master’s thesis in legal theory1366152/fulltext01.pdf6 see c. l. ten, crime, guilt and punishment:...

Department of Law

Fall Term 2019

Master’s Thesis in Legal Theory

30 Credits

Duff’s communicative theory of punishment

Author: Kristian Enblom

Supervisor: Joel Samuelsson

Table of Contents

1 Introduction................................................................................................................................ 1

1.1 Background.......................................................................................................................... 1

1.2 The place/concern of the debate ........................................................................................ 2

1.3 The traditional justification of punishment ........................................................................ 3

1.4 Non-consequentialist theories ............................................................................................ 5

1.4.1 Crime and unfair advantage ......................................................................................... 5

1.4.2 The annulment theory .................................................................................................. 6

2 Duff’s communicative theory ..................................................................................................... 8

2.1 Liberal-communitarianism .................................................................................................. 8

2.2 Punishment as communication ......................................................................................... 14

2.2.1 Punishment as deserved censure .............................................................................. 14

2.2.2 Repentance, reform and reconciliation ..................................................................... 18

2.3 An example: combining probation and community service ......................................... 21

2.4 Imprisonment ................................................................................................................ 23

2.5 Liberal-Communitarianism and the communicative theory of punishment .................... 25

2.5.1 Communitarian virtues ............................................................................................... 28

3 Discussion ................................................................................................................................. 29

3.1 Introduction....................................................................................................................... 29

3.2 Duff’s view of the offender ............................................................................................... 32

3.3 Punishment as recognition ................................................................................................ 35

Sources ........................................................................................................................................ 41

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1 Introduction

1.1 Background

How do we justify punishment? In almost all societies there is the institution of

punishment, which is brought about as a consequence for the commitment of certain

acts. It mostly takes the form of imprisonment, probation or monetary fines, but it

always involves some element of unpleasantness or even suffering for the offender.

Typically, punishment is not such that it simply restores the state of affairs to that

before the crime either, as might be the case when someone replaces a thing they

accidentally broke. This is simply not possible for most crimes, for example, an assault

cannot be undone no matter how much the offender pays the victim. Furthermore,

punishment is often thought of as something “extra”, added on top of any material

restoration owed to the victim. If that is the case, what makes punishment justified?

Normally we consider the infliction of suffering to be wrong, and it is not obvious how

the fact of the offender’s previous wrong makes punishment right. It is this question

that so-called theories of punishment try to answer.

The question of what justifies punishment is not a legal one, it is not enough that the

institution of punishment has all the required legal support, the question is what the

whole system rests on - our reasons for it and whether these reasons can be

considered a satisfactory justification for something that would otherwise be

considered unjust. For a system of punishment gives rise to great costs, both human

and economical. It is not enough that the institution exists and has existed for all of

history. (A similar argument might have been given in support of slavery, for example.)

Our answer, if we find that punishment can be justified at all, should also guide the

shaping of our justice system, from the relevant factors in sentencing to the form and

harshness of punishment itself. For example, if we take rehabilitation to be the

primary goal of punishment, we should not impose punishments that are counter-

productive to this aim, perhaps by being too long or too harsh. But on a more punitive

view where the goal of punishment is to give the offender “what he deserves”, harsh

and long prison sentences might be considered appropriate.

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The question of what justifies punishment has seen many different answers through

history. Within the Western philosophical tradition, they are typically divided into two

broad categories, consequentialist theories and non-consequentialist theories.

Consequentialist theories try to justify punishment by the good consequences it is

thought to bring about, like the deterrence of crime, its reformative or rehabilitative

effects and the incapacitation of criminals who might otherwise offend if left

undisturbed. These aspects are all part of a utilitarian justification of punishment. Non-

consequentialist theories differ more among themselves, but they typically tie the

justification of punishment to the wrongdoing itself and not the consequences which

punishment may bring about. For example, that punishment serves as a sort of debt

repayment from the offender to society, or that some kinds of wrongdoing simply

deserves to be punished.

In this paper I will consider the recent and influential theory by Antony Duff called the

communicative theory of punishment, presented in “Punishment, Communication, and

Community”1. I will present my interpretation of Duff’s theory and evaluate it as best I

can. I will argue that within Duff’s framework there is room for another kind of

justification of punishment that Duff does not consider, one that is victim-focused

unlike Duff’s account which is focused on the offender. The purpose of this paper is to

give a critical examination of the theory, and if possible suggest an alternative ground

for the justification of punishment that hasn’t been previously considered. Before I get

to Duff’s theory I will give some more background surrounding the debate around

punishment, as to give a better idea of where Duff’s theory is located in relation to

other theories, and what questions it tries to answer.

1.2 The place/concern of the debate

While punishment might be administered by parents, teachers or umpires, the debate

concerns state punishment within the law, like fines or imprisonment. What’s more,

we are interested in the justification for the institution of punishment, as separate

from a particular act of punishment. A specific act of punishment may be unjustified

even when the institution is.

