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Introduction:
The difference and variation in cross national imprisonment
lies with the theoretical goals of the society that the punishment
is taking place within. Therefore the first part of this discussion
will consider the different theories of justice of the Western
world; however it must be noted that Austin's deterrence theory
is very applicable to theocratic regimes, i.e. Islamic and
Christian nations that rely on eye for an eye punishment.
Then this discussion will consider the treatment of prisoners
in the US and USA and their no-man's land Guatanamo Bay, which
will be compared with the torture cases from Turkey and Northern
Ireland. Finally this discussion will conclude that the key
factor is the adherence to human rights theory and restorative
justice, such as Rawls that creates the modern, enlightened
penal system that is ideal.
Modern Theories of Punishment & Justice:
Hart & Austin:
Hart's theory is based within the positive and negative liberties;
it follows the traditional civil liberties method whereby
the rights are either given directly or impliedly by the state.
This is based upon a traditional positive frame, but there
is an understanding that the duties between the right holder
and the duty bearer are not within the traditional form. The
traditional view was that the rights holder should be regarded
as a beneficiary of the legal obligation to be performed by
the duty bearer: a recipient in other words, of the benefit
provided by such performance. Rather Hart believes that the
person whom holds the right should have some control or input
over how the legal right should be performed in respect to
the obligation owed by the duty bearer:
The analysis of a right correlative to obligation which is
suggested by the foregoing criticisms of the benefit theory
that for such a right is to exist it is neither sufficient
nor necessary for the person who had the right to be a beneficiary
of the obligation; what is sufficient and necessary is that
he should at least have some measure of control. over the
correlative obligation. 
Therefore Hart provides more power to the individual; however
not the power over the government which the universal human
rights theorists would argue. In short the positive and negative
of Hart may give the right holder more powers than traditional
positivists; it still invests a majority of the power in the
state. This means that liberty of the individual is not inherent,
but rests in the determinations, supremacy and only the obligations
of this power and the check of legitimacy ensures that the
individual is treated justly and fairly. Therefore it is possible
to stretch this argument to include both retributive and reparative
justice; however the key to this argument is justice therefore
the perpetrator of the crime should be treated justly, therefore
retribution is not a just reason and is not legitimate therefore
the protection of society and rehabilitation of the criminal
would be a better application of Hart's theory; however this
theory based on correlative obligations would not rule out
the possibility of compensation paid by the perpetrator to
the victim because this would be fair, legitimate (through
the courts) and just. Austin, on the other hand, focuses on
the illegitimacy of any convention or law that proposes that
it is supreme over the sovereign state's power, therefore
if one applies this to a criminal who supercedes the law this
is the reason for punishment because the power of the state's
laws govern and are supreme to the rights of the individual.
Hart in Positivism and the Separation of Law and Morals expressly
deals with this central thesis of Austin's; "Austin['s].thinking
that restraints on supreme legislative power could not have
the force of law, but would remain merely political or moral
checks". Constitutional is an example of restraining the supremacy
of the state, i.e. the rights of individuals that supersede
the power of the state which is the basis of Austin's argument,
which is exposed and critiqued by Hart in The Concept of Law
"for the conception of the legally unlimited sovereign misrepresents
the character of law in many modern states where no one would
question that there is law". Justice for Austin is not vested
in the individual; rather it is vested in the state and any
law that overpowers the legitimacy of the state affects the
validity of the state. This validity is broken by the individual
rights afforded by natural justice because these rights erode
the sovereignty of the state, therefore justice would be purely
punishing the individual for breaching these basic rules and
purely deterrent and retributive in nature but the rights
of the victim are negligible. Rawls:
Rawl's in his thesis for engendering equality states that
justice is the prime basis of all government and to ensure
justice human rights are the obvious means and end to ensure
justice is fulfilled. Rawl's theory is based on a few key
ideas, which are the rights and duties of government/institution
of society and the burdens and benefits of citizens co-operating.
Rawls bases his theory that each individual has an inherent
and inviolable being set in justice - this being cannot be
overridden for the welfare of the society. This theory does
not fall foul to the arguments against modern utilitarianism.
Rawl's does use the social contract fiction of Hobbes and
Locke, however the basis of moving from ignorance (state of
nature) is reason and this reason set up on principles of
justice that his social contract is based upon. These principles
are; 1) that each person has basic rights and liberties in
accordance with freedom; and 2) there is distributive justice,
where inequalities are restrained by the greatest benefit
of least advantaged and each person has the condition of fair
equality of opportunity. These principles cannot be derogated
for the public good and liberty is the supreme principle.
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Rawl's theory is very important when looking at justice theories
because it begins to tackle the universality of justice based
on justice, as well as the inequalities apparent in society.
The theory does have flaws but it one of the more comprehensive
theories setting up basis rights and freedoms. Unfortunately,
again this theory is based on a social contact fiction and
blurs the edges of reality.
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