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Back to Basics: A Reply to Claes.

Marshall, Sandra
June 4, 2015

Source: (2005) In Erik Claes, René Foqué, and Tony Peters, eds., Punishment, Restorative Justice and the Morality of Law. Antwerp; Oxford: Intersentia. Pp. 69-76.

The question that Claes’ discussion opens up is precisely that of what constraints there can or must be on the kinds of consideration that are to weigh in interpreting the law. What features of the agents’ context should be influential in deciding what the law is in the particular case and what not. The questions could not be settled without some further discussion of the political theory that underpins the whole conception of law itself, as Dworkin might be seen as arguing in some of his early writings. I shall take it that Claes’ own arguments about the centrality of the idea of human rights in a proper understanding of the nature of legality is a move in that direction. If this is so then more will need to be said to fill out the political values which are at the core of the argument. It should be clear here that I am using the term “political” in its broadest sense, i.e. the sense in which theories of Aristotle, Kant, Rawls might all be called moral as well as political theories. One criticism of the “restorative justice movement” (if we suppose that there is such a thing) is that it often fails to engage sufficiently with the arguments at this level .At the core of the debate about the ideals of legality and restorative justice ideals must be a discussion of such values as liberty, autonomy, human dignity and so on. It is one of the virtues of Claes’ paper that he opens this engagement, though whether the rapprochement he seeks is possible is another matter. (excerpt).


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