1 A. Duff, Punishment, Communication, and Community, Oxford: Oxford University Press, 2001

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Since the justification of punishment concerns state punishment, the question is

nested within a political theory of the proper role of the state. Some justifications

won’t be compatible with some other conceptions of society. For example, a

justification of punishment on the ground that it inspires fear and obedience among

citizens might be compatible with a monarchy or a dictatorship, but not a liberal

democratic society. Some of the strongest criticism of consequentialist theories build

on the view that it treats citizens merely as objects to be coerced or manipulated into

obedience.2 For the purpose of this paper I will assume a liberal political theory (as

does Duff), as large parts of the debate hinges on this perspective. While assuming a

certain political perspective limits the applicability of any theory that follows, it is also

necessary. It is not possible to answer what justifies state punishment independently

of an idea of the state.

A theory of punishment also rests upon a conception of crime. While a theory of

punishment tells us why we are justified in punishing certain wrongdoings, it does not

tell us what those wrongdoings are. For that we need an overall moral theory,

combined with a theory of the proper ends of the state. For example, while most in the

Western world would agree that cheating on your partner is wrong, they would also

agree that it is outside the proper interest of the state and that it has no business

policing such matters. Not so with murder, which is both considered wrong and within

the interest of the state, i.e. a proper crime. This background theory is largely separate

from the one of punishment however, and different moral theories ought for the most

part be interchangeable with respect to a theory of punishment.

1.3 The traditional justification of punishment

Punishment is, and has been, thought of as justified primarily on utilitarian grounds –

Not just by philosophers but politicians and law-makers as well.3 The positive effects of

punishment are thought to be the rehabilitation of the offender, the deterrent effect

of punishment on crime and the incapacitation of the offender. As long as the net

benefits of these effects outweigh the suffering caused by punishment it is justified on

2 A. Duff and D. Garland, A Reader on Punishment, Oxford: Oxford Univ. Press, 1994, p. 10-12. 3 A. Duff and D. Garland, A Reader on Punishment, Oxford: Oxford Univ. Press, 1994, p. 8-12, 16-20.

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utilitarian grounds. One of the biggest objections to the utilitarian theory is that it

would justify the imprisonment of innocent people. A famous example runs as

follows4; A man in a town consisting of two segregated social groups commits a crime

towards a member of the other group. Because of the tension between these groups

violent riots are likely to break out unless the criminal is apprehended, however, he is

nowhere to be found. In this situation it would, on utilitarian grounds, be justified for

the police to frame and punish an innocent man for the crime as a means of

preventing the riots from happening. Variations of this example exist, and they all

purport to show that utilitarianism would justify the punishment of people who are

not guilty (in certain cases). The argument is that this is obviously wrong, hence the

utilitarian theory can’t be right. One reply to this problem is that it lies in the very

definition of “punishment” that it can only be dealt to a guilty person. An innocent

person cannot properly be said to be “punished” for something he or she did not

commit.5 This does not solve the problem however, even if we define “punishment” as

something that can only be administered to a guilty person the objection to the

utilitarian theory still stands. It would still justify the administration of punishment-like

treatment of innocent persons, only we would have to call it something else. Since the

problem is a moral one and not semantic, nothing is solved by restricting the definition

of “punishment” to only be applicable to guilty people.

Another reply to the objection that utilitarianism supports the punishment of innocent

people is to question the validity, and relevance, of examples like the one above.

Utilitarians can argue that, in the real world, punishing innocent people produce worse

results than only punishing guilty people. These unlikely scenarios are irrelevant to the

justification of punishment in our actual society, since they virtually never occur.6 But

such a reply seems to miss the point of positing these far-fetched thought

experiments. By imagining these scenarios, we can better judge whether our supposed

principles hold in our current situation as well. The question at hand is, on what

grounds do we justify punishment? For the utilitarian the only moral principle is to

4 From H. J. McCloskey, A non‐utilitarian approach to punishment, Inquiry, 8:1-4, 1965, p. 249-263. 5 See A. Quinton, “On Punishment”, Analysis, 14(6), 1964, p. 133-142. 6 See C. L. Ten, Crime, Guilt and Punishment: A Philosophical Introduction, Oxford: Clarendon, 1987, p. 18-32 for a discussion on the relevance of unlikely thought-experiments.

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produce the best outcomes. Even if it is almost always negative to punish innocent

people such a principle is secondary, or derivative, from the first principle. There will

always be possible situations where the punishment of someone innocent produces

positive effects (even if they are an exception), and in these situations utilitarians

would have to think that it is right. If in some situations utilitarianism recommends us

to punish innocent people, and we judge this to be unacceptable, utilitarianism can’t

be right. It seems as if a notion of guilt is fundamental as to who may be justifiably

punished, and that is a distinctly non-consequentialist principle.

