Abstract
Modern analytical political philosophy—characterized most notably by the work of John Rawls—has had very little to say about how punishment in particular and criminal law more generally might be justified. This is a puzzling omission, as punishment can be seen as the most serious use of coercive state power and therefore the one in greatest need of philosophical justification. With the idea of filling this gap, this chapter analyzes several major political theories of recent decades and examines how criminal justice might fit into their thought. After discussing the various political theories of libertarianism, liberalism, communitarianism, Marxism, and republicanism, I offer a limited defense of one such theory, Rawls’s “political liberalism,” as offering a suitable way to approach issues of criminal justice and punishment in modern society. More broadly, my chapter invites political philosophers to speak more often and more specifically about how criminal justice fits within their theories.
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Notes
- 1.
Bentham, Hobbes, Kant, and so on, all had substantial discussions of punishment in the context of their political philosophies. To this list we could also add Beccaria, whose theory of punishment and theory of the state were closely connected.
- 2.
This may also work the other way around: our ideas about the necessity of punishment may inform and shape what we think about the role of the state more generally.
- 3.
On the various kinds of punishment, see Husak (2016).
- 4.
For a good framing of this issue, see the early pages of John Simmons’s “Locke and the Right to Punish,” (Simmons 1991).
- 5.
Recent works by Chiao (2019), Tadros (2011), Thorburn (2011), and Duff (2001) may seem to be an exception to this sweeping statement. But Chiao, Tadros, and Duff are philosophers of the criminal law first and foremost, and political philosophers second. The generalization in the text refers to the lack of attention by political philosophers on questions of the criminal law, and not the other way around. Still, to the extent that Chiao et al. meet political philosophers “in the middle,” their emphasis on the “public” and “political” character of the criminal law is a very welcome development. (Again, Braithwaite and Pettit are a good contrast here—they are working out republicanism’s implications for the criminal law; that is, they start with a political theory and then work down from that.) I discuss Duff’s communitarian liberalism in the text infra. More recently, Erin Kelly’s book, The Limits of Blame (2018), approaches the topic in a way that takes political philosophy seriously.
- 6.
An idea canvassed in (Nozick 1975).
- 7.
A related problem—which I cannot consider here—is jurisdictional: what gives the state a right to punish those who might not be citizens of that state?
- 8.
Indeed, this may be the great weakness in the abolitionist argument: the abolitionist considers only rights violations by the state rather than by private parties.
- 9.
The libertarian position is one gloss on this idea of “autonomy”—viewing autonomy as mainly (or only) promoted by protecting so-called negative liberty.
- 10.
- 11.
Here the benefits-and-burdens theory intersects with a familiar strand of retributivism (Morris 1968, p. 478) (“it is just to punish those who have violated the rules and caused the unfair distribution of benefits and burdens”).
- 12.
(Morris1968, pp. 477–478) (defending punishment as necessary to “induce compliance” and “avoid increasing the number of incidences of people taking what they do not deserve”).
- 13.
As I also note in section “Conclusion: Political Liberalism?”, the importance of contractarian thought may not be about what purposes of punishment it endorses or allows, but what purposes it excludes.
- 14.
See (Barry 1973, p. 174) (“Liberalism rests on a vision of life: a Faustian vision. It exalts self-expression, self-mastery and control over the environment, natural and social; the active pursuit of knowledge and the clash of ideas; the acceptance of personal responsibility for the decisions that shape one’s life. For those who cannot take the freedom, it provides alcohol, tranquillizers, wrestling on the television, astrology, psychoanalysis, and so on, endlessly, but it cannot by its nature provide certain kinds of psychological security.”).
- 15.
- 16.
The same applies, modulo some adjustments, to those who believe that punishing criminals is intrinsically good. See Moore (1987).
- 17.
Another Rawlsian-inspired theory that deserves consideration in this context is the one developed by Tommie Shelby. See Shelby (2007).
- 18.
Sandel, Taylor, and MacIntyre, all have, at one point or another, disclaimed the label.
- 19.
Here I mean to be referencing, but not endorsing, the somewhat tendentious grouping of communitarians with some very illiberal figures in history. See Holmes (1993).
- 20.
Importantly, this constraint applies to state action rather than state inaction, although that line is admittedly hard to draw. Still, this may introduce a sort of libertarian bias into political liberalism: one can reasonably reject a welfare policy, but not to the existence of poverty (although one could reasonably reject a state support of an economic system that results in massive poverty).
- 21.
Thanks to Gabe Mendlow, Vincent Chiao, Dan Epps, Alice Ristroph, Raff Donelson, Charlie Lesche, Zac Cogley, and participants at workshops at Northwestern University and at Washington University for comments on an earlier draft.
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Flanders, C. (2019). Political Philosophy and Punishment. In: Alexander, L., Kessler Ferzan, K. (eds) The Palgrave Handbook of Applied Ethics and the Criminal Law. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-22811-8_22
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