting film from
this point of view because the mix between “realism” and fiction
is introduced through a subtle narrative “filter:” the “game” of
points of view. If Murton’s issue has a sociological and essay
kind of structure, the movie by Rosenberg – former director of
another famous prison movie such as Cool Hand Luke starring
Paul Newman [1969] – approaches the viewer’s gaze to the set
by building in the initial part of the movie an “internal point of
view” within the narration which is absent in the book: the
perspective of the future director of the prison who decides to
pretend to be a common prisoner in order to live from the inside
the injustices and problems of a repressive prison system, which
is totally inadequate to pursue strategies for social rehabilitation
of prisoners. Moreover, it is through the perspectives opened up
thanks to this “internal point of view” that the director ends up

“diluting” the reformist message of Murton’s essay: a series of
sequences with a high rate of violence and performance
transform Brubaker into a strong emotional impact work, which
is always able to engage the viewer within a growing climax,
but, reasoning in a likelihood view, which is too biased towards
action cinema to be totally believable as a visual document of
accusation and reflection.
6. F for Fake
The three movies analysed herein are, in short, paradigmatic

cases of prison movies produced in different times by Hollywood
studios that cannot free themselves from the rules of “genre”
cinema, even though they are rooted in real life stories and
characters. Indeed, the observance of certain narrative rules and
stereotypes takes “realism” away from the filmed events
jeopardizing the possibility that these films may offer an
epistemological tool for constructing a “critical” view of what
happens in actual fact far away from the “external” view as the
prison.
A scholar of American film genres, such as Rick Altman is
right when stating that the function of “genre” films is primarily
to build a space in the collective consciousness where the viewer
can identify himself or herself with out of the ordinary situations
– for instance through the possibility to assume the role of a
prisoner ready for the escape – being aware of “participating”
only in a fiction work. The prison movies create within the
audience thrills and tension, fun and sometimes also “cruel”
entertainment, which is able to meet more a voyeuristic desire of
the observer than the real needs of social criticism.
This explains why cinema can be compared to other cultural
phenomena that provide moments of entertainment created and
controlled by culture itself. The representations of prison offered
by prison movies, even the most “critical” as those analysed
herein, end up looking like a small visual amusement park,
where the message seems to be shipwrecked among the rules of

“genre” cinema: the need, for example, to include passionate or
sentimental implications in the plot, or some stereotyped figures
(the reformist director of the prison, the sadistic guard, the older
and disillusioned cellmate ...), on the one hand “reassures” the
viewer, on the other hand makes the representation of prison life
a lot less believable. The risk is that prison may be one of the
many sets, more interesting than others precisely because it is
invisible, where Hollywood loves to set films intended to be
undoubtedly commercially successful. In this context it does
seem that the prison movie is just a great celluloid game, with no
intention to produce a significant effect on the legal understanding
of such a complex phenomenon as the prison world. If there is
no doubt that the cinema, from the sociological point of view,
has decisively contributed to influencing the perception of
universal prison experience in a legal-philosophical perspective,
the prison movie genre does not seem to be an epistemological
tool capable of opening up significant horizons on prison experience.
The rules and codes of the cinematic “genre” extremely falsify
the realism of the mise-en-scène in order to offer in return a true
representation of such a complex and multifaceted “institutional
fact.”9
There would be a negative answer to the original question,
unless what Gilles Deleuze, in a memorable chapter of Cinema
II: Time-Image dedicated to Nietzsche and to Orson Welles’
cinema called “The powers of the false”10 was explored. If cinema
is the realm of fiction, a great machine producing simulacra, then
maybe questioning the realism or likelihood of the representation
9
Cfr. Rick Altman, Film/ Genre, 1999. For a reconstruction of the social
and cultural function of filmic “genres” within the prison movie cf. once
again: Claudio Sarzotti and Guglielmo Siniscalchi, Il carcere e la dis-misura
della pena. Una ricerca sulle locandine dei prison movies, in Agata Amato
Mangiameli, Carla Faralli and Maria Paola Mittica (eds.), Arte e limite. La
misura del diritto, 2012, pp. 341–367.
10
Gilles Deleuze, Cinema II: The Time-Image, 2013. On the philosophy
of cinema by Gilles Deleuze and the “powers of false” cf. at least: David N.
Rodowick, Afterimages of Gilles Deleuze’s Film Philosophy, 2010; and
David N. Rodowick, Gilles Deleuze’s Time Machine, 1997.
does not make sense. It would be more advisable to try to

