ABSTRACT
This chapter demonstrates that a number of classical ‘common sense’ ideas about criminal punishment. Human rights law sets important limits on how the state may punish. It provides guidelines on the acceptable forms of punishment and the way punishment is imposed and executed through three key norms. These include: the principle of legality, the prohibition of certain forms of punishment described variously as cruel and unusual or inhuman and degrading, and the principle of proportionality of punishment to crime. The principle of legality is believed to have acquired the status of a customary norm in international law. International and domestic courts have interpreted the norm to hold corporal punishment as inherently unacceptable form of punishment. The prohibition of corporal punishment as a form of cruel and inhuman punishment enjoys wide consensus within the international human rights regime. Despite the pervasiveness of utilitarian reasoning in constitutional jurisprudence, the idea of human rights as categorical claims is embedded within ‘human rights orthodoxy’.
