Philosophical Foundations of Human Rights and Criminal Justice
What is a human right? What is criminal justice?
‘Positivistic’ answers to these questions can easily be given, eg ‘Human rights are defined in the European Convention on Human Rights’ or ‘Criminal justice is defined by the criminal procedure law of England and Wales’. But suppose we press the point by asking what makes these positive texts or practices legitimate or just, by requesting, in other words, a critical standard against which to measure current law and practice. In what sense can human rights treaties fail to express ‘the truth’ about human rights? In what sense might existing practices of criminal justice in England and Wales be unjust?
This module investigates the moral and political philosophical foundations of human rights and criminal justice. It poses and explores such fundamental questions as: What are human rights? What constitutes criminal justice? How can human rights or criminal justice be theorised? Which moral and political choices lie behind particular laws and practices, and what (if anything) justifies them, in turn? Are penal sanctions (ever) legitimate? Where do ideas of democracy, individual rights, social justice or conceptions of human welfare fit in? Under what circumstances, and on what grounds, may general social welfare take precedence over individual claims and interests? What are the moral limits of the criminal law? Which values inform and constrain criminal procedure?
Having carefully specified the parameters of the inquiry in the first three seminars, the issues behind these questions are systematically investigated by examining the ethical, political and legal credentials of two rival philosophical traditions: utilitarianism and liberal deontology. In each case abstract considerations of welfare and value are shown to give rise to distinctive justifications for legal rules, which in turn produce rival models of the scope and content of penal law and the ambit and significance of human rights within particular legal systems.
This module represents an invitation to participate in the philosophical debates surrounding human rights and criminal justice through independent research and reading, seminar discussion, and critical reflection. It grapples with many of the central themes in modern legal, political and moral theory, such as moral epistemology, the meaning and limits of human rights, the problem of justified political authority, and the rationales for state coercion (including punishment). Previous study of jurisprudence, penal theory and/or moral and political philosophy would be an advantage, but none will be assumed.