It is sometimes thought that the normative justification for responding to large-scale violations of human rights via the judicial appararatus of trial and punishment is undermined by the desirability of reconciliation between conflicting parties as part of the process of conflict resolution. I take there to be philosophical, as well as practical and psychological issues involved here: on some conceptions of punishment and reconciliation, the attitudes that they involve conflict with one another on rational grounds. But I shall argue that there is a conception of political reconciliation available which does not involve forgiveness and this forms of reconciliation may be the best we can hope for in many conflicts. Reconciliation is nevertheless likely to require the expression of what Darrell Moellendorf has called ‘political regret’ and the denunciatory role aspect of punishment makes it particularly well-suited to this role.
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Wrongdoing can be public in a number of different senses: it can be committed in public (rather than behind closed doors); by individual members of the public; or be properly of concern to the public. (Duff 2001 has argued that publicity in this last sense is definitive of behavior which deserves criminalization) Much of the wrongdoing with which I am concerned with here will be public in at least some of these other senses.
I shall make the reasons for this limitation explicit in Section X: they have to do with the extent to which international organisations can be regarded as speaking for the public. For a discussion of how the denunciatory theory of punishment which I defend here might apply to cases such as punishment by international tribunals and by the ICC, see Wringe 2006, 2010 and Wringe 2016a Chapters 7 and 8.
If, as Vernon 2002 argues, the use of state power against citizens is definitive of the category of crimes against humanity, many though perhaps not all of the examples that I shall be concerned with fall into that category.
As both Minow 1998 and May 2004 emphasize. In a discussion of debates about the resolution of conflicts in the former Yugoslavia in the 1990’s, Minow notes a concern among policy-makers at the time that ‘to proceed with arrests and trials of leaders would undermine efforts not only to negotiate, but to stabilize efforts for justice and peace (Minow 1998 p 39) Similarly, May writes ‘The goals of reconciliation all concern the attainment of that peace and security among people that we all seek…criminal trials sometimes exacerbate rather than diminish the tensions and divisions between peoples.’ (May 2004 pp 237–8)
As one anonymous referee for this journal made especially clear.
I there note in particular how some of the considerations which Feinberg takes to support his version of expressivism seem to support my view as well, and argue that for those who are committed to some form of expressivism on the basis of the arguments put forward in Section II should accept the denunciatory view rather than any other currently articulated version of expressivism.
Someone might think that in appealing to UCE to resist Boonin’s argument for the view that punishment can’t be justified, I acquire an obligation to respond to the ‘hard treatment problem, since I am making the expressive nature of punishment relevant to the justification of punishment. But I do not think so. Appealing to UCE in order to show that a premiss in Boonin’s argument is false is not the same as appealing to some particular expressive feature of punishment explains why punishment is justified. We can see this by noting that someone who accepted UCE might think it undermines Boonin’s argument, while thinking that any expressive feature of punishment that might conceivably explain why punishment is justified must fail to do so because that feature of punishment could be shared by other responses to crime that did not involve harsh treatment. One could even think all of this while holding that the harsh treatment involved in punishment might be justified is some way entirely independent of it’s expressive features (for example, on deterrent grounds)
Feinberg 1965 pp 402–3.
Feinberg 1965 pp 397–8.
Forgiveness is itself a somewhat contested term. It is often characterized (following Butler) as the giving up of resentment. If we understand the term resentment as a place-holder for a variety of vindictive attitudes, as Murphy 2003 suggests, then we might think that even on this view, we should see reconciliation as involving forgiveness. If so, and if we accept the Feinbergian view that punishment involves a kind of vindictive resentment then the tension between the attitudes involved in punishment and those involved in reconciliation will seem especially clear. However I shall argue in Sections VII and VIII that it is helpful to think of reconciliation in somewhat different terms.
An alternative possibility is that we should see reconciliation as a relationship between different groups in a society. However I am skeptical about this suggestion. The proposal only seems promising if we think of the kinds of groups to which it applies being groups to which membership is assigned on the basis of identity-based features such as ethnicity, race or religion. However, although I am committed to the view that some kinds of groups - for example, agent-like groups such as states, and Gilbert style plural subjects - can be the subjects of the kinds of attitudes that I take to be required for reconciliation, this will not in general be true of identity-based groups. For further discussion, see Section VI below.
People can sometimes hold attitudes that conflict in the ways I take the attitudes involved in punishment and reconciliation to conflict. But people can also have inconsistent beliefs: this doesn’t show that there is no rational conflict between believing p and believing not p. For helpful discussion of the phenomenon in the emotional case, which emphasizes that there is indeed some kind of conflict between the content of the attitudes involved see Greenspan 1980.
(An advocate of VRE will of course agree with this. This is unsurprising since VRE is simply a way of adding to UCE some of the specificity which UCE by itself lacks
For conceptions of the state along these lines see Gilbert 2008; Stilz 2009, and for an application to the philosophy of law see Shapiro 2011. For a more detailed development and defense of the idea that it is the form of expression of a collective agent that we should be considering here which is in question here see Wringe 2016 chapter 3.