1.4 Non-consequentialist theories

Non-consequentialist theories, also called retributive theories, are more numerous and

varied than the consequentialist ones. But they all see punishment as an inherently

appropriate response to criminal wrongdoing. Often they involve the notion of “just

desert”, that is, that punishment is deserved by the criminal simply because of his or

her wrongdoing. The difficulty lies in explaining that connection. Here I will briefly

present two retributive theories, for a more thorough overview and critique see Ted

Honderich’s book “Punishment, the supposed justifications revisited”.7

1.4.1 Crime and unfair advantage

Several writers have proposed a theory of punishment as a means of removing an

unfair advantage gained by the criminal.8 The law confers benefits to all members of

society by protecting certain areas of life. These benefits are only possible because

law-abiding citizens choose to abstain from invading these areas. By breaking the law

the criminal neglects to do his or her part in upholding this social contract, while

continuing to enjoy the benefits that come from it. Thus, the criminal gains an unfair

advantage over the law-abiding citizen, one that comes at their expense. Punishment,

it is suggested, removes this unfair advantage by imposing a burden on the offender

thus canceling out the advantage gained by the offender.

7 T. Honderich, Punishment: The Supposed Justifications Revisited, rev. ed., London: Pluto Press, 2006 8 See J. Murphy, “Marxism and Retribution”, Philosophy & Public Affairs, vol. 2, no. 3, 1973, p. 217–243. and H. Morris, “Persons and Punishment”, The Monist, vol. 52, no. 4, 1968, p. 475–501.

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While this theory provides a non-consequentialist reason for punishment it does not

explain why punishment should be in the form of fines or imprisonment – all it

requires is that some sort of disadvantage be imposed on the offender. Another

potential problem lies in the way the theory characterizes the punishment-deserving

element in breaking the law, an objection Murphy himself (being an initial advocate of

the unfair-advantage theory) finds convincing.9 While it might seem correct for tax-

evasion for example, the wrong in an assault does not lie in the offender taking an

unfair advantage over all non-assaulting citizens but in the assault itself. The theory

establishes a connection between wrongdoing and just punishment, but it does not

seem to give a complete picture of why some wrongs deserve punishment (even if it

might give a partial answer).

1.4.2 The annulment theory

Another interesting theory comes from B. Cooper, who provides an interpretation of

Hegel’s justification of punishment.10 According to Hegel punishment “annuls crime”.

On the face of it this seems wrong, punishment does not annul crime in the sense that

it makes the crime undone – nothing could undo a murder for example. But Cooper

argues that we should understand the annulment claim in a different way. According

to Hegel a criminal act constitutes an implicit denial of the right which the criminal

code in question establishes, for example the right to one’s life. To leave the crime

unpunished would be a tacit admittance that this denial was in fact correct, while

punishment asserts that the right exists – it annuls the denial of the right.

This theory rests on the view that legal rights are so-called performatees, that is, their

existence rests on the actions of people. For example, the existence of a social

convention is made by the fact that people follow said convention. If a substantial

percentage of people didn’t follow it the convention could not be said to exist in the

first place. Similarly, Cooper argues that a “right” cannot be said to exist in any real

way unless those who break them are apprehended and punished. That they exist “on

9 J. Murphy, “Legal Moralism and Retribution Revisited”, Criminal Law and Philosophy, vol. 1, no. 1, 2007, p. 14. 10 D. Cooper, “Hegel’s Theory of Punishment”, in Z. A. Pelcynski (ed), Hegel’s Political Philosophy: Problems and Perspectives, Cambridge: Cambridge University Press, 1971

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paper” is not enough, they must be forcibly upheld. The theory is somewhat limited in

scope since many laws don’t take the form of conferring rights to some individual or

entity (for example laws against speeding). But one could drop the talk of “rights” to

broaden the applicability of the theory further. Instead, one could argue that legal

rules in general need some form of sanction to exist, for otherwise they would be

mere guidelines that people could break at their own discretion. A rule without

sanction is like having no rule at all. The result of the theory is to tie the justification of

punishment to the justification of the legal rule. If the rule is justified then so is

punishment, for the rule could not exist without it.

One objection to this theory is that it does not follow from it that punishment as we

know it is justified, only that some sort of negative consequence is imposed on the

criminal. Why, for example, could it not take the form of a public denunciation made

by the courts? Cooper replies by making some concession to the utilitarian theory,

arguing that such responses to crime would not be as effective in deterring criminals.11

It seems the theory needs to make some sort of reference to effectiveness, or

alternatively, to the severity of the sanction. For an ineffective or light sanction does

little more to establish a rule than no sanction at all.

Another critique would be that Cooper avoids answering the actual question. Even if

he succeeds in tying the justification of punishment to the justification of legal rules,

we are left wondering about the justification of legal rules. On the face of it we might

think it’s obvious that a rule against murder is justified. But mustn’t we ask the same

sort of questions as before? That is, on what grounds are legal rules (or rights) justified

now that they necessarily involve punishment? Are they justified even if they do not

produce any positive effects and involve the infliction of suffering on offenders, on

what grounds? In a way we are back at square one.

