Overview of the Republican Theory - Research Paper Example

Overview of the Republican Theory Republican Theory The republican theory is increasingly being touted as an appropriate replacement for the current American justice system, in the eyes of most analysts this system seems to be failing miserably. This paper takes a close look at the Republican theory and seeks identify its core ideological principles, its advantages and disadvantages and the possible changes in policy that the United States might have to implement if it were to adopt the theory. Introduction The republican theory is seen to be firmly rooted in republican ideology. It is, therefore, vital for one to gain a deep understanding of the republican ideology so as to be able to adequately comprehend the working mechanisms behind the Republican theory. Republican Idea The Republican idea of freedom encompasses negative liberty, which in essence, roughly encompasses no interference by other individuals or even at least any interference that may be deemed to have been negligent, sufficiently intentional, indifferent or reckless to count as culpable or blameworthy. The notion of a republican liberty can thus be seen to be negative as is the case with the standard liberal idea. The way republicans perceive freedom has roots which can be traced back to the day of the Roman republic. According to the Romans, the simple fact of one not suffering any interference did not warrant to be considered as liberty, they argued that one could in effect be a slave without any master whatsoever, but still be viewed as not being free. According to the Romans, being free was to be of equal or even full party to the Roman law, a free person was an individual who happened to be protected in the same respect as all other persons by the Roman law and in effect was considered to be wholly incorporated as a citizen into the Roman body politic (Braithwaite & Pettit, 2002). Dominion Under the republican theory, a person could be considered to fully enjoy negative liberty if the person happens to be exempted from all the constraints that may happen to be imposed by the blameworthy or intentional actions of others in choosing specific given options. These options may include things such as hobbies which he is able to perform with his own intelligence and strength, in effect, these options are those things that the person is capable of doing without any benefit from any unique circumstances or from any of his colleagues. An individual may be said to enjoy full dominion if the person happens to enjoy the same prospects of liberty as all the other citizens, if it is common knowledge to all that the person enjoys this condition of full dominion, and if the person happens to enjoy prospects of liberty that can be seen to be no less comparable to the singularly best prospects that may happen to be compatible with exactly the same prospects that the other citizens may happen to enjoy (Braithwaite & Pettit, 2002). An Uncontroversial Target The minimization of the invasion of dominion – or the promotion of dominion is often an uncontroversial topic for the current criminal justice system, this is for the same reason as the minimization of the resultant harm from crime is considered to be uncontroversial. The invasion of a person’s dominion is a wrong that is mostly associated with some of the central criminal cases such as extortion, kidnap, harassment, rape fraud, burglary, murder, assault and theft. In the event of such cases, the offender is often considered as having willingly trespassed against the offended victim’s property or person. By doing this, the offending person is judged to have invaded the offended victim’s dominion and as a result of this, the offender is perceived as having restricted or destroyed the victims’ rightful liberties as concerns certain regards. It can also be argued that the offender in carrying out the offence not only invaded the victims dominion, but he may also have invaded other peoples dominions by having caused a general loss of confidence by others in their prospects of their possibly avoiding a similar fate in the future or actually even causing a lowering of the said prospect (Braithwaite & Pettit, 2002). The invasion of dominion is an evil that is not only associated with, basic central, cases of crime, but it is also considered to be an evil whose minimization could result in an overall minimization of all the other ills that are commonly associated with crime. If efforts are made to try and protect other people’s dominion, then it will be seen that there will be the resultant benefit of having protected them from a general loss of security, health, life or even happiness that crime could have inflicted on them. It is chiefly because of this that efforts aimed at the promotion of dominion should be seen as an uncontroversial goal that the current criminal justice system should try and strive to achieve. Promotion of dominion can be seen to have innate benefits that are commonly associated with the noble goal of the system trying to minimize all the harm that is commonly associated with crime. It could be argued that a general minimization of an individual’s invasion of dominion should be