investigate philosophically the expressive power of the filmic
language. Beyond any possible more or less true representation,
cinema is a corpus of signs and images, optical and aural
experiences that can stir emotions and impressions (Deleuze
would call them “affections”) relevant to the legal discourse. If
the sequences of prison movies do not accurately reflect reality,
it cannot be taken for granted that these idols reverberate effects
of truth on their recipients. As recently written by the jurist
Gunther Teubner about the relevance to the legal discourse by
Franz Kafka “the real literary message is not in the content, but
in something that cannot be communicated verbally,” in the
expressive power, moreover, of the artistic – figurative, literary,
cinematic – language which can show the darker forces and
“passions” which flow under legal forms; or materialize, with a
single gesture or a single image the immediate sense of justice
or injustice within decisions or legal institutions; or, again,
capture special representative details of the complex and layered
universe of law which otherwise would be non-communicable
through rules, treaties of legal dogmatics or essays on legal
theory.11 This is the reason why it makes no sense to question
the likelihood of these representations: it is just a matter of other
“fictions,” of artistic inventions that probably should be
investigated in relation to the side effects they produce on the
target audience.
If we were to transfer these reflections to the cinematic
universe built, not “represented,” by prison movies, we would
realize immediately how the alteration of the reality effect of the
narration through contamination with the rules of “genre” in the
three movies previously reviewed ended up affecting the
11
Cf. Gunther Teubner, The Law before Its Law: Franz Kafka on the
(Im)Possibility of Law’s Self-Reflection, in ‘Ancilla Juris,’ 2012, pp. 176–203
and in ‘German Law Journal,’ 14 (2013), pp. 405–422. According to Teubner
the task of capturing and showing the irrational forces that cross the
world of law and contribute significantly to what the German author calls
“de-paradoxification” of the legal universe is assigned to literature, in the
broadest sense.
representative value of these works of art, but did not involve the
expressive power of film language. In actual fact, paradoxically,
the mix between reality and fiction manages, through the
construction of the mise-en-scène, to bring empathically the viewer
to the world of prison amplifying contradictions, emotions,
sensations, and feelings of injustice which are released within
the prison institution. The cinema “powers of the false” lie in the
ability that some images have to immediately impress the
spectator’s imagination, conveying impressions of truth about
prison life, perhaps with an even greater impact than the words
used by a legal essay or, in accordance with cinema, by the
framings of a documentary.
Some images and representative features of the mise-en-
scène of the three prison movies previously examined are
considered in the following. If it is true, as shown, that the rules
of “genre” blunt the edges of the realism of the narration, it is
also true that, when the images are contaminated and “falsified,”
they produce effects of truth on the viewer arousing critical
feelings about the detention condition.
7. Iconic (un)justice
As mentioned, the film by Mervyn LeRoy entitled I am a

fugitive from a chain gang began as an indictment against the
inhuman conditions of those who were sentenced to forced
labour in America’s Great Depression. The film features numerous
sequences set in the labor camps, with images that tell through
raw realism, especially in consideration of the film standards of
that time, about a situation which was a genuine social emergency.
Yet, on closer inspection, perhaps the most evocative sequence
on metaphorical deprivation of any possible future for those who
have been sentenced to forced labour, is not carried out behind
the bars of a cell or among the chains of a detention camp, but
during the escape of the protagonist.
It was still Gilles Deleuze in Cinema 1: Movement-Image
who recalled this short vision “passage” in his brief discussion
on the composition of the cinematic framing: regarding the

presence of geometries and surfaces that pass through each
framing, Deleuze recalls quickly the frames of the movie by
LeRoy where the skylines and water seem to merge while the
mirrored surface of a lake “hides an escaped prisoner at the
bottom.” Why is this framing so interesting? By looking carefully
and following what that the Deleuze quotation itself suggests
implicitly, at least two components immediately strike the
viewer’s gaze.12
(i) Firstly, the face immersed in water immediately arouses
a feeling of suffocation which refers to the condition of those
who are imprisoned behind bars, amplifying the sense of
claustrophobia.
(ii) But there is more. It is precisely the way in which
LeRoy builds up this framing that “materializes” in the viewer
the feeling of an inescapable fate which affects the protagonist: the
choice of letting the body of the escaped prisoner disappear in the
folds of an imaginary line where the elements of nature (air and
water) seem to visually emphasize that there is no salvation for
those who end up in the mechanisms of the hellish prison system.
Outside of prison the elements of nature “tighten” the body of the
condemned, as if they emphasized the irreversible “naturalness”
of this condition. A single framing, which also contaminates the
prison movie with the “rules” of another successful trend in
those years, such as the gangster movie (it is a sequence of
“manhunt”), contains all the meaning and the plot of the film by
LeRoy: the impossibility of redemption for those who end up in
inhuman mechanisms of the prison system in America in the
20s.13
12
Gilles Deleuze, Cinema 1: Movement-Image, 1986.
13
The idea of an inevitable fate which characterizes the “classical”
Hollywood production of the prison movie is suggested by Vito Attolini in:
Fuga dalla grande casa. Il film carcerario americano 193 0–60, in Claudio
Sarzotti and Guglielmo Siniscalchi (eds.), eVISIONI. Il carcere in pellicola,
collage e graffiti, 2013, pp. 90–103.
Let’s move on to the second film examined herein: Birdman