Both the theory of unfair advantage and Coopers theory that punishment establishes

rights contains elements that can be found in Duff’s communicative theory. From the

theory of unfair advantage the idea that punishment can serve as a sort of debt

repayment by the offender, and from Cooper the importance of the actions of the

11 D. Cooper, “Hegel’s Theory of Punishment”, p. 166-167.

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larger community in responding to crime. Regarding its classification, Duff’s theory is

located in the non-consequentialist camp, even though it ties the justification of

punishment to some future goals (and not solely on the past wrong).

2 Duff’s communicative theory

2.1 Liberal-communitarianism

Duff begins his account with some political theory, something he thinks is lacking in

many other theories of punishment. The relevance of a political theory lies in the

constraints it sets on the kind of justification we can give for punishment. As we’ve

seen, some justifications are not compatible with a modern liberal democracy, the

political system which Duff assumes for his theory. To properly understand Duff and

where he is coming from, we need some understanding of the political theory as well.

Duff calls himself a liberal-communitarian, which he thinks of as a sort of hybrid

between liberalism and communitarianism.12 Liberalism, like any political theory, sets

out to legitimize the state and to define its proper ends, and the rights and obligations

people have between themselves and between the state. It aims to answer, for

example, why we as citizens of a society are obliged to follow its laws even though we

have never explicitly agreed to them. It also aims to answer if, why and to what extent

the state can use force against its citizens, or lay claim to their time and energy (for

example through political or military service). Liberal theorizing often begins with the

idea of the social contract, which is used to ground the legitimacy of the theory. We

begin by imagining individuals in a sort of “pre-social” state, as individuals who don’t

live in a society or associate with any group. Realizing the benefits that would come

from co-operating, they would decide that banding together was in their best interest.

But to create a community they would need to agree to some set of rules regarding

their rights and obligations towards each other, and how the community should be

structured. The social contract is meant to represent the agreement which these

individuals would reach. The social contract is not thought of as an actual contract

12 A. Duff, Punishment, Communication, and Community, p. 35.

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which citizens enter into upon birth, but a hypothetical contract (although some would

claim it is implicitly agreed to). People would consent to it under the conditions

imagined, and this hypothetical agreement grounds the legitimacy and claim of the

liberal state over its citizens.

So what would these people decide on? Duff identifies a couple of values and

principles which are central to any liberal account.

“Central to any version of liberalism is an insistence on the moral standing and rights

of individual agents: as agents who are, or have the potential to be, autonomous—

determining their own actions in the light of their own self determined ends and

conceptions of the good; as agents who should be left free to determine those ends,

goods, and actions—who should be allowed and perhaps helped to develop and to

exercise that capacity for autonomy; as agents who should be allowed an extensive

realm of privacy, of freedom from the uninvited interference of other people or the

state, in which to exercise that freedom and autonomy; and as agents who should not

simply be sacrificed for some larger social good—whose individual rights "trump" the

consequentialist claims of social goods.”13

These central values, autonomy, freedom and privacy (and the principle of the

individual right over the social good) all set some limits on the justification a state

could give to punishment, and the interest it could take in its citizens lives. To punish

criminals as a way of deterring crime is to use them “as means” for the social good of

crime prevention. Neither should the state seek to “reform” criminals as that is to treat

them as mere objects to be remolded, not as autonomous agents who are free to

make up their own mind about what is right or wrong. This does not mean that all

attempts by the state or the community to influence an offender’s conduct is

illegitimate, as we will see later. Rather, this objection targets the kind of forceful

reform which is often implied in consequentialist theories, where criminals are

something to be reformed rather than being given the opportunity for reform.

Another objection to justifying punishment by reform stems from the right to privacy,

and this objection will also be relevant against Duff’s own theory. In a liberal society


10

there will be some areas of life that count as private, areas which the state should not

concern itself with. Such areas are, for example, people’s sexual orientation, religious

or political views or how they live their lives (as long as they don’t harm or threaten

other citizens rights). But it also covers people’s moral character. The state should not

inquire into people’s moral virtues, or work to change them. It is an area where the

state has no legitimate authority or interest. That this area is private rests not just on

the contention that it should be private, but the stronger point that the state lacks the

appropriate standing to make someone answer for their supposed moral shortcoming.

As an analogy, suppose someone comes up to me and chides me for not donating

enough to charity. This person might make a compelling argument for why I should

donate to charity, even that it would be immoral for me not to do so. Still, I have no

obligation to explain or justify my behavior to this person. It is simply not their

business, and I don’t answer to them in this regard. So too with the state. Someone

can be called to answer for such actions that harm or threaten to harm other people,

but not for being a bad person. The problem with reform, from a liberal perspective, is

that it does involve such an interest in people’s moral character. It aims to “make its

citizens morally better”.14 This objection is also one that is relevant for Duff’s theory of

punishment, and something I will return to in section 2.5.

Much can be said about the idea of the social contract, and the values that liberals

claim such a contract would contain – Whether these really are the values that “pre-

social” individuals would agree to, and what exactly they mean. They are by no means

clear or uncontroversial, and we can find plenty of exceptions to them in our societies.

