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Published online by Cambridge University Press: 12 September 2019
An influential view in recent philosophy of punishment is that the apparatus of criminal justice should be geared at least in part to state censure of wrongdoing. I argue that if it were to be so geared, such an apparatus would make ambitious claims to authority, and that the legitimacy of the relevant state would then depend on whether those claims can be vindicated. This paper looks first at what kind of authority is being claimed by this apparatus. The criminal law, I argue, cannot merely be thought of as claiming a right to rule and to be obeyed. Rather, its authority is better understood as the authority of moral oversight: a power to alter, at will (though within certain limits), citizens’ liability to answer for their compliance with—and to be officially censured for their failure to comply with—a designated set of pre-existing moral 7reasons. The paper then looks at whether a state could realistically be expected to possess such authority—that is, whether a state that claims to have such a power could ever be legitimate.
This paper has had a long genesis, and I am very grateful to those who read and/or discussed previous versions, or the ideas contained therein, and who helped me to get it into its current state. Ancestors of the paper were presented at Sheffield, LSE, Warwick, Minnesota, Glasgow, HU Berlin, CEU, and at the MANCEPT Workshops on Political Theory. I would particularly like to thank Dimitros Kyritsis, Massimo Renzo, Richard Dagger, William Edmundson, Mary Sigler, Stefan Sciaffra, Matthew Noah Smith, Federico Picinali, Mike Redmayne, Victor Tadros, Kimberley Brownlee, Adam Slavny, John Tasioulas, Ambrose Lee, Cecile Fabre, Zachary Hoskins, Carl Fox, José Luis Martí, Richard Child, Jules Holroyd, Antje Dubois-Pedain, Antony Duff, Rowan Cruft, Jay Wallace, Erasmus Mayr, Felix Koch, Tatjana Hörnle, Andres Moles, Micha Gläser, Mollie Gerver, Joseph Raz, Glenn Pettigrove, Lindsey Farmer, David Hayes, and Richard Healey. I am also grateful for the very helpful comments of anonymous referees. Special thanks go to Daniel Viehoff for many illuminating conversations on these topics.
1. In previous papers I attempted to address the implications of the censure theory for political authority, but gave answers that were quite different from the one proposed here (though not necessarily incompatible with it). I now see these earlier attempts as at best incomplete. See my State Denunciation of Crime, 3 J. Moral Phil. 288 (2006); and my Expressive Punishment and Political Authority, 8 Ohio St. J. Crim. L. 285 (2011).
2. See, e.g., Feinberg, Joel, The Expressive Function of Punishment, in Doing and Deserving 95 (1970)Google Scholar; R. A. Duff, Trials and Punishments (1986); Primoratz, Igor, Punishment as Language, 64 Phil. 187 (1989)Google Scholar; John Braithwaite & Philip Pettit, Not Just Deserts: A Republican Theory of Criminal Justice (1992); Andrew von Hirsch, Censure and Sanctions (1993); R. A. Duff, Punishment, Communication, and Community (2001); Christopher Bennett, The Apology Ritual (2008); Glasgow, Joshua, The Expressivist Theory of Punishment Defended, 34 Law & Phil. 601 (2015)CrossRefGoogle Scholar; Bill Wringe, An Expressive Theory of Punishment (2016). Furthermore, many who are not fully paid-up communicative theorists broadly agree with what Husak has characterized as the “retributivist's dream” of aligning criminal liability with blameworthiness and hence are committed to seeing some important connection between punishment and the expression of blame. See Husak, Douglas, “Broad” Culpability and the Retributivist Dream, 9 Ohio St. J. Crim. L. 449 (2012)Google Scholar. For some discussion, see Shoemaker, David, Blame and Punishment, in Blame: Its Nature and Norms 100–118 (Justin Coates, D. & Tognazzini, Neal A. eds., 2013)Google Scholar.
3. R. A. Duff is one target of this paper since he is committed to these three propositions. The three propositions represent a more moderate position than Duff's only in the sense that MALA IN SE applies the communicative account to a limited set of crimes, whereas Duff has attempted to apply it to a much wider set. See, e.g., his Answering for Crime: Responsibility and Liability in the Criminal Law (2007). But I take these propositions also to be implications of the expressive theory of punishment I defended in The Apology Ritual. As mentioned in note 2, however, I take it that many theorists in legal and political philosophy are sympathetic to the aspects of a communicative view that I outline here, whether or not they accept the communicative view in full; this fact makes the investigation of the authority-commitments of these propositions particularly pressing.
4. On normative powers, see Joseph Raz, Practical Reason and Norms (1975); David Owens, Shaping the Normative Landscape (2011).
