ABSTRACT
Alan Brudner’s Punishment and Freedom: A Liberal Theory of Penal Justice (2009) is a formidable contribution to the debates around punishment and criminal responsibility. It is systematic and thorough in its exploration of theory and its implications for the different avenues of legal responsibility. Brudner and I share some things in common and disagree on some other things. We hold positions that in some ways overlap and in other ways diverge. The latter will be the main focus of this paper, so it is important to acknowledge the strength and complexity of Brudner’s account. It is also important to say that this is my first encounter with his book, and I am aware that I may have misunderstood some of its arguments. So this chapter should be taken as a first attempt to master the work and to think critically from my own perspective on it. Brudner’s focus on the criminal law and an account of it that is Hegelian in its
inspiration places us in a similar intellectual space, although we have taken different views of what should be made of Hegel in interrogating the nature of modern criminal law. In Brudner’s account, Hegel operates alongside Kant to, as it were, ‘complete’ him by showing how the core Kantian understanding of freedom needs to be seen in a broader context of concepts, which together establish a complex unity. In this way, Brudner achieves an understanding of liberal criminal law as essentially political in its foundation, and establishes a line of argument that works between two alternative approaches: one that is moral in its inspiration, the other that is critical. I will explain these terms in a moment, but to introduce my own approach
alongside Brudner’s, my work has taken the form of a critique of modern criminal law theory, which traces its underlying problems to their rooting in core liberal ideas associated with Kant and Hegel, but sees dialectical method as essential to understanding the way criminal law works in society. I particularly like the Kantian element in Brudner’s approach for reasons I will explain. Thus, although we use the Kant-Hegel tradition in different ways, there is a common core in our identification of this line of thinking as central to an understanding of modern criminal law. However, we come to very different conclusions.1
