Abstract
The idea that victims of social injustice who commit crimes ought not to be subject to punishment has attracted serious attention in recent legal and political philosophy. R. A. Duff has argued, for example, a states that perpetrates social injustice lacks the standing to punish victims of such injustice who commit crimes. A crucial premiss in his argument concerns the fact that when courts in liberal society mete out legitimate criminal punishments, they are conceived as acting in the name of all citizens—on behalf of the whole political community. Resisting this premiss, Peter Chau has suggested that courts ought to be conceived as acting only in the name of “just citizens”: citizens who cannot be plausibly seen as having contributed to distributive injustice. When conceived in this way, Chau argues, courts can no longer plausibly be regarded as lacking standing to punish. This article uses the debate between Duff and Chau to explain why the question of whether to punish socially deprived offenders can only be answered adequately when connected to broader concerns of democratic theory. Specifically, it argues that Chau’s proposal is not available within the context of the kind of political community upon which (Duff rightly believes) a system of liberal criminal law depends for its justification and maintenance: a community in which citizens see the law as embodying shared norms whose specific demands they disagree about. State officials are morally permitted to see themselves as acting on behalf of a subset of the citizenry, I argue, only in circumstances of democratic crisis: circumstances in which a moral community can no longer be plausibly said to exist.
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Notes
That people can reasonably disagree about the nature and meaning of a good life has been a liberal mantra for a long time. The idea here is that free exercise of practical reason can lead people to divergent conclusions on matters of great importance. This concerns the much-discussed idea of ‘the burdens of judgement’ (see Rawls 2005, pp. 54–58).
We are reminded of a familiar objection here. If, as familiar from such liberal theorists as Rawls, the fact of reasonable disagreement about the good life indicates that political power ought not be justified with reference to a particular view of the good, why does the fact of reasonable disagreement about a justice claim not similarly disqualify it from usage in political justification? The answer can be straightforwardly explained by revisiting the starting question for reasoning about what the liberal state should do, a question from which Duff himself presumably begins: what principles for the general regulation of behaviour treat others as free and equal? Now we can reexamine each kind of reasonable disagreement in light of this question. Firstly, the fact of reasonable disagreement about the good life prepares us to realise that letting others live their lives freely, as the starting commitment of the liberal state avows, will result in enduring pluralism. There is no impetus in a liberal society to overcome disagreements about the good life in the political realm. But reasonable disagreements about justice involve competing attempts to answer the starting question of liberal politics—they concern disputes about the demands of a shared commitment. Citizens who reasonably disagree about tax policy and police policy cannot thus plausibly think that their disagreements commit them to give up on finding a tax policy or a police policy, for such a move would entail abandoning what it is they are disagreeing about: the realisation of justice. They agree that some acceptable solution is required, even as they continue to disagree about what the best solution is. For a discussion of this “asymmetry objection” to political liberalism, see Quong 2011, pp. 192–220.
That it is a debate is revealed by the various footnotes in Chau's work indicating Duff's suggested refutations of Chau's position.
Why libertarians? Firstly, because even right-libertarians should be committed, as Nozick exhorts them in the final pages of Chapter 7 of Anarchy, State, and Utopia, to redistributive policies that rectify historical injustices (1974, p. 231). Secondly, most libertarians would object to the maddening range of disproportionate criminal penalties, especially for infractions such a drug possession or sale which libertarians judge not to be properly criminalised.
“Co-opted” because there is no plausible libertarian theory, on the right or left, that could justify their position.
Note that this aspiration—to protect innocents from socially deprived offenders—is difficult to motivate theoretically from within Duff's account of punishment, which focuses on moral communication oriented toward penance and restoration, rather than crime prevention. This potentially reveals an important lacuna in his theory. I cannot address this objection here
One might think that the discussion of the moral permissibility of torture in the US over the past decade reveals some rectifiable disalignment. The anti-torture forces had been convinced that torture was on liberal democracy’s “black list”—that it was something it would never do, being beyond the pale. Nevertheless those who opposed torture did not proceed as though their political adversaries were beyond persuasion. They saw the disagreement, though unreasonable, as rectifiable. I thank Jeremy Waldron for this example.
It is, of course, logically possible for a co-citizenry to rest in major agreement on all major questions of policy except one, on which they intractably and irreconcilably disagree. Consider, after all, the case of abortion. Does a moral community exist in such a case? It is difficult to say. Provided both sides are committed to the position that dispute over the one issue will not destroy the rest of their politics, a plausible answer is “yes”.
This phrase is more crucial than many philosophers—I suspect including Chau—would concede. The point of political and moral philosophy is not to identify the principles that enable God to track rightful and wrongful actions from the cosmos, but rather to identify principles that can enduringly regulate our own actual human practices.
References
Barry, B. (2001). Culture and equality. Oxford: Polity Press.
Chau, P. (2012). Duff on the legitimacy of punishment of socially deprived offenders. Criminal Law and Philosophy, 6(2), 247–254.
Cohen, G. A. (2008). Rescuing justice and equality. Cambridge: Harvard University Press.
Cohen, J. (2009). Philosophy, politics, democracy. Cambridge: Harvard University Press.
Duff, R. A. (1998). Principle and contradiction in the criminal law. In R. A. Duff (Ed.), Philosophy and the criminal law (pp. 156–204). Cambridge: Cambridge University Press.
Duff, R. A. (2000). Whose Law is it anyway? Inclusion, exclusion and the criminal law. Scottish Affairs, 30, 2–15.
Duff, R. A. (2001). Punishment, communication, and community. Oxford: Oxford University Press.
Duff, R. A. (2007). Answering for crimes. Oxford: Hart Publishing.
Duff, R. A. (2010). Blame, moral standing, and the legitimacy of criminal trial. Ratio, 23(2), 123–140.
Estlund, D. (2007). Democratic authority. Princeton: Princeton University Press.
Holroyd, J. (2010). Punishment and justice. Social Theory and Practice, 36(1), 78–111.
Matravers, M. (2006). Who’s still standing: a comment on Antony Duff’s preconditions of criminal liability. Journal of Moral Philosophy, 3(3), 320–330.
Nozick, R. (1974). Anarchy, state and utopia. Malden: Basic Books.
Nussbaum, M. (2008). Liberty of conscience. New York: Basic Books.
Quong, J. (2011). Liberalism without perfection. Oxford: Oxford University Press.
Rawls, J. (2005). Political liberalism. New York: Columbia University Press.
Tadros, V. (2009). Poverty and criminal responsibility. Journal of value inquiry, 43, 391–413.
Waldron, J. (1999). Law and disagreement. Oxford: Oxford University Press.
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Howard, J. Punishment, Socially Deprived Offenders, and Democratic Community. Criminal Law, Philosophy 7, 121–136 (2013). https://doi.org/10.1007/s11572-012-9179-4
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DOI: https://doi.org/10.1007/s11572-012-9179-4