We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 26 July 2016
Our conversations about punishment have been constrained by the presumption that crimes ought to be punished. This presumption does not entail that crimes must be punished, but rather that punishment occurs as a natural response to wrongdoing instead of as a conventional creation. As a consequence, the challenges for punishment’s justification have been reduced to the problems of purpose, opportunity and form, leaving unaddressed the question of the authority of a certain polity to impose this form of treatment on a given individual. In order to present and criticize this presumption, the article traces its origins by revisiting the debate about the nature of punishment that took place during the emergence of liberal political philosophy. After evaluating the main arguments of this debate the article concludes by arguing that liberal theories of punishment should give up this presumption.
For their helpful comments on earlier drafts of this article, I would like to thank Liam Murphy, Antony Duff, Jeremy Waldron, Moshe Halbertal, Moran Yahav, Emily Kidd White, Hillary Nye, David Barker, Karin Loevy, the candidates and students at the J.S.D. Program at New York University and the editors of this Journal.
1. Unfortunately, however, our actual penal practices do not only concern themselves with these “most fundamental” normative expectations but also with a large group of conduct that is of little, if any, social importance. In this sense, see Husak, Douglas, Overcriminalization (New York: Oxford University Press, 2008) [Husak, Overcriminalization].Google Scholar
2. This is what Anscombe defined as the second part of the justification of punishment, i.e., the question of who has the authority to punish someone in particular GEM Anscombe, “On the Source of the Authority of the State” in Joseph Raz, ed, Authority (New York: NYU Press, 1990) 163 [Anscombe, “On the Source of the Authority of the State”]. A salient exception to this tendency in punishment theory is the work of Antony Duff. See, for example, Duff, Antony, Punishment, Communication, and Community (New York: Oxford University Press, 2001)Google Scholar [Duff, Punishment, Communication, and Community]; Antony Duff, “I Might Be Guilty, but You Can’t Try Me: Estoppel and Other Bars to Trial” (2003) 1:1 Ohio St J Crim L 245 [Duff, “I Might Be Guilty, But You Can’t Try Me”] Antony Duff, “Blame, Moral Standing and the Legitimacy of the Criminal Trial” (2010) 23:2 Ratio 123 [Duff, “Legitimacy of the Criminal Trial”].
3. H Grotius, The Rights of War and Peace: Including the Law of Nature and of Nations (MW Dunne, 1901) at 222 [Grotius, The Rights of War and Peace].
4. For a critical review of this, see Raz, Joseph, The Morality of Freedom (New York: Oxford University Press, 1988) at 8-12 [Raz, The Morality of Freedom].CrossRefGoogle Scholar
5. Hobbes, Thomas, Leviathan (Indianapolis: Hackett, 1994)Google Scholar at ch XIII [Hobbes, Leviathan]; Locke, John, Second Treatise of Government (Indianapolis: Hackett, 1980)Google Scholar at ch II [Locke, Second Treatise of Government]; Raz, The Morality of Freedom, supra note 4 at 12-14; Anscombe, “On the Source of the Authority of the State,” supra note 2 at 146-47; Joel Feinberg, Social Philosophy (Upper Saddle River: Prentice-Hall, 1973) at 20-22.
6. MacCormick, Neil & Garland, David, Sovereign States and Vengeful Victims: The Problem of the Right to Punish (Oxford: Clarendon Press, 1998)Google Scholar [MacCormick & Garland, Sovereign States and Vengeful Victims]. Grotius’s definition of punishment is quite similar, so it should not be a problem to translate their debates into our contemporary views, according to Grotius, “[p]unishment taken in its most general meaning signifies the pain of suffering, which is inflicted for evil actions.” Grotius, The Rights of War and Peace, supra note 3 at 221.
7. Anscombe, “On the Source of the Authority of the State,” supra note 2 at 163.
8. In the first sense, see Alon Harel, “Why Only the State May Inflict Criminal Sanctions: The Case against Privately Inflicted Sanctions” (2008) 14:2 Legal Theory 113. Regarding punishment as a way in which the state constitutes itself, see Weber, M, “The Profession and Vocation of Politics” in Lassman, P & Speirs, R, eds, Weber: Political Writings (Cambridge: Cambridge University Press,1994) 309.Google ScholarFoucault, M, The History of Sexuality, Volume 1: An Introduction, translated by Hurley, Robert (New York: Vintage, 1990) at 133-45.Google Scholar
9. Of course, there will be disagreement about what constitutes serious wrongdoing, but we can find appropriate ways to deal with such disagreement. See Waldron, Jeremy, Law and Disagreement (New York: Clarendon Press Oxford, 1999) at ch 8.CrossRefGoogle Scholar
10. The main theoretical resource to determine the appropriateness of punishment will thus be a theory or a principle criminalization. See Husak, Overcriminalization, supra note 1.