of Alcatraz. In this case it is shown as well as in the others how
the realism of the mise-en-scène of this other biographical story
is often affected by the commercial logic and production strategies
of the “genre” cinema. A deeper look, however, reveals that
precisely these moments, inserted to catch the attention of the
audience, are more interesting for the philosophical and legal
analysis. “Falsifying,” once again, the truth of the mise-en-scène,
these framings manage to hit the gaze sensitizing the viewer’s
attention on the problems of the prison system in a manner
which is likely more effective than reading any document and
manual on life in prison. In Frankenheimer’s film there are two
interesting elements of the mise-en-scène: the use of black and
white and the insistence, especially in the construction of the
key sequences of the movie, on the framing in “close-up.” The
director manages, through the use of these film techniques, to
alter the realistic tone of the narration dilating the emotional
content of the personal story of the protagonist Robert Stroud. It
loses some likelihood, but it affects more effectively the
spectator’s gaze arousing a sense of revulsion towards a prison
system that seems geared only to “erase” the personality of the
prisoner. If white and black, which in some sequences assume
almost “expressionist” shades, contribute greatly to providing
the claustrophobic sense of isolation of the cells where Stroud is
locked up, it is up to the face of such an actor/icon as Burt
Lancaster in the close-up to involve affectively the audience.
In the cine-philosophical field, it was once again Gilles
Deleuze who defined the close-up as the “image-affection” re-
reading some basic steps of the theory by the Russian filmmaker
and theorist Sergei M. Eisenstein, David Wark Griffith and
German expressionism and connecting them to the techniques of
portrait painting: “There is no close-up of face, the face is itself
the close-up, the close-up is itself only the face, and both are
affection, affection-image,” says Deleuze. Without dwelling on
the complex and fascinating conceptual architecture of the
image-affection, it should be emphasized that the close-up is, in
the taxonomy of filmic signs “listed” by Deleuze, the image that
can touch with greater strength and intensity the emotions of the
spectator: the screen, “framing” the actor’s face, seems to
suspend any narrative space-time device, creating a crossing of
gazes between who is inside and who is in front of the screen.
The realism of the events filmed to get the spectator emotionally
“closer” to the suffering of the protagonist, to establish a “direct
contact” between the screen and the audience is of secondary
importance. Indeed, if we were to think in terms exquisitely
Deleuze type,14 we might say that the close-up, approaching the
framed person’s face ends up erasing all subjectivity, showing
the viewer the pure affection, suffering, in this case, as pure emotion,
as mood materialized by the expressive power of cinematic
language.15
So framings in the foreground and film in black and white:
if the first ones create an emotional contact with the figure of the
prisoner, the chiaroscuro of the atmosphere amplifies the negative
feelings of the spectator, providing that sense of claustrophobia
which only the images are able to recreate.
Finally, Brubaker. Here the true and false “game” does not
directly involve images and sequences, but the plot and the
construction of the script. As mentioned before, this movie relies
entirely, at least in the beginning, on the introduction of a
different narrative point of view within the classical scheme of
the prison movie: the eye of reformist/director of the prison
who hides among the prisoners in order to understand what
life in prison is like observing it from the internal point of
view. Therefore, in Brubaker the script itself “falsifies” the
autobiographical story of the book written by Thomas Murton
and Joe Hyams constructing an internal gaze which lacks in the
14
It should be recalled how the philosophy of cinema by Deleuze does
not provide, except in a few quick steps, the relationship between the screen
and the viewer, even though significantly, at the time wo issues on cinema
were released, Deleuze was interviewed on the relationship between cinema
and philosophy in Ritratto del filosofo come spettatore.
15
Cf. the chapters dedicated by Deleuze to “close-up” mainly in authors,
such as Bergman, Dreyer and Bresson in Gilles Deleuze, Cinema 1: Movement-
Image, 1986.
literary narration. And if it is true, as argued above, that this

perspective alters significantly the realism of the mise-en-scène,
it is equally true that, in virtue of this “new” gaze, the movie
director manages to arouse the strongest emotions in the
spectator. Not only for the process of identification between the
protagonist and the public, we have already encountered in the
dynamics of the prison movies, but also because in this case the
identification is not through the eyes of a prisoner, but through
the eyes of an honest man who wants to get a full account of the
inhumane conditions faced by prisoners in some prisons in
America in the 60s of the last century. Therefore, the process
that binds the spectator empathically to the movie is even more
powerful because the perspective is oriented right from the
beginning to involve the spectator in sequences where there is
always a mise-en-scène of violence to depict the injustice of a
certain type of prison system.
The perspective of the reformist director of the prison, who
plunges into the prison reality to understand directly its brutality
and inhumanity, is a narrative technique that ends up amplifying
the emotional involvement of the spectator: in this case the
action sequences, the restricted geometries of each framing, the
violence and corruption that characterize the setting of every
prison movie, are explicitly designed to impress the audience
negatively. It is true that the rules of “genre” falsify the reality
effect of the movie, but it is also true that, as in the previous
cases, these rules can provide images able to produce truth
effects on the audience.
Small icons of (in)justice which impress the senses of the
spectator providing universal feelings and critical emotions of
prison sentence and function of modern prisons without any
demand of likelihood.
Bibliography
Altman, Rick, Film/ Genre, The British Film Institute, London, 1999.
Attolini, Vito, Fuga dalla grande casa. Il film carcerario americano 1930–60,
in Claudio Sarzotti and Guglielmo Siniscalchi (eds.), eVISIONI. Il carcere
in pellicola, collage e graffiti, Edizioni Linfattiva, Barletta, 2013, pp. 90–104.
Crowther, Bruce, Captured on Film. The Prison Movie, B.T. Batsford, London,
1989.
Deleuze, Gilles, Cinema I: Movement-Image, Bloomsbury Academic, London,
2013.
— Cinema II: The Time-Image, Bloomsbury Academic, London, 2013.
Incampo, Antonio, Metafisica del Processo. Idee per una critica della ragione
giuridica, Cacucci, Bari, 2010.
Jay, Martin, Downcast Eyes. The Denigration of Vision in Twentieth – Century
French Thought, University of California Press, Berkeley, 1994.
Jhering, Rudolf von, Der Kampf um’s Recht, G.J. Manz’schen Verlag, Wien,
1872, 18742.
Kornfeld, Sigmund, Das Rechtsgefühl, in ‘Zeitschrift für Rechtsphilosophie,’
1 (1902), pp. 136–187.
Lampe, Ernst-Joachim (ed.), Das sogennante Rechtsgefühl, Westdeutscher
Verlag, Opladen, 1985.
Mancino, Antonio Giulio, Jailhouse shot: il film cacerario fra teoria, tradizione e
rinnovamento, in Claudio Sarzotti and Guglielmo Siniscalchi (eds.),
eVISIONI. Il carcere in pellicola, collage e graffiti, Edizioni Linfattiva,
Barletta, 2013, pp. 104–128.
Moine, Raphäelle, Les genres du cinéma, Éditions Nathan/ Armand Colin,
Paris, 2002.
Parish, James Robert, Prison Pictures from Hollywood, McFarland, Jefferson
(NC), 1991.
Rodowick, David Norman (ed.), Afterimages of Gilles Deleuze’s Film Philosophy,
University of Minnesota Press, Minneapolis, 2010.
— Gilles Deleuze’s Time Machine, Duke University Press, Durham, 1997.
Rümelin, Gustav, Rechtsgefühl und Gerechtigkeit, Klostermann, Frankfurt am
Main, 1948.
Sarzotti, Claudio, Il campo giuridico del penitenziario: appunti per una
ricostruzione, in Emilio Santoro (ed.), Diritto come questione sociale,
Giappichelli, Torino, 2010, pp. 181‒236.
Sarzotti, Claudio and Guglielmo Siniscalchi (eds.), eVISIONI. Il carcere in
pellicola, collage e graffiti, Edizioni Linfattiva, Barletta, 2013.
— Il carcere e la dis-misura della pena. Una ricerca sulle locandine dei
prison-movies, in Agata Amato Mangiameli, Carla Faralli and Maria
Paola Mittica (eds.), Arte e limite. La misura del diritto, Aracne, Roma,
2012, pp. 341–367.
Shapiro, Gary, Archaelogies of Vision. Foucault on Seeing and Saying, The
University of Chicago Press, Chicago & London, 2003.
Siniscalchi, Guglielmo, Rechtsgefühl e mondi di celluloide. Le potenze del falso