5. A. John Simmons, Moral Principles and Political Obligations (1979). See also Robert Paul Wolff, In Defense of Anarchism (1970); Joseph Raz, The Authority of Law (2d ed. 2009), at ch. 1; Joseph Raz, The Morality of Freedom (1986), at chs. 2–3. For a representative discussion, see Shapiro, Scott, Authority, in Oxford Handbook of Jurisprudence and Philosophy of Law 382–439 (Jules Coleman & Scott Shapiro eds., 2002)Google Scholar.
6. For the claim about authority, see, e.g., Raz, Joseph, Authority and Justification, 14 Phil. & Pub. Aff. 3 (1985)Google Scholar; Simmons, A. John, Justification and Legitimacy, 109 Ethics 739 (1999)CrossRefGoogle Scholar. For the defenders of legitimacy, see Ladenson, Robert, In Defense of a Hobbesian Conception of Law, 9 Phil. & Pub. Aff. 134 (1980)Google Scholar; Copp, David, On the Idea of a Legitimate State, 28 Phil. & Pub. Aff. 3 (1999)CrossRefGoogle Scholar; Buchanan, Allen, Political Legitimacy and Democracy, 112 Ethics 689 (2002)CrossRefGoogle Scholar.
7. See, e.g., Raz, supra note 6.
8. The problem that I am pointing to here has parallels with the “paradox of the just law” discussed in Scott Hershovitz, The Authority of Law, in The Routledge Companion to Philosophy of Law 65–75 (Andrei Marmor ed., 2012).
9. Duff, Punishment, Communication, and Community,supra note 2, at 58.
10. Von Hirsch's view regards censure as justifiably backed up by coercive threat-based prudential supplements. See his Censure and Sanctions, supra note 2.
11. Duff, Punishment, Communication, and Community, supra note 2, at 64.
12. Id.
13. For a source of this view, see Stephen Darwall, The Second-Person Standpoint (2006).
14. Todd, Patrick, A Unified Account of the Moral Standing to Blame, 53 Noûs 17 (2017)Google Scholar.
15. For some discussion of this point, see, e.g., Corey Brettschneider, When The State Speaks, What Should It Say? (2012).
16. Cf. the concerns expressed in Brownlee, Kimberley, The Offender's Part in the Dialogue, in Crime, Punishment, and Responsibility: The Jurisprudence of Antony Duff (Cruft, Rowan, Kramer, Matthew H. & Reiff, Mark R. eds., 2011)Google Scholar.
17. Antony Duff, Lindsay Farmer, Sandra Marshall & Victor Tadros, The Trial on Trial vol. 3: Towards a Normative Theory of the Trial (2007); John Gardner, Offences and Defences (2007). For a contrasting view, see Redmayne, Mike, Theorizing the Criminal Trial, 12 New Crim. L. Rev. 287 (2009)CrossRefGoogle Scholar.
18. Richard Dagger, Playing Fair: Political Obligation and the Problems of Punishment (2018).
19. Alan Brudner, Punishment and Freedom: A Liberal Theory of Penal Justice (2009); Arthur Ripstein, Force and Freedom: Kant's Legal and Political Philosophy (2009); Thorburn, Malcolm, Criminal Law as Public Law, in Philosophical Foundations of Criminal Law 21–43 (Duff, R. A. & Green, Stuart P. eds., 2011)CrossRefGoogle Scholar.
20. It is no accident, the objection might say, that Duff's illustration of his account of punishment in Trials and Punishments relies heavily on the model of the Church.
21. See, e.g., Klosko, George, Presumptive Benefit, Fairness and Political Obligation, 16 Phil. & Pub. Aff. 241 (1987)Google Scholar. This strategy could be seen as compatible with Raz's service conception of authority. See Raz, supra note 6. This is not the only strategy that could be used. For instance, there are other Lockean or Kantian strategies that start from the assumption of individual rights that are then collectivized into state authority. In looking at the public goods strategy I am not rejecting the Lockean and Kantian strategies. In order to repel the objection, I only need one successful line of response.
22. Feinberg, supra note 2.
23. Devlin, Patrick, Morals and the Criminal Law, in The Enforcement of Morals (1965)Google Scholar.
24. Raz, The Authority of Law, supra note 5, at 51, where these claims are central to his defense of the “Sources Thesis.”
25. Raz, supra note 6.
26. Raz, The Authority of Law, supra note 5, at 266.
27. John Paul II, Pastor Bonus (1988).
28. Duff, Punishment, Communication, and Community,supra note 2. For another view that sets a high value on seeking actual remorse in criminal justice, see, e.g., Nick Smith, Justice Through Apologies: Remorse, Reform, and Punishment (2014).
29. Bennett, supra note 2.
