Open AccessThe Rationale and Purposes of Criminal Law and Punishment in Transitional Contexts
Author(s) -
Elena Maculan,
Alicia Gil Gil
Publication year - 2020
Publication title -
oxford journal of legal studies
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.497
H-Index - 29
eISSN - 1464-3820
pISSN - 0143-6503
DOI - 10.1093/ojls/gqz033
Subject(s) - sanctions , punishment (psychology) , transitional justice , criminology , criminal justice , criminal law , political science , law , order (exchange) , relation (database) , theory of criminal justice , sociology , law and economics , economic justice , psychology , social psychology , business , computer science , database , finance
Recently, the idea that criminal sanctions should be seen as an essential mechanism within transitional justice for dealing with collective violence has gained increasing traction. The article focuses on the purposes of criminal law and punishment, and what they can achieve in relation to victims and society in transitional contexts. As to victims, it proposes a reorientation of the victim-oriented theories of punishment towards consequentalism and the adoption of a wider concept of justice. As to society, it argues that in transitional contexts the main purpose is positive general prevention. Under both perspectives, the conclusion is that victims’ interests should be weighed up against other social aims and that a flexible approach to the prosecution and/or punishment of offenders should be permitted, in the search for the best optimum means possible to guarantee the ultimate aim of the maintenance of social order.