11. This stands in contrast to other areas of government. In the case of tax law, for example, it is clear that the regulation is a political convention, and as such, the very existence of the practice of taxation has been brought into question, not just the substantive prescriptions of a particular taxation scheme. On the other hand, it has been thought that the criminal law is less demanding in terms of legitimacy, as most of its duties are considered pre-political duties. See in this sense, John Simmons, A, Moral Principles and Political Obligations, (Princeton: Princeton University Press, 1981)Google Scholar at 195-201; David Copp, “The Idea of a Legitimate State” (1999) 28:1 Philosophy & Public Affairs 3 [Copp, “The Idea of a Legitimate State”].
12. For a salient example of the strength of the rhetoric of impunity in the Preamble of the UN General Assembly, see the Rome Statute of the International Criminal Court (last amended 2010), July 17, 1998.
13. Jesus-Maria Silva Sanchez, “Doctrines Regarding the Fight against Impunity and the Victim’s Right for the Perpetrator to Be Punished” (2007) 28:4 Pace L Rev 865.
14. Even Antony Duff would hold that when it comes to controversial mala in se we might have a permission to punish, regardless of the unfairness of the social and political conditions in which the offender has been placed by the political community. See, Duff, “Legitimacy of the Criminal Trial,” supra note 2 at 136; Duff, “I Might Be Guilty, but You Can’t Try Me,” supra note 2 at 259; Duff, Punishment, Communication, and Community, supra note 2 at ch 5. About punishment’s tragic nature, see Garland, David, Punishment and Modern Society: A Study in Social Theory, (Chicago: University of Chicago Press, 1993) at ch 12.Google Scholar
15. See O’Donovan, Oliver, The Ways of Judgment (Cambridge: Wm B Eerdmans Publishing, 2005)Google Scholar at 113 [O’Donovan, The Ways of Judgment]. There are other explanations of this move towards an understanding of punishment as something for which the community is not responsible. For example, Danielle Allen argues that anger no longer being considered as a problem of the political community might have led to this change in our understanding of punishment. Allen, Danielle S, “Democratic Dis-Ease: Of Anger and the Troubling Nature of Punishment” in Bandes, Susan A, ed, The Passions of Law (New York: NYU Press, 1999) 205Google Scholar [Allen, “Democratic Dis-Ease: Of Anger and the Troubling Nature of Punishment”].
16. Grotius, Hugo, Commentary on the Law of Prize and Booty (Indianapolis: Liberty Fund, 2006) at 19Google Scholar [Grotius, Commentary on the Law of Prize and Booty].
17. See a general account in Tuck, Richard, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (New York: Oxford University Press, 1999)Google Scholar [Tuck, The Rights of War and Peace].
18. Tierney, Brian, The Idea of Natural Rights (Grand Rapids: Wm B Eerdmans, 1997)Google Scholar at 45, 88-89, 342 [Tierney, The Idea of Natural Rights]; Tuck, The Rights of War and Peace, supra note 17 at 81, 170-71.
19. And even though this view seemed destined for oblivion by the end of 19th century, it regained influence after the Second World War. See Tierney, The Idea of Natural Rights, supra note 18 at 345.
20. Ibid at 333.
21. See a full account of this in Tuck, The Rights of War and Peace, supra note 17.
22. Europe was then organized in several polities which had yet to find a common normative language that would help them deal with their conflicts without resorting to war or brute force. Tierney, The Idea of Natural Rights, supra note 18 at 288-89, 345.
23. A full analysis of this debate can be found in Tuck, The Rights of War and Peace, supra note 17.
24. See Grotius, Commentary on the Law of Prize and Booty, supra note 16 at 372-78; de Vitoria, Francisco, Political Writings (Cambridge: Cambridge University Press, 1992)Google Scholar at 272-75 [Vitoria, Political Writings].
25. Schneewind, JB, The Invention of Autonomy: A History of Modern Moral Philosophy (Cambridge: Cambridge University Press, 1998) at 7;Google Scholar John Plamenatz, Man and Society, vol 1 (Longmans, Green, 1963) at 58; Tuck, The Rights of War and Peace, supra note 17 at 85.