nelle locandine dei prison movies, in Claudio Sarzotti and Gugliemo
Siniscalchi, (eds.), eVISIONI. Il carcere in pellicola, collage e graffiti,
Edizioni Linfattiva, Barletta, 2013, pp. 48–63.
Tanke, Joseph J., Foucault’s Philosophy of Art. A Genealogy of Modernity,
Continuum, New York/ London, 2009.
Teubner, Gunther, The Law before Its Law: Franz Kafka on the (Im)Possibility of
Law’s Self-Reflection, in ‘Ancilla Juris,’ 2012, pp. 176–203 and in ‘German
Law Journal,’ 14 (2013), pp. 405–422.
Wilson, David and Shaun O’Sullivan, Images of Incarceration: Representations of
Prison in Films and Television Drama, Waterside Press, Winchester, 2004.
329
Acknowledgements
The editors, Antonio Incampo and Wojciech Żeƚaniec, would

like to thank Dr. Lisa Adams for her careful copy editing and for
her translation of the essays Don’t Kill Cain: Towards a Theory
of Mesofacts and Punishments by Antonio Incampo and What
Punishment in a “Brave Neuro World?” by Maurizio Sozio;
they would also to thank Dr. Patricia Clinca for her translation of
the essay Escape … to Alcatraz: Rechtsgefühl, Punishment and
Prison Movies by Guglielmo Siniscalchi, and Dr. Vince Fariello
for his help in revising some of the essays.
Last but not least, the editors would like to thank Dr. Piero
Marra for his unswerving hard work at compiling the indices of
this volume.
330
331
About the authors

Salvatore Amato, Full Professor of Philosophy of Law, Department of
Law, University of Catania, Italy; Member of the
National Bioethics Committee.
Diane Bernard, Post-doc Researcher at the Belgian National
Fund for Scientific Research (FNRS); Professor
at the University of Saint-Louis (Brussels), UCL
(Louvain) and ULg (Liège), Belgium; Visiting
Researcher at the Harvard Law School, Cambridge
(Massachusetts), USA.
Cristina Hermida del Llano, Professor of Philosophy of Law, King Juan Carlos
University of Madrid, Spain.
Antonio Incampo, Full Professor of Philosophy of Law, Department of
Law; Former Director of the Department of Criminal
Law, Criminal Procedural Law and Philosophy of
Law, University of Bari “Aldo Moro”, Italy.
Heribert Franz Köck, Emeritus Professor of Law, Johannes Kepler
University of Linz, Austria; Former President of the
Fédération Internationale pour le Droit Européen.
Matthew H. Kramer, Professor of Legal and Political Philosophy, Faculty
of Law, University of Cambridge, England.
Giuseppe Lorini, Associate Professor of Philosophy of Law,
Department of Law, University of Cagliari, Italy.
Hope Elizabeth May, Professor of Philosophy and Director of the Center
for Professional and Personal Ethics, Central
Michigan University, USA.
Maria Antonella Pasculli, Assistant Professor of Criminal Law, Department
of Law, University of Bari “Aldo Moro”, Italy.
Marek Piechowiak, Professor of Philosophy of Law and Head of the
Department of Theory, Philosophy and History of
Law, University of Social Sciences and Humanities,
Institut of Law (Branch Faculty in Poznań), Poland.
Gregorio Robles, Full Professor of Philosophy of Law, University
of the Balearic Islands (Palma de Mallorca),
Spain; Ordinary Member of the Royal Academy
of Moral and Political Sciences (Madrid), Spain.
Damien Scalia, Advanced Researcher at the Swiss National Science
Foundation and at the CRID&P (UCLouvain);
Invited Professor at the USL-Brussels, Belgium.
Guglielmo Siniscalchi, Assistant Professor of Philosophy of Law, Department
Maurizio Sozio, Assistant Professor of Philosophy of Law, Department
Leo Zaibert, Professor of Philosophy and Chair, Department
of Philosophy, Union College, USA.
Wojciech Żełaniec, Professor of Philosophy and Director of the
Chair of Ethics and Social Philosophy, Institute
of Philosophy, Sociology and Journalism, University
of Gdańsk, Poland.
332
Index 333
Białocerkiewicz, Jan,
INDEX
Adolphs, Ralph, Bianchi, Herman Thomas,

