Criminal punishment as a restorative practice

Abstract

This article offers a conceptualization of crime and punishment that serves to explain current trends in criminal law doctrine and, at points, recommends their reconsideration. Drawing on Hegel's concept of mutual recognition and on insights developed in fair-play accounts of punishment, the article suggests that crime disrupts the subject-subject relation between the victim and the offender, and that punishment works to restore this relation. To advance this argument, the article first proposes that subjects can only exist in equilibrium of connectedness and separateness whereby they mediate each other's equal personal boundaries. It then analyzes crime as a failure by the offender to mediate the victim's equal boundaries, which creates inequality of boundaries and brings about the collapse of the equilibrium and of the victim's subjectivity. Next, it is suggested that punishment re-equalizes the parties' respective boundaries, thus restoring the disrupted equilibrium and the victim's subjectivity. The article then demonstrates that this conceptualization helps explain current developments in areas such as mens rea and justificatory defenses, and that it further provides theoretical foundations for critical evaluation of wellestablished doctrines such as self-defense and attempt.