the sanction philosophy of law – 11 november 2015

The Sanction

Philosophy of law – 11 November 2015

Sanction

• Political power guarantees the application of juridical norms by means of the sanction

• Different conceptions of sanction and their juridical function

• Different punishment theories

Legal positivism• Describes sanction descriptively/formally • “how” the sanction is

• Violation non-correspondance of the real action to the prescribed action.

• Illicit (non-conformity with norms)recurrs=

• - no respect of a prohibition• -no execution of an order

Sanction• action adressed towards non complying behaviour in order

to:

• - nullify or neutralize harmful consequences of action

• - or prevent an action different with respect to one prescribed by norms

• Sanction=effect/juridical consequence that the positive legal system links to juridically relevant human actions

With or without sanctions?• Every normative system foresees sanctions (answer to

violations)

• legal system without sanctions?

• Hypothetically, only 2 cases (unreal situations)

1)rational society-norms perfectly adjusted to receivers’

propensities(individuals obey spontaneously)

2)automatised society- individuls mechanically faithful to prescriptions (robots)

Normative theory

• Purely formal theories• Kelsen • Theory identifies juridical norm with a

hypothetical judgement :if “A” then “B”

• A= illicit• B=sanction

Kelsen

• A(illicit)never evil in itself(no scientific way to demonstrate it)

• nor can an illicit be defined supposing legislator wishes behaviour different/opposed one carachterized as illicit

• legislator express intentions addressing the sanction towards the individual who’s behaviour is opposed to his desires

• Kelsen: B(sanction) that qualifies A as an illicit

• According to Kelsen• The existence of B(sanction) and no other

ethical,social,psychological or political reason can define A as an illicit

• From the hypothetic imperative “If A, then B”, one should logically conclude that A is an illicit act therefore every member of society is legally bound by performing the opposite behaviour (not-A)

•This reasoning cannot be accepted.

•Think of the following sentence:

•“All those earning a wage, shall pay taxes”

• In this case “paying taxes” is not a sanction for “earning a wage”(which is not, in turn, an illicit act)

• Traditionally, jurists indicate as primary norms those norms which prescribe a behaviour (must fulfill z) and as secondary norms those that threaten the non-compliance with that behavior .

• Kelsen reverses this traditional distinction: • primary norm is the norm that imputes and prescribes

the sanction;

• secondary norm is the rule prescribes a behavior.

• Indeed, if we assume (as Kelsen does) that the norm that forbids theft is valid only if a second norm links stealing to a sanction, then that's how the first norm (do not steal) does exist, but is encapsulated and contained in the second norm (if theft, then sanction), that in this way becomes according to Kelsen the only genuine juridical norm (that is, the primary rule).

• Pre-kelsen

• The sanction criteria does not qualify the illicit but viceversa the illict qualifies the sanction

Sanction not absoulte condition of law

Individual complies to law not only out of fear of sanction but also because he agrees with its contents

Law not only sanctioning activity but alsoPromotional

Non-sanctioning norms (private law; internationallaw)

• Normative theory: artificial; no legal system constituted only by sanctioning norms

• If norm is legal only when sanctioned; likewise sanctioned norm is legal only if in turn sanctioned..continue ad infinitum..ended by non-sanctioned norm(denying intial premises)

Theory of general prevention

• Individualsitic-utlitarian conception theory• 2 assumptions• 1)individual guided by instincts researching

pleasure/joy/happiness and by avoiding/eliminating suffering

• 2)individual acts out of egoistic interests(costs/benefits calculation and min suffering/max pleasure)

• punishment legitimate to the extent to which protects social convenience

• Legal system is strenghtened by the system of punishment/threat of punishment

• Suffering --> stop offender by producing counter-motivation to individul's search of utility when this damages social utility

• Non compliance to law not evil in itself

• Punishment of violations/threat of punishment of possible future violations is guided by prevention of future offences to preserve general members of society utility

Theory of special prevention• Empirical psycho-sociological conception

• Law/punishment justified insofar as functional to preserve organization and social integration foreseeing and eliminating deviances

• Punishment-->intimidation or discouragement future offences

• Punishment entity measured according to ability to intimidate offender preventing him from committing it again in future

Theory of social defence

• Sociological-criminal theory• Punishment function= prevention of most frequent

offences• Preventionist theory refers to:• an empiricist-evolutive conception of society (society

changes for conservation and adaption of the species)• Determinist conception of man (man behaviour

conditoned by external factors; i.e. Search for utility)• Punishment aims to prevent and neutralize antisocial

inclinations and behaviours

Theory of amends• theory of re-education correction and reparation• Punishment--> re-education purpose

• 2 prerequisites• 1)obective – existence and knowledge of values and

disvalues in order to disitinguish between good and bad behaviours

• 2)subjective- correctabilityand re-educability of the offender

• Justification of law and punishment = interior regeneration

Critics to theories

• Commensuration of punishment to purposes extraneous/additional/secondary to law(i.e. Social usefulness, re-education)paves the way for arbitrary (and thus injust) use of law

• Sanctionsstrengthened/weakened/cruel considering the seriousness of act to fulfill preventive/intimidatory/pedagogical effect

critics

• consequence:offendermeans not an end• i.e. serious “non-frequent offences” could be

decriminalised

• punishabilty of guilty individuals since not dangerous or re-educable

• unacceptable possibilities since contrary to justice

Theory of retribution• reference to justice

• punishment according to justice

• bad is intolerable - punishment anti co-existential action

• “duty to punish” & “right to be punished”

Theory of retribution

• punishment proportional to entity of offence and according to justice

• afflicitive: • anthropologic commensuration(not “law of

retaliation”)limitation of freedom• humiliation arrogant will did not recognize the

co-existential limit• sufference condition(not guarantee) of

atonement

• punishment allows juridical regeneration of offender

• Kant, Hegeloffender’s dignity must always be respected

forgiveness

• meta-juridical answer to evil• “gratious act” by the victim• judge cannot forgive because he acts

juridically

Vengeance

• direct reaction to wrongdoing• no social/institutional mediation• emotional• no proportionality• analogy with sanction • considers answer to wrondoing dutiful in name of

an objective iniquity

positive sanctions

• possible answer from law to meritorious act to strengthen social cohesion

• no symmetry – and + sanctions• - sanctions = due• + sanctions = not due

• “factual” reason: legal system insufficient resources to reward all meritorious acts

• “principle” reason: if meritorious act carried out in view of prize= loose its internal moral meaning:

• gratuity has its reward in itself and not out of itself

• Law, in this case, would become an ethical maximum, wanting to legalize something that in principle cannot be legalized.

• ethical point of view: if all meritorious actions were rewarded, citizens would consider the legal system in view of the reward and not understanding objectively the value of their action.