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Liberty and insecurity in the criminal law : lessons from Thomas Hobbes
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Carvalho, Henrique (2017) Liberty and insecurity in the criminal law : lessons from Thomas Hobbes. Criminal Law and Philosophy, 11 (2). pp. 249-271. doi:10.1007/s11572-015-9369-y ISSN 1871-9791.
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Official URL: http://dx.doi.org/10.1007/s11572-015-9369-y
Abstract
In this paper, I provide an extensive examination of the political theory of Thomas Hobbes in order to discuss its relevance to an understanding of contemporary issues and challenges faced by criminal law and criminal justice theory. I start by proposing that a critical analysis of Hobbes’s account of punishment reveals a paradox that not only is fundamental to understanding his model of political society, but also can offer important insights into the preventive turn experienced by advanced liberal legal systems. I then suggest that the main importance of an analysis of Hobbes’s theoretical framework lies in how it reveals an inextricable and problematic link between individual autonomy and political authority in the normative conception of the modern liberal state, grounded on the notion of insecurity. By exploring how legal scholars have recently engaged with aspects of this problematic in criminal law and punishment posed by Hobbes’s work, I argue that the paradox found in punishment is such that it both legitimates the criminal law and undermines its normative aspirations, particularly the possibility of securing individual liberty against the power of the liberal state.
| Item Type: | Journal Article | ||||||||
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| Subjects: | B Philosophy. Psychology. Religion > B Philosophy (General) K Law [Moys] > KA Jurisprudence |
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| Divisions: | Faculty of Social Sciences > School of Law | ||||||||
| Library of Congress Subject Headings (LCSH): | Criminal law, Law -- Philosophy, Punishment | ||||||||
| Journal or Publication Title: | Criminal Law and Philosophy | ||||||||
| Publisher: | Springer Verlag | ||||||||
| ISSN: | 1871-9791 | ||||||||
| Official Date: | June 2017 | ||||||||
| Dates: |
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| Volume: | 11 | ||||||||
| Number: | 2 | ||||||||
| Number of Pages: | 23 | ||||||||
| Page Range: | pp. 249-271 | ||||||||
| DOI: | 10.1007/s11572-015-9369-y | ||||||||
| Status: | Peer Reviewed | ||||||||
| Publication Status: | Published | ||||||||
| Access rights to Published version: | Restricted or Subscription Access |
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