When novelists and philosophers turn to the work of lawyers, they tend to gravitate toward certain issues and ignore others. Two processes-punishment and compensation-lie at the heart of our legal system, but only the former has drawn the attention of literary and philosophical minds.
The issues of wrongdoing, guilt, and expiation are of endless fascination not only for Dostoevsky and Dürrenmatt, but for any writer who seeks to fathom the foundations of our moral life. For philosophers, the concept of punishment has become a proving ground of the even broader conflict between deontological and utilitarian moral theories. Deontologists hold that punishing crime is right and just in itself. Utilitarians insist that the good of punishing criminals depends on the beneficial consequence of deterrence and incapacitation. For lawyers as well, the concept of punishment comes center stage as the standard for distinguishing criminal prosecutions from civil actions. When a sanction constitutes punishment, the state must provide the procedural trappings of a criminal trial. Thus, the courts confront the question whether particular sanctions, such as deportation and punitive fines, constitute the kind of punishment characteristic of criminal trials.
Criminal Law | Criminal Procedure | Law
George P. Fletcher,
Punishment and Compensation,
Creighton L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/4166