1.. HARD CASES 5. Legal Rights A. Legislation . . . We might therefore do well to consider how a philosophical judge might develop, in appropriate cases, theories of what legislative purpose and legal principles require. We shall find that he would construct these theories in the same manner as a philosophical referee would construct the character of a game. I have invented, for this purpose, a lawyer of superhuman skill, learning, patience and acumen, whom I shall call Hercules. I suppose that Hercules is a judge in some representative American jurisdiction. I assume that he accepts the main uncontroversial constitutive and regulative rules of the law in his jurisdiction. He accepts, that is, that statutes have the general power to create and extinguish legal rights, and that judges have the general duty to follow earlier decisions of their court or higher courts whose rationale, as l

Taking Rights Seriously

How do societies control trust relationships that are not embedded in structures of personal relations? This paper discusses the guardians of impersonal trust and discovers that, in the quest for agent fidelity, they create new problems. The resulting collection of procedural norms, structural constraints, entry restrictions, policing mechanisms, social-control specialists, and insurance-like arrangements increases the opportunities for abuse while it encourages less acceptable trustee performance. Moreover, this system sometimes leads people to throw good "money" after bad; they protect trust and respond to its failures by conferring even more trust. The paper explores the sources and consequences of the paradox that the guardians of trust are themselves trustees.

The Social Control of Impersonal Trust

For over 30 years, criminal justice policy has been dominated by a “get tough” approach to offenders. Increasing punitive measures have failed to reduce criminal recidivism and instead have led to a rapidly growing correctional system that has strained government budgets. The inability of reliance on official punishment to deter crime is understandable within the context of the psychology of human conduct. However, this knowledge was largely ignored in the quest for harsher punishment. A better option for dealing with crime is to place greater effort on the rehabilitation of offenders. In particular, programs that adhere to the Risk-NeedResponsivity (RNR) model have been shown to reduce offender recidivism by up to 35%. The model describes: a) who should receive services (moderate and higher risk cases), b) the appropriate targets for rehabilitation services (criminogenic needs), and c) the powerful influence strategies for reducing criminal behavior (cognitive social learning). Although the RNR model is well known in the correctional field it is less well known, but equally relevant, for forensic, clinical, and counseling psychology. The paper summarizes the empirical base to RNR along with implications for research, policy, and practice.

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Rehabilitating criminal justice policy and practice.

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The growth of incarceration in the United States: exploring causes and consequences

In an influential article published in the British Journal of Social Work in 1979, Anthony Bottoms and Bill McWilliams proposed the adoption of a ‘non-treatment paradigm’ for probation practice. Their argument rested on a careful and considered analysis not only of empirical evidence about the ineffectiveness of rehabilitative treatment but also of theoretical, moral and philosophical questions about such interventions. By 1994, emerging evidence about the potential effectiveness of some intervention programmes was sufficient to lead Peter Raynor and Maurice Vanstone to suggest significant revisions to the ‘non-treatment paradigm’. In this article, it is argued that a different but equally relevant form of empirical evidence—that derived from desistance studies—suggests a need to re-evaluate these earlier paradigms for probation practice. This reevaluation is also required by the way that such studies enable us to understand and theorize both desistance itself and the role that penal professionals might p...

/pdf/a-desistance-paradigm-for-offender-management-3g7dmwma4z.pdf

A desistance paradigm for offender management

Doing Justice--The Choice of Punishments

Censure and proportionality dominion and censure (with Andrew Ashworth) seriousness and severity anchoring hybrid models intermediate sanctions penance and personalized desert degradingness and intrusiveness (with Uma Narayan) the politics of proportionality. Epilogue - the aspiration of penal justice.

Censure and sanctions

1. Principles of Restorative Justice John Braithwaite 2. Specifying Aims and Limits for Restorative Justice: A 'Making Amends' Model? Andrew von Hirsch,Andrew Ashworth and Clifford Shearing 3. Restoration and Retribution Antony Duff 4. Imposing Restoration Instead of Inflicting Pain Lode Walgrave 5. Some Sociological Reflections on Restorative Justice Anthony Bottoms 6. Restoration and Retribution in International Criminal Justice: An Exploratory Analysis Paul Roberts 7. Towards a Systemic Model of Restorative Justice Jim Dignan 8. Proposed Basic Principles on the Use of Restorative Justice: Recognising the Aims and Limits of Restorative Justice Daniel Van Ness 9. Victims and Offenders Barbara Hudson 10. Restorative Justice and Criminal Justice: Just Responses to Crime? Joanna Shapland 11. Mind the Gap: Restorative Justice in Theory and Practice Kathleen Daly 12. Restorative Justice in Canada: From Sentencing Circles to Sentencing Principles Julian V Roberts and Kent Roach 13. Restorative Justice in New Zealand Allison Morris and Gabrielle Maxwell 14. New, Improved Police-Led Restorative Justice? Richard Young and Carolyn Hoyle 15. Evaluating Restorative Justice Practices Leena Kurki 16. Models, Challenges and The Promise of Restorative Conferencing Strategies Mara Schiff Index

Restorative justice and criminal justice : competing or reconcilable paradigms?

Past or Future Crimes: Deservedness and Dangerousness in the Sentencing of Criminals

The principle of proportionality-that penalties be proportionate in their severity to the gravity of the defendant's criminal conduct-seems to be a basic requirement of fairness. Traditionally, penal philosophy has included a utilitarian tradition (dating from Bentham), which disregarded proportionality concerns, and a retributive tradition (dating from Kant), which did not supply a readily intelligible account of why punishment should be deserved. Recent philosophical writing has focused on penal desert, explained in terms of a just allocation of the "benefits" and "burdens" of law-abidingness, or as a way of expressing blame or censure of criminal wrongdoing. Expressive theories can explain the rationale of the proportionality principle and also account for the distinction between ordinal and cardinal proportionality. Desert models fully abide by the principle of proportionality. Alternative models might be devised that give proportionality a central role but permit limited deviations for other ends.

Andrew von Hirsch

Papers

Doing Justice--The Choice of Punishments

Censure and sanctions

Restorative justice and criminal justice : competing or reconcilable paradigms?

Past or Future Crimes: Deservedness and Dangerousness in the Sentencing of Criminals

Proportionality in the Philosophy of Punishment