Alekseev, Konstantin Sergeevič: vide Bihrle, Susan,
Stanislavskij, Konstantin Sergeevič. Blair, Eric Arthur: vide Orwell, George.
Alexandrov, Stanimir A., Boed, Roman,
Alexy, Robert, Bobbio, Norberto,
Ali Ağca, Mehmet, Boella, Laura,
Alschuler, Albert W., Bogetto, Filippo,
Altman, Rick, Bonesana-Beccarìa, Cesare: vide Beccaria,
Amato Mangiameli, Agata Cecilia, Cesare.
Amato, Salvatore, Boraschi, Andrea,
Anscombe, Gertrude Elizabeth Margaret, Bowring, John,
Anthony Burgess: vide Wilson, John Bradley, Gerard V.,
Burgess. Braithwaite, John,
Arajärvi, Noora, Brentano, Franz [Clemens Honoratus
Arendt, Hannah, Hermann],
Aristotle [Aristoteles] of Stagira, Bresci, Gaetano,
Arriola, Juan Federico, Bressonn, Robert,
Ashworth, Andrew, Brodeur, Jean-Paul,
Attolini, Vito, Broomhall, Bruce,
Augustine [Aurelius Augustinus] of Brower, Montgomery C.,
Hippo, saint, Brubaker, Henry,
Aureli, Filippo, Buckholtz, Joshua W.,
Bufkin, Janal L.,
Bailleux, Antoine, Bukuluki, Paul,
Balcerzak, Michał, Bulygin, Eugenio,
Baldick, Robert [André Edouard], Burgh, Richard W.,
Banaszak, Bogusław, Burns, Jeffrey M.,
Banchik, Mira, Burns, Robert Elliot,
Banfield, Edward Christie,
Baron-Cohen, Simon, Cabral de Moncada, Luís,
Barton, Charles K.B., Callois, Roger,
Bassiouni, Mahmoud Cherif, Calsamiglia, Albert,
Baudelaire, Charles [Pierre], Camerer, Colin Farrell,
Baumann, Elizabeth, Camus, Albert,
Beitzel, Terry, Cancio Meliá, Manuel,
Benn, Stanley Isaac, Capraro, Laura,
Bentham, Jeremy, Carlsmith, Kevin Merrill,
Berghuis, Bert A.C., Carnegie, Andrew,
Bergman, Ingmar [Ernst], Cartuyvels, Yves,
Berhardt, Rudolf, Cassese, Antonio,
Bernard, Diane, Castle, Tammy L.,
Beccaria, Cesare, Chinchon, Alvarez Javier,
Chisholm, Roderick Milton, Dubber, Markus Dirk,

Christie, Michael G.A., Duff, R. Anthony,
Churchland, Patricia [Smith], Dundes Rentlen, Alison,
Cohen, Jonathan D., Dundes, Alan,
Connolly, William Eugene, Durkheim, David Émile,
Conte, Amedeo Giovanni, Dworkin, Ronald [Myles]
Corcuera Atienza, Javier,
Cordischi, Carla, Eastwood, Clint [vel Clinton Jr.],
Corlett, J. Angelo, Eberhard, Christophe,
Cozzolino, Roberto, Edmonds, David,
Crowther, Bruce, Ehrlich, Eugen,
Cryer, Robert, Ejzenštejn, Sergej Michajlovič,
Curfman, Gregory D., Ekstrom, Arne D.,
Cushman, Fiery, Elliot, Carl,
Cusson, Maurice, Ellul, Jacques,
Cuzzocrea, Vera, Engdahl, Ola,
Czeczko-Durlak, Anna, Engell, Andrew D.,
D’Agostino, Francesco, Etienne, Dumont,
D’Ascoli, Silvia, Eusebi, Luciano,
D’Aubigné, Théodore Agrippa,
Dahmer, Jeffrey Lionel, Fadiga, Luciano,
Damásio, António Rosa, Farrelly, Colin,
Damásio, Hanna, Fergusson, Ross,
Darley, John M., Ferracuti, Franco,
Davis, Donal Romain [vel Don], Ferrajoli, Luigi,
Davis, Michael, Fiandaca, Giovanni,
de Balzac, Honoré, Fife, Rolf Einar,
de Prada, Aurelio, Filangeri, Gaetano,
de Sade, Donatien Alphonse François Finnis, John [Mitchell],
[vel Marquis de Sade], Fish, Albert [Hamilton Howard],
de Sousa Santos, Boaventura, Flew, Antony [Garrard Newton],
de Vio, Thomas Cajetan [vel Gaetanus], Fogassi, Leonardo,
de Vitoria, Francisco, Foot, Philippa,
Deleuze, Gilles, Fornari, Ugo,
Delmas-Marty, Mireille, Foucault, Michel [Paul],
Di Giovine, Ombretta, Frankenheimer, John Michael,
Di Lucia, Paolo [Umberto Maria], Freedberg, David,
Diogenes Laërtius, Fried, Itzahk,
Dissel, Amanda, Friedman, Lawrence W.,
Dolinko, David, Fronza, Emmanuela,
Dolzer, Rudolf, Fuchs, Helmut,
Donini, Massimo, Fischer, Peter,
Dostoevskij, Fëdor [Michajlovič], Faralli, Carla,
Drazen, Jeffrey M.,
Dreyer, Carl Theodor, Gaeta, Paola,
Du Toit, Fanie, Gage, Phineas P.,
Index 335
Gallese, Vittorio, Huigens, Kyron,