It is also important to keep in mind that they are ideals, not descriptions or our current

societies, and that they are part of liberal political theory which is not the only political

theory out there. Nonetheless Duff subscribes to these values and takes these

objections seriously. But he is also what is called a “communitarian”, a political theory

which pose some other perspectives on the state and its limits and obligations.

Communitarianism gives rise to some further concerns or objections where liberalism

says nothing, and pose some other duties for the community.

14 A. Duff, Punishment, Communication, and Community, p. 36-37.

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It is hard to compare liberalism with communitarianism, but a good starting point is

perhaps the difference in their grounding of the community and political obligation.

Whereas liberalism grounds membership in a community through the hypothetical

consent of its members, communitarianism sees membership more as a given.

Membership in a community arises simply by being born in to it, along with the rights

and obligations that come with. As an analogy we could think of the family. Quite

plausibly, being a member in a family involves some obligations towards one’s family

members, which arise simply by being born in to it (or by having children oneself). For

example, it seems we are obliged to provide food and shelter for our children, along

with any other material needs, and to sacrifice some of our own time and energy in

their favor. It would be wrong to think that these family obligations arise through

something like a “family contract”, something that I could distance myself from and be

bound to only insofar as it is something which I would agree to. We are not free to give

up these obligations in this way, it seems we are bound by them in virtue of the special

kind of relationship alone. According to the communitarian the same holds to some

extent for the larger community we are born in to. The rights and obligations which a

community confers to its members, and the community itself, is a given between its

members and not based on something like a contract between them.

Why does this difference between liberalism and communitarianism matter?

According to Duff the difference in grounding of the political theory leads to a

difference in the kind of questions liberals and communitarians ask regarding our

normative theorizing, and a difference in which areas or aspects of society these

theories focus on.15

The liberal perspective starts with individuals and asks what they, as individuals,

should agree upon. Liberals have to start at this point since, on this view, a society is

only legitimate insofar as it begins with a sort of contractual consent of otherwise free

individuals. The communitarian however, thinks that we are already part of the

community that we happen to be born in to. The normative question we should ask is

not how we as individuals should enter into community, but how we as a community


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should live. This leads to a difference in the sort of appeals and considerations

communitarians make, where community enters as a point of consideration. Most

importantly for Duff, considerations surrounding social inclusion and exclusion: A

community should (has a duty to) treat all its members as full members of the

community – it should strive to be inclusive and to avoid being exclusive.

What do these terms mean? Duff lists for common areas of focus for communitarians

where the community can succeed or fail in being inclusive. These are political,

material, normative and linguistic.16

Political inclusion or exclusion refers to the degree which people can take part in the

community’s decision-making process. It can include such things as voting rights, or if

the community’s political posts and positions are open to all. In a democratic society

all citizens should have at least the possibility to make their voices heard and to

influence the rules or laws that are passed. A community excludes its members

politically insofar as they are excluded from the decision-making process, either on

purpose or effectively.

Duff defines material inclusion as “the extent to which people can share in the material

resources and benefits available within the community”.17 It refers not only to physical

goods but things like education, health care and employment. There is a problem here

in defining what these goods being shared entails, whether they should be provided to

all or if it is enough that everyone has the opportunity to obtain them. Regardless,

people are excluded from these material goods if they have no fair chance of obtaining

them.

Normative inclusion refers to the extent which we treat people as if the community’s

values apply to them, and as if the community’s values were their own. It means to

extend to everyone the rights and respect which flows from those values. But it also

means to treat everyone as if the obligations which come from those values are

binding on them.

16 A. Duff, Punishment, Communication, and Community, p. 75. 17 A. Duff, Punishment, Communication, and Community, p. 76.

13

The last area of community is linguistic, and it serves as a prerequisite for political and

normative community. There is linguistic inclusion in the sense of there being a

common language between all the members in the community. To the extent that

some people don’t speak this language, they are excluded not just linguistically but

often politically as well. Members are also excluded from the normative community if

they cannot speak or understand the language where the normative discourse takes

place. It also seems like Duff understand “sharing a language” in a more figurative

sense, for he gives an example of linguistic exclusion in the criminal trial as it is today.

For most offenders “their trial is an alien process that they cannot understand and in

which they can play no real part and insofar as, given the content of their punishment

and the context and manner of its imposition, the language in which they can

understand it as addressing them is not that of legitimate authority but that of brute

power”.18

While the political theory which Duff presents is communitarian, it is nonetheless

liberal-communitarian. It involves a liberal answer to the communitarian question of

how we as a community should live. This entails an emphasis on such values as privacy,

autonomy and freedom, and of individual rights which are not to be sacrificed for

some greater good. But the added communitarian perspective presents some

additional challenges for an account of just punishment. A big problem according to

Duff lies in the way punishment excludes people from the community. Some theories

of punishment are exclusionary by their nature, for example, the justification of

punishment by its deterrent effect. Such theories portray offenders as people outside

the normative community, as people who need additional reasons to refrain from

crime apart from its being intrinsically wrong according to the community’s values.

