Book Review: Punishment, communication and community

AuthorJohn Gardner
Published date01 October 2002
Date01 October 2002
Subject MatterArticles
Punishment, communication and community, R.A. Duff. Oxford & New York: Oxford
University Press, 2001. xx + 245 pp.
Antony Duff’s work in the 1980s and early 1990s did much to revive scholarly interest
in the moral philosophy of criminal law and criminal justice. In more recent work –
consolidated and harmonized in this new book – he has focused his attention on issues
in political philosophy that bear on the same topics. In particular: what gives the state
the right to be the prosecutor of wrongs and the exactor of punishments? The issue is
pressing for Duff because his way of justifying the prosecution of wrongs relies on the
value of reciprocal talking and listening, and his way of justifying the exacting of punish-
ment relies on the value of sincere remorse and correspondingly expressive penance. In
comparison with, say, friends and families, the state might strike one as peculiarly ill-
equipped to serve these values. If prosecution and punishment are such highly personal
transactions as Duff says they are, why choose such a decidedly impersonal agent as the
state to take charge of them?
One might expect the answer to involve Duff in defending a perfectionist view of the
state, i.e. a view according to which the state is no less concerned with our moral virtues
and moral vices than our friends and families are. But that is not the way Duff goes. In
fact he moves away from the kind of state perfectionism that was hinted at in his earlier
work, by embracing a rather hard-line version of Mill’s ‘harm principle’ that would
entirely exclude the offender’s moral salvation from the goals of the criminal justice
system (p. 90). In place of such perfectionism, Duff devotes his considerable philo-
sophical talents to explaining the conditions under which a non-perfectionist state might
legitimately claim to stand in the right kind of relationship to an alleged wrongdoer that
the alleged wrongdoer should submit to the state’s prosecutorial and punitive authority.
These conditions, as I understand them, fall into three broad categories. First there are
those bearing on the state’s relationship with the political community over which it
presides, in particular its claim to represent that community. Second there are those
connected with the offender’s place in that community, in particular her not being
systematically excluded from it (e.g. by prejudice or extreme poverty). Finally there are
those connected with the prosecutorial and punitive apparatus itself, in particular that
it have a reconciliatory and reintegrative emphasis. In short, and simplifying greatly, the
legitimacy of the state’s criminal-justice role is challenged if (a) the state does not really
represent the community, or if (b) the alleged wrongdoer is excluded from membership
of that community quite apart from her alleged wrongs, or if (c) the criminal justice
system is not orientated towards reaffirming and reinstating her community member-
ship to the extent that it has been undercut by her alleged wrongs.
So rather than having perfectionist goals Duff’s state, qua prosecutor and punisher,
has communitarian goals. It is not a concern with the wrongdoer’s moral virtue but an
orthogonal concern with her continuing membership of the community that makes the
state a fit agent to persuade her to see the error of her ways and to repent – in other
words, fit to engage in Duff-style prosecution and punishment. Contrary to received
wisdom, Duff insists, this communitarian objective is perfectly consistent with a
traditional liberal emphasis on the protection of personal freedom. The community that
the state legitimately represents and cultivates through its criminal justice system is not
just any old community. It is one that regards people as autonomous human beings who
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