Galtung, Johan, Hulsman, Lodewijk Henri Christian
Garapon, Antoine, [vel Louk],
Gardiner, Gerald [Austin], Humbert I of Savoy [Umberto Ranieri
Garland, David W., Carlo Emanuele Giovanni Maria
Gazzaniga, Michael S., Ferdinando Eugenio di Savoia],
Ghai, Yash Pal, king of Italy,
Gimenéz-Amaya, José Manuel, Hume, David,
Girard, René, Hunt, Lynn Avery,
Giusti, Giusto, Husak, Douglas N.,
Glendon, Mary Ann, Husayn, Ṣaddām: vide Ṣaddām Husayn
Golash, Deirdre, [vel Hussein].
Goldschmidt, Verner, Husserl, Edmund [Gustav Albrecht],
Gómez-Jara Díez, Carlos, Huxley, Aldous [Leonard],
Greene, Joshua D., Huysmans, Joris-Karl [vel Charles-
Gregory, Patrick, Marie-Georges],
Griffith, David Wark [Llewelyn], Hyams, Joe,
Grøning, Linda,
Grossi, Paolo, Iacoboni, Marco,
Guastavino, Marta Isabel, Incampo, Antonio,
Guillain, Christine, Isidore of Seville [Isidorus Hispalensis],
saint,
Hacker, Peter Michael Stephan, Itten, Johannes,
Hall, Christopher Keith,
Hamber, Brandon, Jabłoński, Mariusz,
Haney, Craig W., Jackson, Robert Houghwout,
Harhoff, Frederik, Jacobs, Hugo [Carlos Delory],
Hart, Herbert Lionel Adolphus, Jacobsen, Jørn R.T.,
Hassemer, Winfried, Jareborg, Nils Börje,
Hauser, Marc, Jastrow, Joseph,
Haveman, Roelof H., Jay, Martin,
Hazan, Pierre, Jeschek, Hans-Heinrich,
Heath, Peter, Jhering, Rudolf [Ritter] von,
Hegel, Georg Wilhelm Friedrich, John Paul II [Ioannes Paulus II], pope,
Heidegger, Martin, Johnstone, Gerry,
Henham, Ralph Jean, Jones, John R.W.D.,
Henzelin, Marc, Jones, Owen D.,
Heraclitus [Heraclitus], of Ephesus, Jordan, Jeane Duane: vide Kirkpatrick,
Hermida del Llano, Cristina, Jeane.
Hewitt de Alcántara, Cynthia, Jowett, Benjamin,
Hirsch, Andrew von,
Hitler, Adolf, Kafka, Franz,
Hoover, Dalila V., Kandel, Michael,
Howard, Richard, Kant, Immanuel,
Hughes, Gordon, Kaplan, Jonas,
Hugo, Victor-Marie, Karstedt, Susanne,
Kaufmann, Arthur, Lombardi Satriani [di Porto Salvo],

Kelsen, Hans, Luigi Maria,
Kennedy, Duncan, Lombroso, Cesare [Marco Ezechia],
Kennedy, John,
Kerouac, Jack [Jean-Louis], López Basaguren, Alberto,
Kirkpatrick, Jeane, Lorini, Giuseppe,
Kissinger, Henry [Heinz Alfred], Losano, Mario Giuseppe,
Klaus, Lüdersen, Lowell, James Russell,
Klecatsky, Hans [Richard], Lubanga Dyilo, Thomas,
Klee, Paul [Ernst], Lüderssen, Klaus,
Köck, Heribert Franz, Luke [Lucas], evangelist,
Koenigs, Michael Luttrell, Vickie R.,
Kojève, Alexandre,
Kolb, Robert, M’Naghten, Daniel,
Kolber, Adam J., MacIntyre, Alisdair Chalmers,
Kornfeld, Sigmund, MacKenzie, Mary Margaret,
Koževnikov, Aleksandr Vladimirovič: Manacorda, Stefano,
vide Kojève, Alexandre. Mancino, Anton Giulio,
Kramer, Matthew Henry, Manconi, Luigi [vel Dessi, Simone],
Kraus, Oskar, Mani, Rama,
Kritz, Neil J., Mankiewicz, Joseph Leo,
Kubrick, Stanley, Mantovani, Ferrando,
Kuhn, Thomas [Samuel], Manzini, Vincenzo,
Küng, Hans, Marcic, René,
Marcus, Steven J.,
LaCasse, Lori, Markel, Dan,
Lailach, Martin, Marois, Rene,
Lampe, Ernst-Joachim, Marrus, Michael Robert,
Lancaster, Burton Stephen [vel Burt], Marshall, Tony F.,
Martínez Sampere, Eva,
Langevin, Ronald Lindsay [vel Ron], Martinson, Robert,
Laporta San Miguel, Francisco Javier, Marvin, Lee Minsky,
Laroche, Benjamin, Mathiesen, Thomas,
Lask, Emil, Mathieu, Vittorio,
Lavazza, Andrea, Mattarollo, Rodolfo,
Lederach, John Paul, Maupas, Stéphanie,
Lee, Roy S., May, Hope Elizabeth,
Leidenmühler, Franz, McLaughlin, Eugene,
Lem, Stanisław, Medina Morales, Diego,
Lengauer, Alina-Maria, Meligrana, Mariano,
Leroy, Mervyn, Meloy, J. Reid,
Letki, Natalia, Mendoza Palomino, Álavaro,
Levy, Neil, Merleau-Ponty, Maurice,
Libet, Benjamin, Meron, Theodor,
Lloyd, Keith, Merzagora Betsos, Isabella,
Meyer, Howard N.,
Index 337
Mika, Harry, Phillips-Griffiths, Allen,