(Though some would argue that this is the way the state should address potential

lawbreakers.)19 The way punishment is used today is also often exclusionary. It is not

uncommon that those serving prison sentences lose their right to vote, for example in

the UK or the US.20 Punishment is also often stigmatizing, those who have been

18 A. Duff, Punishment, Communication, and Community, p. 77. 19 R.J. Lipkin, “Punishment, Penance and Respect for Autonomy”, Social Theory and Practice, vol. 14, no. 1, 1988, p. 87-104. 20 A. Duff, Punishment, Communication, and Community, p. 77.

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sentenced find it harder to find employment or housing, excluding them materially as

well.

A central question for Duff is, “can a system of punishment still treat those who are

punished as full members of the political community?”21 That is, can punishment be

inclusive, and not something which serves to exclude those who are subjected to it

from society? Much of Duff’s account of punishment will be devoted to showing that it

can. In the section that follows I present Duff’s account, followed by a look at how it

deals with the requirements presented in this chapter.

2.2 Punishment as communication

Duff’s basic contention is that punishment should be understood, and justified, as

communicating to the offender the censure his crime deserves, with the aim of

“repentance, reform and reconciliation”.22 This account, I think, contains two parts.

First, punishment as deserved censure, and second, the goals of repentance reform

and reconciliation which are to be achieved through that censure. I will start by

elaborating on these two ideas, and then see how Duff relates them to the proper role

of the state, the liberal concerns previously discussed, and the inclusionary demands

which communitarians place on a system of punishment.

2.2.1 Punishment as deserved censure

One of the problems with retributive theories of punishment was how to explain the

connection between what an offender deserves and punishment. Simply saying that

wrongdoers deserve to suffer is not enough. Neither do all possible explanations seem

plausible even if they do establish a link between wrongdoing and deserved

punishment. An example of such a theory was the idea that punishment removes an

unfair advantage held by the offender (see section 1.4.1).

Duff thinks that the best way to make sense of the desert claim is by thinking of

punishment as a way of communicating censure. To censure someone is to express

disapproval, criticism or otherwise fault them for the conduct. If there is one thing


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wrongdoers deserve it is to be criticized for their actions. Duff thinks, this point is not

mysterious like some other theories’ connection between wrongdoing and

punishment.23 Part of the reason why wrongdoers deserve censure has to do with

meaning what we say: If we declare certain conduct to be wrong we are committed to

abstaining from such conduct ourselves. If we nonetheless engage in it our declaration

comes off as insincere or dishonest. But, we are also committed to criticizing others

who engage in it. Not doing so would make our declaration insincere in a similar way.

For example, say that we as a community declare assault to be wrong. If someone

assaults someone else we should censure the assailant for his behavior. Not doing so

would signal either that we don’t really take the assault to be wrong, or that the victim

lacks the worth or standing of other members of society (and that therefore the

assault was not wrong). To take a wrong seriously involves at the very least some

negative reaction towards the offender. Duff thinks that this perspective can be

applied to the criminal law as well, as a kind of collective declaration of wrongs. To be

serious about these declarations of wrongful actions necessitates some censure by

society towards those who commit them.24

It is in this part of Duff’s theory that we find the similarity with Cooper (section 1.4.2).

Both theories place an importance on the response of the community towards crime.

For Cooper, the response (punishment) establishes the “right” which the crime

implicitly denies. For Duff the response makes up the censure which offenders

deserve. I understand Duff as making a sort of appeal to intuition, or common sense,

when he argues that wrongdoers deserve censure, an intuition he tries to strengthen

by looking at the act of declaring something as wrong and meaning it. He thinks, surely

we can agree that someone who has done something which we take to be wrong

deserves to be censured for it. Thinking that those who do wrong should be censured

seems to be a part of thinking it wrong in the first place. At the same time, Duff

presents no purely logical or factual reasons why we should censure those who do

wrong – and there probably aren’t any either. If the contention that wrongdoers

deserve censure rests on intuition, what makes it a better foundation for a theory of


16

punishment than the simple intuition that wrongdoers deserve to suffer? This is an

intuition which many people have, yet most writers on punishment find it lacking.

Duff’s answer seems to be: more intuition. He writes “Second, it is not puzzling—in the

way that critics of retributivism find the idea of penal desert puzzling—that offenders

deserve censure for their criminal wrongdoings.”25

Is this a weakness in Duff’s theory? I think, it doesn’t need to be. A lot of our moral

though seemingly rests on intuition about what is proper, without the possibility to

ground it in anything more solid. What makes Duff’s intuition better might simply be

that it appears more sensible, and less questionable, to most people.

One reason why it might be easier to accept Duff’s initial idea is that it is not yet very

strong. All he has argued for so far is that wrongdoers deserve censure. But censure is

not the same as punishment. One kind of censure is simple verbal criticism, or a

reprimand. Duff’s next step is to show why the deserved censure should take the form

of punishment (or what he sometimes calls “penal hard treatment”.

