Alan Norrie, Law, Ideology and Punishment
| DOI | http://doi.org/10.1111/j.1468-2230.1992.tb00949.x |
| Author | Zenon Bańkowski |
| Date | 01 November 1992 |
| Published date | 01 November 1992 |
The
Modern
Law
Review
REVIEW
ARTICLE
[Vol.
55
Alan
Norrie,
Law, Ideology and Punishment,
Kluwer Academic Publishers,
1991,
222
pp, hb
f44.50.
We have here a scholarly and interesting work. It deals with some philosophical
issues of punishment, notably the relation of retributivist theories to utilitarianism,
but
it
seeks to do something more. For Norrie holds the view that philosophical
theory cannot be studied as something abstracted from social reality. Rather, it must
be
seen as an element of social reality, to
be
seen
as
an expression, in the philosophical
discourse, of ‘real social relations and processes.
’
The processes for Norrie are those of a developing and then ageing capitalist social
order. What he does is invite us to
look
at the rise and fall and rise of the retributivist
theory of punishment through an analysis of Hobbes, Kant, Hegel, the English
idealists and the twentieth-century utilitarians. His claim is that the analysis
of
retributivism is the analysis of the liberal political ideal of punishment and that there
was a historical logic to this process. He further argues that at the heart
of
retributivist
theory there
lie
two central contradictions which cannot be overcome. The history
of retributivism is a failed attempt to overcome them. These contradictions lie at
the heart of our particular society. The first of these is that between an abstract
individualism and concrete individuality, and the second is that between individual
right and social power.
All this stems from the connection between legal and exchange relations
in
capitalist
societies. The development of the juridical individual who was free and equal to
all other individuals
in
a market society was possible only by abstracting that
individual from his concrete reality. At the same time, the ideal of the
Rechtsstuut
as an abstract ahistorical state was something that could only
be
accomplished through
reifying a particular state with particular ways of acting and power constellations.
Both of these idealised forms, because they only partially represent the reality of
the individual and the state, set up tensions with the actual society.
How is this translated into the philosophy of punishment? Retributivism stems
from juridical individualism. Utilitarian and more social views of punishment,
however, seem to depend on the concrete reality of the individual and not some
abstract reification. Norrie shows how in Hobbes, Kant and Hegel this concrete
reality keeps breaking through and undermining the retributivist base of the theory.
Thus, for example, questions of what is to be the just measure of punishment come
to be answered by reference to the concrete reality of the individual and, therefore,
utilitarian considerations.
The attempts at reconciling the first antithesis lead into the second one between
juridical individualism and state power. Because of the notion of a ‘rational reality,’
Hegel can ignore inconvenient actual reality in
his
political philosophy, for the rational
is real and the real is rational. But inconvenient reality still keeps breaking into
his system. The English idealists, Green, Bradley and Bosanquet, took this a stage
further. They realised that the idea of the state being part of the rationalisation of
freedom runs contrary to the facts and
so
they called for intervention to correct
this, to make the real rational, as
it
were. They dispensed with the moral unity of
the individual which gave the theory of punishment an anchor in the individual and
which relegated social defence, deterrence and reform to a peripheral place. In their
hands, the periphery was put at the centre and retributivism was transformed into
a rather mystical ‘revenge’ and totalitarian doctrine. They also opened the way to
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