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From Criminal Law to Legal Theory: The Mysterious Case of the Reasonable Glue Sniffer
Author(s) -
Norrie Alan
Publication year - 2002
Publication title -
the modern law review
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.37
H-Index - 22
eISSN - 1468-2230
pISSN - 0026-7961
DOI - 10.1111/1468-2230.00394
Subject(s) - antinomy , subjectivism , retributive justice , law , criminal law , punishment (psychology) , philosophy of law , criminal justice , utilitarianism , economic justice , epistemology , sociology , law and economics , criminology , philosophy , political science , public law , psychology , social psychology
The modern idea of criminal justice is organised around a series of antinomies which include the formal and the substantive, the universal and the particular, the individual and the social. This paper examines the place of these antinomies in four different but connected settings: the plight of the humane judge, the classical enlightenment theory of retributive punishment, the judgment of provoked killing, and the critique of orthodox subjectivism in the Anglo–American law. The play of the universal and the particular and the formal and substantive within law reflects and embodies the underlying antinomy of the individual and the social – even where it does not mention it. The qualitative moment is preserved in all quantification, as the substrate of that which is to be quantified.