As a first step, punishment can function as a form of censure: “Given an appropriate

set of conventions and a shared understanding of those conventions, a term of

imprisonment or compulsory community service, or a fine, can communicate to those

on whom it is imposed (and to others) an authoritative censure or condemnation of

the crime for which it is imposed.”26 But why should it be the preferred method of

censure, as opposed to something else?

One answer is briefly discussed by Duff, and then discarded.27 It is the idea that only

punishment could serve as the appropriate censure for crime. On this line of thought,

only punishment is severe enough, in that only the censure it communicates is severe

enough. This would justify punishment solely as deserved censure, on the ground that

no other censure would communicate the level of censure which is deserved. Duff has

two problems with this proposal. First, that we must explain why only punishment

could adequately communicate the censure which offenders deserve, an idea which

25 A. Duff, Punishment, Communication, and Community, p. 27. 26 A. Duff, Punishment, Communication, and Community, p. 29. 27 A. Duff, Punishment, Communication, and Community, p. 30.

17

Duff is skeptical about. Second, why it should be the state’s duty or task to administer

it.

I think this is a part of Duff’s theory which is a bit unclear. While he discards the idea

that punishment is to be justified solely as deserved censure, he seemingly endorses

this view in other parts of his book, or at least comes close to it. For example, he

writes:

“a principle of proportionality between the seriousness of the crime and the severity of

the punishment is intrinsic to my account. If punishment is to communicate the

censure that the offender deserves for the crime, it must communicate the

appropriate seriousness or degree of censure. It must neither exaggerate nor

depreciate the seriousness of the crime. But the seriousness or degree of censure is

expressed by the severity of the punishment. A harsher sentence portrays the crime as

more serious, a lighter sentence portrays it as less serious”28

At another point he writes “We must determine not just that an offender deserves

censure but how severe that censure should be: the more serious the crime, the more

severe the deserved censure. That censure is communicated by penal hard treatment,

and severity is a dimension of penal hard treatment as it is of censure. Thus the

severity of the penal hard treatment will communicate the severity of the censure: the

more severe the hard treatment, the more severe the censure it communicates.”29

While Duff does not write that only punishment could communicate the appropriate

censure, he does draw a connection between the severity of punishment and the level

of censure – harsher punishment equals stronger censure. Once we allow that such a

material dimension plays into the level of censure it is hard to see how anything but

punishment could reach this level. It seems very unlikely that, for example, a symbolic

or mere verbal censure could ever match the censure communicated by a long prison

sentence. If wrongdoers deserve censure, and the severity of that deserved censure

can only be reached by punishment, it seems that punishment could be justified solely

as deserved censure.


18

Either way, this is not how Duff wants to justify punishment as the preferred method

of censure. Duff argues that punishment should be the preferred way of

communicating deserved censure because it serves the further aims of repentance,

reform and reconciliation. These aims are not a separate justification of punishment,

on top of it constituting deserved censure. Rather, censure has these aims intrinsically,

and punishment best fulfills it.30 (To put it in everyday terms, censure and the aims of

repentance, reform and reconciliation are two sides of the same coin.) Thus

“Punishment should be understood, justified, and administered as a mode of moral

communication with offenders that seeks to persuade them to repent their crimes, to

reform themselves, and to reconcile themselves through punishment with those they

have wronged.”31

2.2.2 Repentance, reform and reconciliation

Repentance

Repentance is the act of regret, remorse or self-reproach for something one has

previously done. It is to disown an act, wishing one had not done it. Duff argues that

intrinsic in censuring others lie the aim of inducing repentance. “When we censure

others for their wrongdoing, our intention or hope is that they will accept that censure

as justified. But to accept censure as justified is to recognize and accept that I did

wrong, the wrong for which I am censured; and an authentic recognition that I did

wrong must bring with it repentance of that wrong.”32 Why is punishment the

appropriate way to induce repentance, instead of other forms of censure? Duff gives a

couple of reasons. First, we often take the matter or remorse too lightly, we might say

that we did wrong or acknowledge it superficially. But, at least for serious wrongs, this

is not enough. Proper repentance requires that we focus on our wrong for a longer

period of time, and with the right intensity. Punishment can best facilitate this, partly

because of the time requirements involved, but also because it can bring home to the

offender the seriousness of his offense – since the strength of censure follows the

30 A. Duff, Punishment, Communication, and Community, p. 80. 31 A. Duff, Punishment, Communication, and Community, p. 115-116. 32 A. Duff, Punishment, Communication, and Community, p. 107.

19

strength of the punishment, the punishment communicates to the offender the

seriousness of his wrong.

Why should we strive for repentance? Duff’s answer is that repentance is the proper

response towards one’s own wrongdoing. Genuine remorse is also painful, thus

repentance constitutes the suffering which offenders deserve (a notion other

retributive theories struggled to explain). Repentance is also a precondition for reform,

the second aim of censure.

