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The Making of the Law Prohibiting 'Cruel and Unusual' Punishment in Prisons: Using Autopoietic Theory to Reconstruct the Eighth Amendment

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Abstract:

Autopoietic theory can be used to explain the federal judiciary's making of the Eighth Amendment law prohibiting 'cruel and unusual' punishment in the nations prisons. This paper argues that the legal system operated autopoietically in the making of the Eighth Amendment prison law in that, beginning as a closed system, the legal system opened up to make the prison law, and returned to a closed system once the lawmaking process was completed. In the final analysis, the paper argues that by understanding how the federal courts have operated, it may give indications on its future behavior and how Eighth Amendment cases will ultimately be decided.

Keywords: Communications; Deliberate Undifference; Federal Courts; Legal Norms; Socially Diffused Laws; Systems

Document Type: Research Article

DOI: http://dx.doi.org/10.1080/0888431042000235002

Publication date: June 1, 2004

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