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Vom ,,malum“ zur Rechtsfriedensstörung

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This essay is meant to draw the principle outlines of the development of a specific modern issue of penalty. Deriving from an erosion of Augustine's dominating paradigm of retribution as a balance of two equivalent “evils” the legitimation of modern punishment was not sought in ef ficient deterrence only – as utilitarian philosophers suggested. More deeply, a modern justification of punishment was developed within the political philosophy of Kant, Fichte and Hegel by successively unfolding its close relation to the concept of freedom. This does not only stress the criminal's own responsibility but also relies on the condition of a developed rule of law. As a result punishment was not only meant to restore sovereignty, often based on a social contract, but also the fundamental relation of mutual recognition between individuals.

Adhering to a substantial understanding of the modern state under the rule of law this concept of penal law draws a marked distinction between “punishment” and “war” and also sets a clear limit to tendencies of expanding criminality beyond the rule of law. Regarding its philosophical impact it predominantly must be put forward against all measures which negate or extinguish the criminal's personality as a whole, such as torture, death penalty or life imprisonment.
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Language: German

Document Type: Research Article

Publication date: January 1, 2014

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  • Archiv für Rechts- und Sozialphilosophie, edited by authorisation of the International Association for Philosophy of Law and Social Philosophy (IVR), is an international, peer-reviewed journal, first published in 1907. It features original articles on philosophical research on legal and social questions, covering all aspects of social and legal life.
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