26. Tierney, The Idea of Natural Rights, supra note 18 at 52.
27. Vitoria, Political Writings, supra note 24 at ch xii-xiv.
28. According to Vitoria, the pope’s temporal powers are limited to those who have subjected themselves to faith, thus he is powerless over nonbelievers, Ibid at 258-64.
29. Hobbes, Leviathan, supra note 5 at ch XXVIII; Pufendorf, Samuel, On the Duty of Man and Citizen According to Natural Law (Cambridge: Cambridge University Press, 1991) at 158–62.Google Scholar
30. Basically, the problem was posed by the fact that the Dutch were: 1) waging an offensive war to further their commercial interests without any recognizable justification; and 2) waging these wars without a recognizable political structure. Tuck, The Rights of War and Peace, supra note 17 at 81; Grotius, The Rights of War and Peace, supra note 3 at ch XX, XL.
31. Tuck, The Rights of War and Peace, supra note 17 at 85, 103. Grotius, The Rights of War and Peace, supra note 3 at ch XX, XL; Grotius, Commentary on the Law of Prize and Booty, supra note 16 at 137.
32. Grotius, Commentary on the Law of Prize and Booty, supra note 16 at Prolegomena, 136-37; Tuck, The Rights of War and Peace, supra note 17 at 85.
33. John Simmons, A, “Locke and the Right to Punish” in Cohen, Marshall et al, eds, Punishment: A Philosophy & Public Affairs Reader (Princeton: Princeton University Press, 1995) 221Google Scholar [Simmons, “Locke and the Right to Punish”].
34. Tuck, The Rights of War and Peace, supra note 17 at 85.
35. In his words, “it is impossible to conceive how […punishment] already existed in a state of nature where no man is subject to another.” Samuel Pufendorf, Of the Law of Nature and Nations, translated by CH & WA Oldfather (Oxford: Oxford University Press, 1934) at 1160. In his view, there is nothing problematic about the idea that a power that is sourced in a transfer can be different from the thing that was transferred. He argues that just as the mixture of material bodies can give rise to completely new substances, so can moral bodies give rise to entities that are not reducible to their parts. Ibid at 249.
36. According to Hobbes, for example, there can be no right to punish in a state of nature. This is because moral rights and duties can only arise under an authority that can provide enough assurance over the behavior of fellow human beings. Hence, it is only after the establishment of a sovereign that a right to punish can arise, before this it can only represent an act of hostility. Hobbes, “Leviathan,” supra note 5 at ch XIII and XIV. See in this sense the conceptual restrictions to the idea of punishment in chapter XXVIII of Leviathan. All these restrictions begin from the assumption that punishment can only be exercised by a public authority. These are not definitional stops, in the Hartian sense, but logical consequences of the substantive claim that there is no right to punish in a state of nature. See Hart, HLA, “Prolegomenon to the Principles of Punishment” in Hart, HLA, ed, Punishment and Responsibility: Essays in the Philosophy of Law (New York: Oxford University Press, 1968) 5.Google Scholar
37. Hobbes, “Leviathan,” supra note 5 at ch XXVIII.
38. I thank Jeremy Waldron for pointing out the need to make this clarification.
39. Hobbes, “Leviathan,” supra note 5 at ch XIII p 78.
40. Basic liberal inquiries should make us doubt that punishment is possible in a world of equals that lacks a legitimate political organization through which we can determine the boundaries between right and wrong, adjudicate a conflict and enforce the outcomes of these procedures. Locke was aware of these problems, and this is precisely what triggered his political theory and his claim in favor of the constitution of civil government as a remedy for this malaise. However, Locke’s recognition of these problems did not stop him from affirming that, absent a sovereign, every individual has a natural right to punish, with all the problems that this may entail. Locke, Second Treatise of Government, supra note 5 at 12-13.
41. See in this sense Rousseau’s critique of Grotius philosophical methodology, Rousseau, Jean-Jacques, The Basic Political Writings, translated by Cress, Donald A (Indianapolis: Hackett, 1987).Google Scholar
42. Locke, Second Treatise of Government, supra note 5 at 47; Grotius, Commentary on the Law of Prize and Booty, supra note 16 at 137. It is striking how similar their arguments are, yet it is not clear they had a chance to read each other’s works. Regarding the possibility that this is just a case of intellectual convergence, see Tuck, The Rights of War and Peace, supra note 17 at 82.
