War and Punishment According to Two 19th Century American Jurists

Abstract

This article reflects on the relationship between punitive power, politics, and war, arguing that, like homicide, mass war is a crime that cannot be justified under the principle of self-defense. Furthermore, it critically analyzes how, despite his efforts, Alberdi's thinking fails to reconcile his critique of war with the justification of punishment, as both affect innocent individuals. On the other hand, Barreto, outside the academic sphere, argues that neither punishment nor war can be justified as defenses, but rather are acts of political power. Both thinkers reveal the inherent contradiction in legitimizing punitive power, an issue that remains relevant in the contemporary debate on criminal law.