| Part I. ‘The Grotian moment: Natural penal rights in early modern British thought.’ I begin this historical essay by locating Hugo Grotius's innovative theory of the natural right to punish against the background of Scholastic political thought from Marsilius to Almain and Suarez, I then trace the English reception of his thought from the Civil War to the Glorious Revolution, from Hobbes and Milton to Cumberland, Tyrrell, and Locke. I elucidate the political and legal implications that Grotius's theory carried in English parliamentary debates and pamphlet wars during this period and the first half of the 18th century. I explain how Grotian principles of natural justice and right became conjoined with Machiavellian republicanism in Whig political thought of the period. And I explain how this synthesis, in turn, became bound up with Shaftesburean sentimentalism in the works of such Scottish Enlightenment philosophers as Hutcheson.; Part II. ‘Towards a pluralistic critique of penal power.’ In these systematic reflections, I contend that the central subject of concern in matters of criminal justice is a specific type of social power and not, as modern philosophers have long assumed, a universal form of human action designated by the concept of punishment. My principal aim in these reflections is to lay the conceptual groundwork for a pluralistic critique of penal power that attempts to move beyond the single-principle paradigm of legitimation shared by the followers of Kant and Bentham. Through critical readings of Foucault, Arendt, Connolly and others, I argue that substantive ethical assessments of criminal justice can and ought to proceed on the basis of an ethically neutral sociological conception of penal power. And, building upon the kindred thought of Hampshire, Williams, Nagel, Berlin, and others, I defend value-pluralism as a meta-ethical view of personal and social choice. In my view, the legitimacy of penal power depends upon an irreducible division of ethical labor between different public offices with independently grounded professional role-responsibilities. Although criminal justice is also a matter of adversarial equipoise, there is no universally valid justification procedure for determining the correct balance between countervailing social powers and the competing human values and rights that shape those powers. |