43. Locke, Second Treatise of Government, supra note 5 at 10-11. See also Grotius: “[T]he state inflicts punishment for wrongs against itself, not only upon its own subjects but also upon foreigners; yet it derives no power over the latter from civil law, which is binding upon citizens only because they have given their consent; and therefore, the law of nature, or law of nations, is the source from which the state receives the power in question. (…) For the cause of punishments is a natural cause, whereas the state is the result, not of natural disposition, but of an agreement.” Grotius, Commentary on the Law of Prize and Booty, supra note 16 at 137.
44. See generally Duff, Antony, “Responsibility, Citizenship and Criminal Law” in Duff, Antony & Green, Stuart, eds, The Philosophical Foundations of the Criminal Law (Oxford: Oxford University Press, 2011) 125;CrossRefGoogle Scholar Zedner, Lucia, “Is the Criminal Law Only for Citizens? A Problem at the Borders of Punishment” in Aas, Katja Franko & Bosworth, Mary, eds, The Borders of Punishment (Oxford: Oxford University Press, 2013) 40.Google Scholar
45. Of course, the contrast between a foreigner and citizen cannot be drawn in a simple way. There are several complicated legal categories that define the status of an individual with respect to a given state, e.g., you can be a tourist, you can be a working guest, you can be a representative of a different state, etc., and these different statuses will entail different forms of relationships with the state. For the sake of the argument, I will circumvent this complexity and focus on the case of guests who are passing through and have no especial relationship of subordination with their host, which seems to be the case that Locke and Grotius had in mind.
46. Locke, Second Treatise of Government, supra note 5 at 10-11; Grotius, Commentary on the Law of Prize and Booty, supra note 16 at 137.
47. Simmons, “Locke and the Right to Punish,” supra note 33 at 236.
48. David Hume, Moral Philosophy (Indianapolis: Hackett, 2006) at 367.
49. Ibid at 368.
50. In Locke’s terms, denying our capacity to enforce the natural law through punishment would amount to the denial of the natural law itself. Locke, Second Treatise of Government, supra note 5 at 9-10.
51. Ibid at 9-10; Grotius, Commentary on the Law of Prize and Booty, supra note 16 at Prolegomena, 21, 27, 30-32. For a clarifying analysis of the way this argument appears in Grotius, see Tuck, The Rights of War and Peace, supra note 17 at 84-86.
52. Locke, Second Treatise of Government, supra note 5 at ch II.
53. Ibid at 11.
54. Ibid at 13-14; Grotius, Commentary on the Law of Prize and Booty, supra note 16 at 21-31.
55. MacCormick & Garland, Sovereign States and Vengeful Victims, supra note 6.
56. I am grateful to Jeremy Waldron for pointing out this problem to me, and the need to clarify this distinction. Punishment prevents offenses in many different ways; it does so through deterrence, rehabilitation, incapacitation, moral education, etc. In this way, punishment can be a mode of defense, but it is also something else, as by definition it takes place after an offense. A natural right of defense cannot fully ground a right to punish, because as a form of interaction, punishment is always morally different from defense as it is always a response to a wrong that already took place, and it is precisely as a form of interaction that punishment is being considered in this paper.
57. Consider that in most legal orders self-defense is considered permissible while private punishment is not. Punishment and self-defense are certainly distinct, punishment is not a necessary response to protect a certain interest or right; the harm or wrong has already taken place. The logic of deterrence or prevention does not equal the logic of defense, which is an immediate and necessary reaction in order to prevent a concrete harm or wrong from taking place. Now, there have been some attempts to understand punishment as self-defense in the sense of being an instance of societal defense, see in this sense Montague, Phillip, Punishment as Societal-Defense (Lanham: Rowman & Littlefield, 1995).Google Scholar Unfortunately I have not time or space to give fair consideration of such views, but I will say that it seems very unconvincing to argue that societies have rights of their own. Rather they are conventional constructions created to protect the rights of the individuals within, any attempt to provide societies with the moral attributes of individuals seems to take us in a dangerous path.