viewed as being a more uncontroversial and noteworthy goal as compared to minimizing harm. If a somewhat repressive and extremely authoritative criminal justice system is in place, it will be seen to be doing an excellent job at minimizing harm yet, such an authoritarian system can be seen to cause for there to be feeling of vulnerability within the general populace. This feeling of vulnerability is not that different from the one that commonly besets people who live in a crime-ridden world. This aspect is considered to be of prime importance and the minimization of invasion should not be allowed to result in the unintentional creation of such a system. Such a system would be seen to be going against its own principles as it would be seen to be eroding the main subjective components that form the people’s dominion (Braithwaite & Pettit, 2002). A Stabilizing Target If it happens that there is a general agreement that the promotion of dominion in the society would eventually be construed as being an uncontroversial target for the entire criminal justice system, the question is then raised as to whether it could also serve as being a stabilizing one. In this instance, it would be pertinent to first establish that the target identified motivates a sufficiently legal allocation of all the uncontroversial rights that may be available in the domain of criminal justice, and secondly make sure that allocation is sufficiently stable: The agents of the system are motivated by the target to take those said rights seriously (Braithwaite & Pettit, 2002). Often at times, it is not easy for one to be able to derive the particular legal rights that a justice system requires so as to be able to effectively promote dominion. It is certain though that they will often include what are described as being uncontroversial rights that are commonly associated with a country’s criminal justice system, such rights include the inherent right of all innocent persons to not be punished by the justice system and the right to a fair trial that is enjoyed by all persons accused of having committed a crime. The liberties that would be under the protection of such rights would generally include the rights which all individuals consider as being basic in nature. It is often seen that the promotion of dominion is often liable for causing a breach of an individual’s basic legal rights an example being the imposition of criminal penalties on an innocent person. Such breaches beg for an answer to the question as to whether the rational agents of a country’s criminal justice system would be inclined to consider whether such an offence of that nature would eventually promise the overall promotion of dominion (Braithwaite & Pettit, 2002). It can be argued that this is not the case, while it may seem right for a sheriff who practices prevention principles to actually tolerate and allow the hanging by a white mob of an innocent black man with the intention of calming the white mob such an action can never be deemed as being right by a sheriff who is ardent to make certain that there is adequate promotion of dominion. A sheriff who is keen to ensure that there is the promotion of dominion will internalize a basic commitment to try as hard as he possibly can and ensure that he promotes all the rights of the innocent people as well as many other rights that can be described as being uncontroversial. Sheriffs who happen to be serious about the promotion of dominion will seriously deny themselves any possibility that may cause them to go against such rights. In addition to all this, such sheriffs will be seen to go to extraordinary lengths at attempting to make it clear to all individuals that they actually abide by this denying ordinance (Braithwaite & Pettit, 2002). A Satiable Target It has now generally been clearly illustrated that the current target is both stabilizing and uncontroversial. It must be asked whether the target can be considered as being a satiable target for the country’s current criminal justice system. Whether it can be seen to be a target that is highly unlikely to make demands that can be construed as being so voracious that they beg for a breach of the basic, uncontroversial limits on the country’s criminal justice practice and in particular call for the use of excessive punishment in punishing the guilty. If we consider possible acts of punishment that have the benefit of being justified by their promising to ensure that there is a general maximization of dominion, it is seen that it is a must that the benefits of such a case be been to exceed the overall cost that is involved in jeopardizing the overall welfare of the persons who are seen to be wholly dependent on the person for their general welfare and basic upkeep, the cost that is involved in showing other people that such prospects of suffering such a punishment actually do exist as well as the cost that will ultimately be involved in punishing the said offender (Braithwaite & Pettit, 2002). Interpreting the Republican Theory The Republican theory can be seen to be in support of four principal presumptions; these presumptions are: Parsimony: Any action that causes criminalization eventually involves certain costs. Any