Provocations

Abstract

This paper is an attempt at the refutation of certain fallacies, which have gained a wide currency in legal and criminological thinking. These fallacies are the following. First, the mistaken interpretation of universal statements such as “Any person condemns murder” as the expression of a cross-cultural consensus about the blameworthiness of a certain type of behaviour; such statements, it is argued, are mere tautologies reflecting the cogency of our linguistic customs. Second, the erroneous belief that criminology can dogmatically account for the sum of the facts which appertain to its field of study, by means of a single, all-encompassing explanation; arguments are given to show that the fate of criminological studies is fragmentation. Third, it is argued that the criminal justice system should be conceived as an apparatus for social provocation rather than as institutionalized social reaction. Fourth, it is pointed out that we must draw an unambiguous distinction between the legal notion of a sentence and the intuitive notion of punishment; stressing this difference leads the author to compare briefly the main tenets of what he respectively calls dogmatic and sceptical criminology. Finally, the necessity to recognize as separate issues the justification and the allocation of criminal sanctions is proven and it is shown how the penal fascination with capital punishment is responsible for blurring the distinction between these issues.