58. In Vitoria’s reasoning, for example, this difference between the power to defend and the power to punish appears very clear, as only the defensive use of force is a natural moral entitlement of individuals, i.e., it is permissible outside a political relationship. Vitoria, Political Writings, supra note 24 at 287-88. Pufendorf also differentiated between the right to exact punishment and the right of self-preservation as distinct forms of response to offense, as punishment was unavailable in a pre-political moment while defensive force was permitted. Actually, he thought that the most that individuals could do in a pre-political state would be to retaliate against offenses, and this is a capacity that springs from the right of self-preservation and not from a right to punish. Pufendorf, “Of the Law of Nature and Nations,” supra note 35 at Book VIII, Ch 3. According to his view, in order for the offensive force that is entailed by punishment to constitute an instance of punishment instead of an instance of hostility, there must be a relationship of authority that is absent in the state of perfect equality among individuals, which characterizes the pre-political condition of human beings. Ibid at Book VIII, Ch 3, Section 1.
59. Immanuel Kant, The Philosophy of Law, translated by W Hastie (Edinburgh: T and T Clark, 1887) at 218 [Kant, The Philosophy of Law]. Sharon Byrd offers the following understanding of Kant’s argument: “every individual, as a moral agent with intrinsic value, is endowed with one natural right, namely freedom. To the extent that exercising his freedom externally does not violate another’s right to external freedom, he may not be restricted in any way. At the point it does, it no longer is an expression of freedom that can coexist with the freedom of all under universal law. Any external coercion, that counteracts this infringement restores freedom and is necessarily compatible with the freedom of all. The force justified, which limits goal-directed behavior, is direct and immediate. It is not revenging, not prophylactic and can occur in the state of nature. It does not suffice to secure rights. It, therefore, cannot be the basis of society’s right to punish criminal law violations.” See B Sharon Byrd, “Kant’s Theory of Punishment: Deterrence in Its Threat, Retribution in Its Execution” (1989) 8:2 Law & Phil 151 at 180-81.
60. To my knowledge, most normative orders recognize a permission to use violence in order to protect oneself or someone else from a threat or a danger, but this permission does not cover violence that comes after the threat has materialized.
61. Kant, The Philosophy of Law, supra note 59 at 47.
62. This conclusion, again, comes as a consequence of a skeptical stance against power that, in liberal thought, is triggered by the presumption of liberty.
63. O’Donovan, The Ways of Judgment, supra note 15 at 113.
64. Theories of punishment are basically concerned with the definition and defense of what these principles are, e.g., desert, deterrence, etc. Political theory, on the other hand, is concerned with a generic justification of public coercion and shows no particular concern with punishment, because it seems that the strong connection between criminal law and morality makes the issue of legitimacy less acute, See for example, Simmons, Moral Principles and Political Obligations, supra note 11 at 195-201; Duff, Punishment, Communication, and Community, supra note 2 at 182 ff; Copp, “The Idea of a Legitimate State,” supra note 11 at 4.
65. A salient exception to this tendency in punishment theory is the work of Antony Duff. See, for example, his Punishment, Communication, and Community, supra note 2; Duff, “Legitimacy of the Criminal Trial,” supra note 2; Duff, “I Might Be Guilty, but You Can’t Try Me,” supra note 2. There is wide recognition of the appalling levels of social and political exclusion and discrimination in that constitute the environment of our penal practices, yet they are not usually taken as an issue for punishment’s normative theory. See, for example, Western, Bruce, Punishment and Inequality in America (New York: Russell Sage Foundation, 2006);Google Scholar Ferguson, Robert A, Inferno (Cambridge: Harvard University Press, 2014);Google Scholar Stuntz, William J, The Collapse of American Criminal Justice (Cambridge: Harvard University Press, 2011).CrossRefGoogle Scholar We shall see that since the political nature of punishment is disguised, it will become untenable to keep the spheres of social and criminal justice separated from each other, because they, together, constitute the ground from which political authority stems.
66. I am here assuming that political authority requires some basic level of fairness in the political relationship, which translates mostly to the existence of certain social and political conditions. See in this sense, Rawls, John, A Theory of Justice (Cambridge: Harvard University Press, 2005) at ch 6;Google Scholar Dworkin, Ronald, Law’s Empire (Cambridge: Belknap press, 1986) at ch 6;Google Scholar Beitz, Charles R, Political Equality: An Essay in Democratic Theory (Princeton: Princeton University Press, 1990) at ch 5.Google Scholar
67. According to Danielle Allen, this would be a move backwards, at least to the extent that punishment used to be considered an issue of the community and not a problem between the victim and the offender in which the community intervenes in a superficial manner. See Allen, “Democratic Dis-Ease. Of Anger and the Troubling Nature of Punishment,” supra note 15 at 197.
