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Durham Law School

Staff

Publication details for Professor Thom Brooks

Brooks, Thom (2003). T. H. Green's Theory of Punishment. History of Political Thought 24(4): 685-701.
  • Publication type: Journal Article
  • ISSN/ISBN: 0143-781X
  • Keywords: Kant, T.H. Green, Punishment, retributivism, Rights, Positive law, Natural law, Intentionality, Categorical imperatives, Crime, Moral law, Common good, German Idealism, Utilitarianism.
  • Further publication details on publisher web site

Author(s) from Durham

Abstract

Green agrees with Kant on the abstract character of moral law as categorical imperatives and that intentional dispositions are central to a moral justification of punishment. The central problem with Kant's account is that we are unable to know these dispositions beyond a reasonable estimate. Green offers a practical alternative, positing moral law as an ideal to be achieved, but not immediately enforceable through positive law. Moral and positive law are bridged by Green's theory of the common good through the dialectic of morality. Thus, Green appears to offer an alternative that remains committed to Kantian morality whilst taking proper stock of our cognitive limitations. Unfortunately, Green fails to unravel fully Kant's dichotomy of moral and positive law that mirrors Green's solution, although Green offers a number of improvements, such as the importance of the community in establishing rights and linking the severity of punishment to the extent that a criminal act threatens the continued maintenance of a system of rights.