Jurisprudence and Oakeshott

Here is a just published paper that draws heavily on Oakeshott.

Ratio Juris. Vol. 23 No. 4 December 2010 (460–78)

Abstract. There is a vast literature on the meanings of legal penalties. However, we lack a theory that explains them according to the formation of the modern state. Oakeshott’s theory can help explain this phenomenon, leading to an attempt of the individual to take over as many powers of the state as possible. Thus, Kant’s and Smith’s retributivism is the most consistent of all those theories. Nevertheless, the preventive and resocializing theory of Bentham succeeded eventually. But is this a liberal theory? We contrast the explanations of H.L.A. Hart and Frederick Rosen in order to lay the groundwork for a liberal theory of the meaning of legal sanctions.