The Justification of Punishment and Human Rights

Abstract

Abstract Human rights play an important role in the regulation of punishment. The lack of sustained consideration of their relevance is therefore surprising. Although human rights principles provide state authorities with little guidance in determining the ‘appropriate sentence’, they set important limits on the choice and imposition of punishment. These restrictions differ in scope and importance from the type of limits most frequently discussed in sentencing theory. Human rights principles nevertheless exert clear restrictions on the state’s power to punish. Punishment will only be compatible with human rights if imposed on a culpable individual for the commission of an act or omission, which is clearly and prospectively defined as criminal. In addition, it must be free from arbitrariness, must not constitute a disproportionate interference with—or fundamentally violate—certain human rights, and be imposed by a judge in the context of criminal proceedings. Consideration of the nature and importance of human rights principles at sentencing draws attention to the role of rights as limitations on punishment. If these principles simply constrain punishment, however, to what extent might they be said to be of broader relevance to the debate on the justification of punishment? In other words, what can human rights principles contribute to an understanding of punishment and its justification? This chapter engages first with the discussion of the aim(s) of punishment in sentencing theory, before going on to consider the importance of how state punishment is conceptualized and to examine the relationship between human rights and the justification of punishment.