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Civil Disobedience and Conscientious Objection  

William Smith and Kimberley Brownlee

Civil disobedience and conscientious objection are distinct but related social practices that display people’s opposition to specific laws, policies, directives, or schemes. In general, these two practices arise from people’s deeply held commitments. Civil disobedience is more overtly communicative and political than conscientious objection. Civil disobedience is also, almost by definition, a breach of law, which people engage in to push for changes in either governmental or nongovernmental practices. Conscientious objection, by contrast, does not always break the law: sometimes it is a legally protected form of nonconformity. It is also less overtly political than civil disobedience, stemming as it does from people’s desire not to participate in practices they oppose, rather than from their ambition to change those practices. Both practices can be morally justified under specific conditions that, among other things, include doing only limited harm to other people. Moreover, under even more specific conditions, both practices could be said to be protected by moral rights. Civil disobedience and conscientious objection generate pressing normative and political challenges concerning the nature of the rule of law, respect for the rule of law, conditions for deliberative democracy, equality before the law, policing, adjudication, and punishment.


Punishment and Social Control in Historical Perspective  

Michele Pifferi

Punishment has historically functioned as a key factor of social control. At different times, its mechanisms, techniques, and purposes have varied significantly, changing the authority and legitimacy of those who have sought to shape and govern a social order. The sociological notion of social control elaborated at the beginning of the 20th century refers to multiple elements that cannot simply be reduced to law, criminal law in particular. However, especially after the revisionist turn of the 1970s, the idea of social control as a coercive response to deviant behaviors through penal and institutionalized mechanisms has made inroads into research on the history of criminal justice. At first, the origins and development of prisons in late modernity as models of punishment in place of medieval corporal chastisements were scrutinized. The penal shift from the body to the soul, beneath its rhetoric of rationalization and humanization, was driven by conscious projects for controlling and disciplining a changing society by means of institutions of confinement. Although this interpretation was occasionally criticized, it contributed to the development of a critical historical analysis of criminal law in which the notion of social control can be profitably applied to the study of different periods and features of the penal apparatus. A first example is the age of medieval ius commune (12th–16th centuries), when emergent sovereign entities characterizing the pluralistic political scenario before the formations of modern states extensively resorted to a strategic use of criminal law to impose their hegemonic powers. A second case is penal modernism. In the last decades of the 19th century, when state monopolies of violence were undisputed and imprisonment was largely imposed, criminological positivism brought about a rethinking of the rationale of punishment based on the idea of social defense, which also implied a reconceptualization of criminal law as a means of social control.


Punishment and Political Philosophy  

Jesper Ryberg

The punishment of criminal offenders constitutes a topic that has for many years received comprehensive attention, both in narrower academic circles and in broader public debate. This is not surprising. State-mandated infliction of death, suffering, or deprivation of freedom on citizens should from the outset be met with hesitation, and constitutes a practice which clearly calls for more profound considerations. Though the theoretical discussion of punishment has dealt with many conceptual and ethical issues, from an overall point of view, it is dominated by two questions. The first question, as indicated, concerns the justification of legal punishment. Why and under what conditions is it justified for the state to impose punishment on perpetrators? The traditional answers have been split between the utilitarian approach, according to which punishment can be justified in terms of its future desirable consequences, mainly crime prevention, and the retrospectively oriented retributivist approach, which justifies punishment in terms of just deserts. In the modern discussion, the picture has become more diverse. Consequentialist and retributivist justifications have been developed in many different versions and several attempts have been made to combine forward- and backward-looking considerations into coherent schemes. Moreover, genuinely new accounts of penal theories have also been presented. The second question concerns the issue of how different crimes should be punitively responded to. Though this question is obviously theoretically closely related to the first, it is also clear that the question of how individual offenders should be punished for their respective misdeeds prompts a plethora of more detailed challenges such as: What should determine the gravity of a crime? How should one determine the severity of a punishment? Are there types of punishment that should never be used in the criminal justice system (e.g., capital or corporal punishment)? Much of the contemporary discussion within penal theory is devoted to the task of providing principled solutions to these detailed challenges.