Washington University Jurisprudence Review
There is an intractable paradox in the relation between rights and criminal punishment. Criminal punishment frequently conflicts with rights; people typically have identical rights within a legal system, yet the punished are unable to exercise the rights to the same extent as other people. But criminal punishment, in conjunction with criminal laws, also operates to protect rights. To clarify the tension between rights and punishment, I start by analyzing the content and purpose of rights. Next I discuss the nature of rules and the particular types of rules that make up a typical “systems of rules.” I then argue that legal systems are a form of a system of rules, and consider how rights and the laws of criminal punishment belong to different categories of rules. Normally these categories of rules complement one another; while this holds true in the case of rights and punishments, they have attributes that inevitably bring them into conflict. I take some time to examine the theory of right forfeiture because it purports to explain away the discrepancy between rights and punishment, but I conclude that the theory essentially misunderstands rights. Finally, I put forward some broad guidelines for reducing the collision between punishment and rights, while acknowledging that these two kinds of laws will never be entirely compatible.
Benjamin L. Apt,
Reconciling the Rule of Law: Rights and Punishment,
11 Wash. U. Jur. Rev. 67
Available at: https://openscholarship.wustl.edu/law_jurisprudence/vol11/iss1/7