The influence of human rights on penal policymaking

This chapter explores the dual and seemingly paradoxical influence of human rights on penal policymaking. On one hand, human rights act as a ‘shield’, moderating penal policy by setting limits on state punishment, protecting prisoners’ rights, and challenging inhumane practices. On the other hand, they function as a ‘sword’, driving penal expansion by legitimising 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 humanised penality, human rights can then, without moral qualms, legitimise that same penality as a necessary ‘sword’ to uphold universal values. The chapter analyses 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 rights.