An accidental innovation case on punishment: the brazilian drug law

This paper is a reflection on alternatives to imprisonment and, more generally, on the complex relationships between the concepts of punishment and innovation. for this purpose, we will discuss a concrete example taken from the Brazilian criminal legislation, a new drug law disposition (2006), in order to emphasize the theoretical interest as well as the ethical stakes which the concept of penal innovation can underscore. this legislation introduces a hyper-improbable modification of the concept of punishment and it will therefore enable us to develop our arguments along seven points: 1) to describe the legislative modification which will serve as the backdrop to our discussion; 2) to introduce the conceptual tools needed to describe this legislative modification; 3) to enunciate the status that the auto-referential systems theory gives to law making; 4) to direct the reader's attention toward two historically deviant ways to conceptualize punishment; 5) to introduce some historical markers of the dominant concept of punishment ¡with respect to criminal justice]; 6) to illustrate the re-stabilization and the generalization of the dominant or "normal " concept of punishment and, finally, 7) to come back, in conclusion, on the central concepts addressed in our discussion.

Modern penal rationality; punishment; innovation; system of criminal law


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