This is not to say that the state’s attitudes are do not depend in any way on the attitudes of its members, but only that it may have attitudes that do not match those of any given set of individuals. See List and Pettit 2010 for a defense of the idea that the attitudes of group or collective agents cannot be reduced to the attitudes of individuals
There are other problems with the idea that political reconciliation should simply be seen as a relationship between citizens. In many cases, the state is one of the agents which has been implicated in harms to citizens. To see it as standing outside the population of individuals between whom reconciliation is required seems to overlook something important. Furthermore the suggestion seems to involve a conception of reconciliation which at least some theorists of political reconciliation would regard as unduly limited. On views like this political reconciliation necessarily has a public dimension to it. Thus for example, Colleen Murphy (Murphy 2010) has argued for a view of political reconciliation on which reconciliation constitutively involves the rule of law. This can’t simply be something constituted by the attitudes of individuals: it must be realized in public institutions.
Feinberg’s version of expressivism was first put forward in 1965. Expressivism has been defended by Duff et al. (2007, 2001); Hampton (1992); Metz (2000, 2007); Lippke (2007); Bennett (2008); Glasgow (2015) and Lee (2015). Many of these views conflict with Feinberg on a number of issues, including the question of what exactly punishment expresses and who it expresses it to, For my own views see Section IX and Wringe 2016a chapters 2–4
Bennett 2008 pp 13–26. The critique to which he is responding originates with Christie 1976
Duff 2001 pp 42–8
Bennett 2008 pp 125ff
For some skepticism on this score see McNaughton and Garrard 2010 pp 57–62
Fletcher and Weinstein 2002
I am grateful to an anonymous reviewer for Philosophia for making clear the need to spell out the argument for rejecting this interpretation of Moellendorf’s position.
It’s worth noting that although I claim political regret is a necessary condition for the right kinds of relationships between citizens in the political domain, I don’t claim that it is a sufficient condition.
Or perhaps between different groups in a society. See footnote 18 for further discussion of this suggestion.
I am grateful to an objection from an anonymous reviewer for Philosophia for a question which prompted this clarification.
Other possibilities are logically possible: we might take the intended audience of legal punishment to be the officials of the legal system; or God; or posterity. But as far as I know, no advocate of an expressive view has defended any of these possibilities. So I shall not consider them here.
For some skepticism on this score see Wringe 2006
It is also worth forestalling a further misunderstanding of my view, which occurred to an ingenious anonymous reviewer for Philosophia. My claim is that the form of denunciatory expression which is constitutive of punishment can - under the right circumstances - be a way of expressing political regret. For punishment to be a way of expressing political regret, certain further conditions must be satisfied. For example, only some kinds of actions can be the object of political regret. To a first approximation, a crime can only be the object of political regret if it is either committed by or condoned by a body with political authority. So for example many crimes committed by individuals for their own purposes could not be the object of political regret, since they do not have any political dimension. Since there is no such thing as political regret for such crimes, there is no such thing as expressing political regret for them. So punishment will not express political regret for them. As a result, I do not hold that punishment must always express political regret. So it would be a serious misunderstanding of my view to take it to entail that actions performed by the state in response to individual crimes such as petty thievery cannot be punishment, because they do not express - or cannot plausibly be taken to express - political regret.
This third condition – that punishment is for acts carried out on behalf of, or sanctioned by the state = explains why not all instances of punishment will express political regret. (As I noted in Section VI, one cannot regret, in the relevant sense, actions that are not in any way one’s own.)
And this is what we should expect, since reconciliation and political regret are only appropriate in some states, some of the time.
I am grateful to an anonymous referee for Philosophia for giving me the opportunity to address this ingenious misunderstanding of my view.
I here make good the promissory note issued in footnote 2. I should note that I do not want to rule out the possibility that international organizations might speak for the public on at least some occasions. Exploring the conditions under which they might do is a large job which would take me beyond the scope of this paper, but for some preliminary considerations see Wringe 2016a chapters 7 and 8.
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Earlier versions of this paper were given at a workshop on Punishment, Forgiveness and Reconciliation at the MANCEPT workshops in Political Theory in September 2014 and at Forgivness and Reconciliation VIII in Dubrovnik in May 2015.I am grateful to the organisers of those workshops for the opportunity to present my work, to the audiences on those occasions for feedback and to Monica Mookherjee and William von Bulow for encouraging me to present my work in these venues. I'm especially grateful to Paula Satne, both for organising the MANCEPT workshop, and for her encouraging remarks on a number of earlier versions of the paper, without which I would have been lost. I also received valuable written comments from Jack Woods, Sandrine Berges, Katie Stockdale, Fragano Ledgister, David McNaughton, and Janet Brennan Croft. I should also mention the contributions of an anonymous referee for this journal whose comments on a number of ealier versions strongly influenced the content and form of the final version of the paper.
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Wringe, B. Punishment, Forgiveness and Reconciliation. Philosophia 44, 1099–1124 (2016). https://doi.org/10.1007/s11406-016-9773-0