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Action and Value in Criminal Law$
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Stephen Shute, John Gardner, and Jeremy Horder

Print publication date: 1993

Print ISBN-13: 9780198258063

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780198258063.001.0001

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Agency and Welfare in the Penal Law

Agency and Welfare in the Penal Law

(p.21) Agency and Welfare in the Penal Law
Action and Value in Criminal Law


Oxford University Press

This chapter discusses the conceptual ground for the reconciliation of the agency and welfarist paradigms in penal law. It begins by describing the internal coherence of the agency model, relating its basic features to the abstract conception of freedom that informs it. It then tries to show how the limitations of this conception are revealed within the agency paradigm itself, notably in the concessions the law must make to considerations of welfare in differentiating wrongs according to seriousness, and in dealing with conflicts between property and the right to self-preservation. It sets out the welfarist paradigm and shows how the absolutization of this model negates the autonomy of the self that it means to actualize. The self-contradictoriness of each principle, when absolutized to the exclusion of the other, reveals the genuine ground of law as the totality that includes both as subordinate moments. This totality is called dialogic community, whose structure of mutual recognition is the latent theme of both paradigms.

Keywords:   agency paradigm, welfarist paradigm, penal law, freedom, self, autonomy, dialogic community

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