Paper's abstract

Ioannis S. Papadopoulos, Penal Philosophy between Social Utility and Retributive Morals
A study of comparative law reveals that none of the two dominant tendencies in American criminal law has succeeded in permeating European legal culture, essentially for philosophical and constitutional reasons. Penal utilitarianism and its aftermath, the "Law and Economics" movement, which apply economic reasoning to law, suffuse Anglo-American but are rejected by Continental penal philosophy, as it appears in two legal examples : "bad Samaritan" (refusal to aid persons in danger) and hate speech (racist libels and insults) laws. Retributivism, an approach of punishment exclusively based on deontological morals, has become prominent in the United States but has not yet penetrated the European legal landscape. In fact, no penal philosophy can, by its own, justify a system of liberty-depriving rules : utilitarianism, despite its indisputable - but long under-appreciated in European penal philosophy - liberal virtues, can result in morally unacceptable situations , retributivism, on the other hand, despite its prima facie good sense, creates in reality more problems than it solves. The paper offers a sketch of a mixed model of criminal policies close to European penal practices, in which the theory of the criminal's social rehabilitation plays a central role, but is not exclusive of other theories of punishment.

Key Words : comparative law, utilitarianism, criminal
t. 45, 2001 : p. 159-175

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