Emilia Claes

In this contribution the author wants to dissociate himself from the common view that storytelling and literary imagination are opposed to abstract legal thinking by means of legal concepts and legal principles. Departing from the undeniable gap between the technicalities of the criminal law, on the one hand, and the concrete experiences, feelings and wants of victims and offenders, on the other hand, the paper tries to show that legal provisions defining a criminal wrong and abstract legal concepts like the principle of criminal legality need not be insulated from daily life experience. Through Paul Auster’s novel In the Country of Last Things evidence is given for the thesis that literary imagining by its very nature can help us to get fully engaged with the deeper meaning of an abstract concept like the principle of criminal legality

The point of departure of this paper is the need for a coherent normative theory of punishment which could guide and inform our contemporary sentencing practices, on the one hand, and the pervasive sociological scepsis with regard to the practical potential of such an abstract theory, on the other. Starting from a primarily sociological account of the regulatory and expressive functions of criminal punishment and their complex interaction in late modern culture, the paper examines to what extent these functions affect different kinds of respect for human dignity. It argues, furthermore, that the inescapable tension between the regulatory function of criminal punishment and the affirmation of the equal value of each human life, as well as the potential violation of the transcendent status of each individual person through the expressive nature of criminal punishment, could serve as the building blocks for a normative theory of punishment. These building blocks would allow such a theory to be sufficiently anchored in the complex social reality of punishment and sentencing, while at the same time being able to offer an interpretative framework for a set of principles which could normatively guide these practices

This contribution starts from the fact that up till now criminal legal theory has not yet dealed in a satisfactory way with the question how to reconciliate the still existing need in legal practice to abstract theories, principles and concepts, on the one hand, and the irreducible intuitive and context related dimension of the adjudicative process, on the other hand. At the outset of the essay, an effort is made to develop an anti-theoretical approach of adjudication, based upon the strongest particularistic arguments borrowed from Wittgensteinian thinkers like D. Wiggins, J. McDowell, B. Williams and C. Taylor. The essay goes on to submit these arguments to a critical analysis, not in order to rescue legal practice from the anti-theorist threat, but to explore the possibilities as well as the limits of conceptualizing and normative theorizing in the adjudicative process. One of the basic conditions which has to be met if a normative theory is to have any grip on legal practice, is the following. The process of articulating the evaluative imput of the penal judge on an abstract and theoretical level, only makes sense if its resulting concepts still fit our ordinary language, if these concepts can still be understood as a sort of abbreviation of the judges’ as well as the citizens’ intuitive practices