Mill, John Stuart, Picozza, Eugenio,
Minujin, Alberto, Pictet, Jean Simon,
Mittica, Maria Paola, Piechowiak, Marek,
Moine, Raphäelle, Pigliaru, Antonio,
Morris, Herbert, Pinna, Gonario,
Morrissey, Stephen, Pinotti, Andrea,
Morse, Stephen J., Plato [Plato] of Athens,
Moss, Andrew, Pojman, Louis Paul,
Moynier, Gustave, Pomerance, Michla,
Mukamel, Roy, Poncela, Pierrette,
Murphy, Jeffrie G., Pontifex, Dom Mark,
Murphy, John Francis, Porta, Mauro,
Murton, Thomas [vel Tom], Posner, Eric Andrew,
Muzny, Petr, Posner, Richard Allen,
Price, Bruce Heimburger,
Nagel, Thomas, Pythagoras [Pythagoras] of Samos,
Neschwara, Christian, Pureza [Marques da Silva], José Manuel,
Newman, Paul [Leonard],
Nietzsche, Friedrich Wilhelm, Quince, Khylee Eugenie,
Nystrom, Leigh D.,
Radbruch, Gustav,
Offe, Claus, Radden, Jennifer,
Ogilvie, Christine, Raine, Adrian,
Ohlin, Jens David, Rauschning, Dieter,
Olásolo, Héctor, Rawls, John [Bordley],
Olechowski, Thomas, Redford, Robert [Charles],
Ollero Tassara, Andrés, Reiman, Jeffrey,
Olusanya, Olaoluwa, Reiss, Hans S.,
Omale, Don John O., René, Girard,
Orentlicher, Diane F., Rescher, Nicholas,
Orwell, George, Richardson, Samuel,
Ost, François, baron, Rickert, Heinrich,
O'Sullivan, Sean, Ricœur, Paul [Jean Gustave],
Ovid [Publius Ovidius Naso], Ridge, Michael,
Rizzolatti, Giacomo,
Pacewicz, Artur, Roberts, Julian V.,
Palmer, Stephen E., Robinson, Daryl,
Papaux, Alain, Robinson, Paul H.,
Parfit, Derek, Robles Morchón, Gregorio,
Parish, James Robert, Rocca, Paola,
Parmentier, Stephan, Rodowick, David Norman,
Pasculli, Maria Antonella, Roht-Arriaza, Naomi,
Pavese, Cesare, Röling, Bernard Victor Aloysius [vel
Peachey, Dean E., Bert],
Pérez Luño, Antonio Enrique, Rose, Nikolas,
Rosenberg, Stuart, Solomon, Robert C.,

Roskies, Adina L., Solum, Lawrence B.,
Roth, Robert, Sommerville, Richard Brian,
Rousseau, Jean-Jacques, Sozio, Maurizio,
Rubin, Alfred P., Speer, Albert,
Ruda, Jose Maria, Sprague, Rosamond Kent,
Ruggiero, Vincenzo, Stanislas, Dehaene,
Rümelin, Gustav, Stanislavskij, Konstantin Sergeevič,
Ryberg, Jesper, Starita, Massimo,
Staub, Ervin,
Sacco, Rodolfo, Steinberger, Helmut,
Ṣaddām Husayn vel Hussein [ʿAbd Steiner, Hillel,
al-Majīd al-Tikrītī’], Stoddard, Jackie,
Sammicheli, Luca, Stout, Brian,
Sandel, Michael J., Strang, Heather,
Santoro, Emilio, Strawson, Peter Frederick,
Saramago, José [de Sousa], Stroud, Robert Franklin,
Sartori, Giuseppe, Subotic, Jelena,
Sarzotti, Claudio, Sullivan, Dennis,
Saunders, Trevor J., Sunga, Lyal S.,
Scalia, Damien, Swerdlow, Russell H.,
Scelles, Georges, Szasz, Thomas [Stephen],
Schabas, William Anthony,
Schall, Jeffrey D., Tadros, Victor,
Schambeck, Herbert, Tallgren, Immi,
Scheid, Don E., Tanke, Jospeh J.,
Scheler, Max, Teitgen-Colly, Catherine,
Schlosser, Hans, Terracina, David,
Schumann, Karl F., Terradas Saborit, Ignasi,
Schünemann, Bernd, Teubner, Gunther,
Schur, Anna, Thiam, Doudou,
Scucchi, Stefano, Thomas Aquinas, saint,
Seneca [Lucius Annaeus Seneca], Thomas, Clarence,
Shafer-Landau, Russ, Thomson, Judith Jarvis,
Shapiro, Gary, Tifft, Larry,
Sher, George, Todorov, Cvetan [vel Tsvetan],
Sheridan-Smith, Alan [Mark], Tranel, Danie,
Shiff, Benjamin N. [vel Ben], Triffterer, Otto,
Shimamura, Arthur P., Tulkens, Françoise,
Siegel, Donald [vel Don],
Simmel, Georg, van de Kerchove, Michel,
Siniscalchi, Guglielmo, van der Spuy, Elrena,
Sirk, Douglas, Vandermeersch, Damien,
Sierck, Hans Detlef: vide Sirk, Douglas. Virgil [Publius Vergilius Maro],
Sironi, Vittorio Alessandro, Verdross, Alfred von,
Socrates [Socrates] of Athens, Vermeule, Adrian [Cornelius Comstock],
Index 339
Vico, Giambattista, Wiesbrock, Katja,

Vieille, Stephanie, Wilhelm II [Friedrich Wilhelm Viktor
Villa-Vicencio, Charles, Albrecht von Hohenzollern], German
Visconti, Costantino, emperor,
von Hirsch, Andrew: vide Hirsch, Williams, Robert R.,
Andrew von. Wilson, David,
von Jhering, Rudolf [Ritter]: vide Wilson, John Burgess,
Jhering, Rudolf [Ritter] von. Wippman, David,
von Verdross, Alfred: vide Verdross, Wittgenstein, Ludwig [Josef Johann],
Alfred von. Wojtyła, Karol [Józef]: vide John
Paul II [Ioannes Paulus II], pope.
Young, Liane, Wrange, Pål,
Wright, Martin,
Walleyn, Luc,
Walsh, Charles, Żełaniec, Wojciech,
Walzer, Michael, Znamierowski, Czesław [Gabriel
Weiler, Rudolf, Stanisław],
Welles, Orson [George], Zolo, Danilo,
Wesener, Gunter, Zehr, Howard J.,
Westmarland, Louise, Zaibert, Leo,
Wieacker, Franz,
Quaderni di scienze penalistiche e filosofico-giuridiche
Serie I. Editore A. Giuffrè, Milano

