The influence of human rights on penal policymaking

Mattia Pinto

Chapter 6 in Research Handbook on Penal Policy, 2026, pp 111-131 from Edward Elgar Publishing

Abstract: Chapter 6 explores the dual and seemingly paradoxical influence of human rights on penal policymaking. On the one hand, human rights act as a ‘shield’, moderating penal policy by setting limits on state punishment, protecting prisoners’ rights, and challenging inhuman practices. On the other hand, they function as a ‘sword’, driving penal expansion by legitimizing and demanding criminal punishment for serious human rights violations. This chapter argues that these two functions are not contradictory. It proposes that human rights engage in a form of penal governance, seeking to align the penal system with human rights values. By demanding a ‘shielded’ and humanized penality, human rights can then, without moral qualms, legitimize that same penality as a necessary ‘sword’ to uphold universal values. The chapter analyzes this dynamic to demonstrate that the primary role of human rights is not simply moderation or expansion, but the governance of punishment to serve the end of protecting fundamental rights.

Keywords: Human rights; Penal moderation; Penal expansion; Penal governance; Penal policy; Prisoners’ rights (search for similar items in EconPapers)
Date: 2026
ISBN: 9781035308521
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