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Conceptions Of Liberty Deprivation
Author(s) -
Lazarus Liora
Publication year - 2006
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/j.1468-2230.2006.00608.x
Subject(s) - principle of legality , proportionality (law) , law , prison , human rights , political science , law and economics , legal status , sociology
This article adopts a theoretical and comparative perspective on the prisoner's legal status in England and Wales. Applying the principles of human rights, legality and proportionality, it argues that the prisoner's legal status must rest on a divisible conception of liberty. Such a conception must distinguish clearly between the liberty lost, and the rights restricted, by the imposition of the custodial sentence as opposed to the administration of prisons (the key distinction). In order for this to be achieved, the conception of the prisoner's legal status must also establish the purpose or purposes of the custodial sanction as distinct from the purpose of prison administration. Through comparison with Germany, the article demonstrates that the common law concept of the prisoner's legal status is unstable. Vacillating between a divisible and indivisible conception of the prisoner's liberty, the English conception of the prisoner's legal status lacks a foundation firm enough to satisfy the principles of human rights, legality and proportionality.