1. Vincenzo Garofoli (a cura di), L’unità del sapere giuridico tra di-
ritto penale e processo. Atti del Convegno (Bari, 21‒22 maggio 2004,
Facoltà di Giurisprudenza), 2005.
2. Angiola Filipponio (a cura di), Verità e normatività, 2005.
3. Vincenzo Garofoli (a cura di), Unità del sapere giuridico ed etero-
geneità dei saperi del giudice, 2005.
4. Vincenzo Garofoli (a cura di), Problematiche tradizionali e incaute
innovazioni legislative, 2006.
5. Giuseppe Spagnolo (a cura di), La responsabilità da reato degli enti
collettivi. Cinque anni di applicazione del d.lgs. 8 giugno 2001, n.
231. Atti del Convegno (Bari, 26‒27 maggio 2006‒2007, Facoltà di
Giurisprudenza), 2007 .
6. Vincenzo Garofoli (a cura di), La sentenza della Corte Costituzionale
6 febbario 2007 n. 26: un energico richiamo al metodo della giuri-
sdizione. Atti del Convegno (Trani, 2‒3 febbraio 2007, Hotel S.
Paolo al Convento), 2007.
7. Miranda Zerlotin, Diritto originario in Erik Wolf, (con la tradu-
zione italiana dell’opera di Erik Wolf, Recht des Nächsten. Ein
rechtsthelogischer Entwurf), 2008.
8. Vincenzo Garofoli (a cura di), Unità del sapere giuridico e poli-
formismo normativo, 2008.
9. Vincenzo Garofoli (a cura di), L’udienza preliminare e il conteni-
mento dei tempi processuali, 2008.
10. Vincenzo Garofoli (a cura di), L’azione penale tra obbligatorietà e
discrezionalità. Atti del Convegno (Bari, 29 novembre 2008, Villa
Romanazzi Carducci), 2009.
11. Angiola Filipponio/Aldo Regina (a cura di), In ricordo di Aldo Moro.
Atti del Convegno (Bari, 20 giugno 2008, Facoltà di Giurisprudenza),
2010.
12. Angiola Filipponio/Vincenzo Garofoli (a cura di), In ricordo di Franco
Cipriani, 2010.
13. Vincenzo Garofoli/Antonio Incampo (a cura di), Verità e processo penale,
2012.
345
Serie II. Editore Cacucci, Bari
14. Antonio Incampo/Wojciech Żełaniec (eds.), Universality of Punishment,
2015.
Cacucci Editore sas - Via Nicolai, 39 - 70122 Bari - Tel. 080 5214220 - Fax 080 5234777
http://www.cacuccieditore.it e-mail: ordini@cacucci.it
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Unità del sapere giuridico

14 Quaderni di scienze penalistiche e filosofico-giuridiche

ed. by A. Incampo and W. Zełaniec

I volumi inseriti nella collana, ritenuti preliminarmente ammissibili dai

© 2015 Cacucci Editore - Bari

Stampato in Italia Printed in Italy

Matthew H. Kramer, Retributivism in the Spirit of Finnis » 29

Giuseppe Lorini, Revenge as Universal Legal Structure vs.

Marek Piechowiak, Plato’s Conception of Punitive Justice » 73

Gregorio Robles, The Communication Theory of Law and

Maurizio Sozio, What Punishment in a “Brave Neuro World”? » 107

Leo Zaibert, Justifying Incarceration » 135

Wojciech Żełaniec, Now You Know: The Educative Purpose

Hope Elizabeth May, Virtue Jurisprudence and the Function

Maria Antonella Pasculli, Some Reflections on Restorative

Damien Scalia, The Illusion of Universality in International

Antonio Incampo, Don’t Kill Cain: Towards a Theory of

Heribert Franz Köck, Universality of Punishment and the

Guglielmo Siniscalchi, Escape … to Alcatraz: Rechtsgefühl,

About the authors » 331

It is enough to think of the ius commune of tenth-century

conception of the “objective spirit” in which the State is equated

other States, obligations which are not restricted to the defence

Such conflicts are ones in which no permanent members of the

the whole category of criminal liability, which has only just

restoration and reconciliation both with itself and with the

Bari/Gdańsk, February 2015

Antonio Incampo and Wojciech Żełaniec

Criminal Punishment in Crisis

With regard to criminal punishment, the only thing which

Since the Age of Enlightenment, as Foucault explains,4 we

attempt to convey them as necessary but humanely indifferent

punishment. As the US Supreme Court constantly reiterates,

society should also have the task of preparing him/her for

evaluates and re-shapes the judicial decision. What may have

clearest expressions of the way in which an increasingly

The downside of this rethinking of trends in the legal system

promised by genetic-drug enhancement techniques upon which

of a molecular genetic background, including MRI brain and

fight crime, to reintroduce a psychopath into society or to

Balzac, Honoré de, Mémoires pour servir à l’histoire de la Révolution française,

Retributivism in the Spirit of Finnis*

John Finnis’s contributions to the philosophy of criminal

1. An opening sketch of desert-focused retributivism

Nearly every theory that can correctly be classified as a

of his having acted athwart the terms of a morally worthy

2. Freedom as the unjust gain?

Most problematic is the suggestion that the unjust gain

objects to the line of thought, has acquiesced in certain key

Not Proud: A Retributivist Defense of the Commutation of Death Row and

view that “the most plausible way of understanding [a wrongdoer’s

directly to legal mandates. No defensible conception of freedom

misdeed is not typically what endows a miscreant with the

example, if Joe commits assault and battery against Julia and

by a mere inability. In other words, somebody may have become

3. The price of a license

Michael Davis has been a prominent and astute exponent of

Davis envisages an auction in which people can bid for

3.1. A first query

One major weakness in Davis’s scenario of the auction is

3.2. A second query

Another major weakness in the scenario of the auction is

or a license to jaywalk.” 20 Even if we were to accept these