arrest, surveillance, prosecution, actually causes damage to a person’s dominion. Despite this, the benefits that are realized by these initiatives are always probabilistic and distant in character. This presumption promotes the use of less rather than more criminal justice activity (Karstedt, 2000). Checking of Power: This presumption is supported both by the derivation of a person’s rights and by the observation that dominion happens to have a subjective dimension. This presumption is that all the powers that are seen to be enjoyed by a criminal justice system must always be subjected to constant checks that will be key in ensuring that people are always assured that the judicial authorities in their respective countries will not be able to exercise caprice or prejudice when it comes to their dealings with them (Karstedt, 2000). Reprobation: This presumption assumes that the country’s criminal justice system is adequately designed in such a manner that any criminality is subjected to what can be considered to be more or less effective disapproval or reprobation by the community (Karstedt, 2000). Reintegration: This is the presumption made that the criminal justice system should always try and pursue reintegration in the affected community and in particular be keen in ensuring that there is sufficient restoration of dominion (Karstedt, 2000). Possible Major Policy Changes That May be Seen in America in the Event that There is an Adoption of the Republican Theory Major policy changes normally involve small incremental changes from the current, existing status quo: Although the use of incrementalism in effecting key policy changes is currently hotly disputed the fact that is currently the way that most policy changes are made is rarely contested. A good example of this is that common law systems are usually seen to be structurally incremental in nature (Braithwaite & Pettit, 2002). In most areas that are seen to affect business regulation in America, the criminal law is seen not to be used to its most minimal level possible. It is therefore acceptable that, in most of the existing business regulatory domains, there has to be increased levels of criminal enforcement in the country. It frequently happens that the justice system is unable to use the old-fashioned retributivist’s model of choosing the right punishment. The worked on the simple principle of if one takes a life, his life should also be taken, if one happens to take another person’s eye or tooth then that person should also have his eye or tooth taken, as well. This model is seen to be insufficient as certain crimes such as rape, environmental offences and bribing are not easily punishable. Major policy changes will have to be developed that will allow for there to be fair retributive punishments (Braithwaite & Pettit, 2002). Though it may seem to be highly unlikely, it is extremely conceivable that some of the judges who may happen to be angered by a general lowering of the maximum sentences for serious crimes if the republican theory is implemented in the United States, may try to strike back by increasing the actual length of the sentences that they impose. The country’s criminal justice system can be seen to be full of various political actors who happen to have their own view and interests that they seek to protect and hence such counterintuitive outcomes are always a formidable possibility. New policies would have to be developed with the aim of preventing such occurrences from happening (Braithwaite & Pettit, 2002). . What are the Advantages and Disadvantages of the Republican Theory? As has been seen, some of the advantages of the republican theory include an overall reduction in unnecessary investigations, surveillance, and prosecution among other justice system activities. This is as a result of the theory’s focal point of ensuring adequate promotion of dominion. The reduction in the unnecessary justice activities will eventually lead to reduced expenses and an increase in savings by the justice system. This is as a result of these activities being used in the most suspicious of circumstances. The reduction in the average length of sentences will result in a net effect of decongesting the current prison facilities which happen to be seriously overcrowded. Another key advantage of the Republican theory is that there will be the promotion of fair punishments as the system moves away from the old retributivist policy of an eye for another eye. Some of the disadvantages of using the model include the misuse of the new maxima by judges who may be angered by the reduced maximum length of the sentences imposed if one happens to commit serious crimes. Another chief disadvantage is that a reduction in the average length of the prison sentences may not necessarily translate into a reduced increase in crime levels as criminals who are released may not be sufficiently be reintegrated into the community and result to resuming their previous criminal activities. Works cited: Braithwaite J. & Pettit P. (2002). Not Just Deserts: A Republican Theory of Criminal Justice. Clarendon Press: Oxford Karstedt S. (2000) Social dynamics of crime and control: new theories for a world in transition. Oxford [u.a.]: Hart. Read More