Document Type

Article

Publication Date

2008

Abstract

Many criminal law theorists find the punishment of harm puzzling. They argue that acts should be evaluated only on the basis of the risks they create and the actors' awareness of those risks; that punishing results violates both desert and utility. This article explains punishment of harm on the basis of political theory rather than moral philosophy. Punishing harm helps legitimize the rule of law by vindicating victims. A rule of law state precludes cycles of organized retaliatory violence by asserting a monopoly on retaliatory force, thereby depriving individuals and groups of the option of securing their own dignity. We punish harm in order to maintain the fairness and integrity of an institution that has undertaken to stand up for the equal status of victims while precluding them from doing this for themselves.

Publication Title

Pace Law Review

First Page

713

Last Page

737

Included in

Criminal Law Commons

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