1. Authoritarian v. Liberal

The penal Enlightenment was a reaction to the blatant inequities and cruelties of various penal Anciens régimes. As such it brought a new clarity around the question of the ends of criminal justice. Liberal systems of criminal justice, or at least the ideal they represent, are as a result dominant globally. The experience of XXth Century totalitarianisms has if anything reinforced the sense that liberal criminal justice systems are essential to the protection of rights.

In order to understand liberal criminal justice, it is particularly important to understand the anatomy of authoritarian justice. How have authoritarian systems historically functioned? The session will focus on the Nazi and Soviet systems as paragons of injustice, but it will also highlight Herbert Packer's highly influential discussion of "two models of criminal justice." As will be seen, although paradigmatically illiberal systems are rare, systems that oscillate between the authoritarian and the illiberal are the norm. For example, the aftermath of 9/11 has in many societies created fears, as we will see in the session on terrorism, that the criminal justice system would be used for fundamentally repressive ends.

Indeed, one may question whether liberal criminal justice does not have its own blind spots. For example, it can be argued that it has not been particularly sensitive to socio-economic, gendered or racial inequalities as its bland defence of equality might suggest. Perhaps at a certain level even liberal criminal justice is the repository of certain forms of structural violence. Moreover, in late modern societies criminal justice has increasingly morphed or been circumvented to make way for a model of social regulation of dangerosity in which neither fault nor even harm are the main criteria of punishment, notably detention.

Further Reading:

• • Government of Canada, Department of Justice. “Public Perception of Crime and Justice in Canada: A Review of Opinion Polls,” November 11, 2001. http://www.justice.gc.ca/eng/rp-pr/csj-sjc/crime/rr01_1/p2_1.html.

  • Zedner, Lucia. “Pre-Crime and Post-Criminology?” Theoretical Criminology 11, no. 2 (May 1, 2007): 261–81. doi:10.1177/1362480607075851.

  • Morgan, Allison. “Civil Confinement of Sex Offenders: New York’s Attempt to Push the Envelope in the Name of Public Safety.” BUL Rev. 86 (2006): 1001.

  • Slobogin, Christopher. “The Civilization of the Criminal Law.” Vanderbilt Law Review 58 (2005): 121–70.

  • Research on Public Confidence in the Criminal Justice System: A Compendium of Research Findings from Criminological Highlights, 6th Annual Reinventing Criminal Justice Symposium, Ottawa, January 2014