Source: (2004) Buffalo Criminal Law Review. 4: 443.
State punishment of a person involves a variety of possible actions including taking away that person’s property, incarcerating the person, and other forms of interfering with his or her liberty. Theories of punishment seek to explain the moral permissibility and even obligatory nature of such actions. These theories, Stephen Garvey comments, often seem to assume that the state in question is an upright one. In reality, however, states and their criminal justice systems are morally ambiguous and flawed. This leads Garvey to ask this question: if an ideal state is morally permitted or even obligated to punish, can the same be said of morally ambiguous states like the real ones in which people live? Furthermore, if the answer is yes, then what principles must guide such flawed states in order to give legitimacy to the punishment they impose? With particular reference to ideas presented in Sharon Dolovich’s 2004 article on ‘Legitimate Punishment in Liberal Democracy’ (Buffalo Criminal Law Review 7: 307), these are the questions Garvey explores in this paper.
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