Reform

Proper repentance must also invoke a commitment to self-reform. In regretting a

previous act we also aim to not do it again. Insofar as punishment is the proper way of

inducing repentance, it also best serves the aim of motivating offenders to self-

reform.33

How can Duff list “reform” as one of the justifying aims of punishment when this was

one of the more criticized justifications in consequentialist theories? Not only is there

little empirical support for the notion that punishment helps reform offenders, it was

also criticized for treating offenders as objects to be remodeled – a view Duff himself

argues is incompatible with a liberal society.

However, there is a big difference between the sort of reform Duff argues for, and the

consequentialist aim of reform. For Duff, what partly justifies punishment as the

appropriate method of censure is its supposed ability to motivate offenders to self-

reform. What’s important is that this commitment comes from within, as something

the offender himself sees to be necessary. For the consequentialist, reform is an end to

be achieved by the most efficient means available. Whether or not it comes about

voluntarily or through some coercive method is unimportant. This raises the question

whether a commitment to self-reform induced through punishment really is voluntary.

This is part of the larger question of how Duff’s theory relates to the proper role of the

state, and the limits put on the methods the state might utilize to seek its goals. (See


20

section 2.5 for the discussion on Duff’s theory and how it relates to the proper role of

the state.)

One reply to the objection that punishment is ineffective as a means of inducing

reform will run along similar lines; what justifies punishment is not that it is an

effective method of reforming offenders, but that it aims at motivating offenders to

self-reform (through the repentance of their crimes). This is true whether or not it

actually succeeds in doing so. Of course, this reply seems somewhat disingenuous. If

punishment motivated offenders to self-reform we would expect it to be somewhat

effective, if it is not effective it seems it cannot be true that it motivates offenders to

self-reform either. If this is the case, does it matter that punishment nonetheless aims

at inducing self-reform? The same question can be asked of the aim of repentance, can

this aim function as a justification of punishment even if it doesn’t succeed? Duff’s

answer is no, but on a general level. These aims can still justify punishment in specific

cases, even if they are likely to fail. He writes: “Punishment is justified as […]

persuading offenders to repent their crimes. Such a justification cannot be

independent of the extent to which that attempt is likely to succeed. First, however,

success as thus conceived is not all that matters. We owe it to victims and to offenders

to make the attempt to secure repentance, reform, and reconciliation. But that

attempt is worth making even if it is often likely to fail, since in making it we show that

we do take crime seriously as a public wrong and address the offender as someone

who is not beyond redemption”34

What justifies punishment then, is not only that it constitutes deserved censure which

achieves the goals of repentance, reform and reconciliation, but that the state owes it

to its citizens to try and secure these goods even when it is likely to fail. It owes them

this because in trying, the state shows that it takes crimes seriously and treats the

offender as someone who could still redeem himself.

Reconciliation

The third aim of punishment is reconciliation. In cases of wrongdoing some apology by

the wrongdoer is necessary if the parties are to reconcile. But, Duff argues, in serious


21

cases of wrongdoing a “mere verbal apology is not enough”.35 The apology needs some

more forceful, material expression, and the undertaking of a burdensome punishment

can serve as that expression. Some kinds of punishments are well suited for this task.

For example, community service orders that involve some reparative work directly

related to the crime (say, a vandal having to restore what he or she broke). By making

up for the damage done the punishment can be seen as a sort of apology the offender

makes in undertaking it. Duff argues, any punishment can be undertaken as an apology

if, through it, the offender expresses his remorse of what he has done.

Duff meets two possible objections to the idea that punishment can serve to express

an apology by the offender for what he or she has done. First, an apology is something

we have to make for ourselves if it is to be sincere. But punishments are simply

imposed on an offender regardless of his thoughts or feelings about his crime, how

could it serve as an apology then? Duff’s answer is that we should view punishment as

a sort of formal apology, where what matters is that the offender partakes in the

apologetic “ritual”, not his sincerity.36

This answer ties together with the second objection, that to require an offender to

apologize for his offence is inconsistent with liberal values. To require an offender to

apologize for his wrongdoing is to force him to portray his own actions as wrong or

morally blameworthy. But such a judgment must be left up to the offender if we are to

respect him as an autonomous agent. Duff’s reply is that, since the apology takes the

form of a formalized ritual, we are not requiring the offender to mean it, only to

participate.37 (Duff is not wholly convinced by this answer, but thinks that we can deal

with any remaining doubt by giving offenders the opportunity to clarify that they are

not undertaking their punishment as an apology.)

2.3 An example: combining probation and community service

The idea of punishment communicating deserved censure, with the aim of repentance,

reform and reconciliation, can perhaps be made clearer with an example. Duff takes

“combination orders” consisting of probation and community service as one of the

35 A. Duff, Punishment, Communication, and Community, p. 109. 36 A. Duff, Punishment, Communication, and Community, p. 110. 37 A. Duff, Punishment, Communication, and Community, p. 110.

22

more fitting forms of communicative punishment. While on probation an offender is

subjected to some level of surveillance. He has to meet with a probation officer who’s

job it is to make sure that the offender stops his criminal conduct and follows other

possible conditions in the probation order. This surveillance communicates to the

offender that he cannot be trusted in the eyes of the community. Other more specific

requirements can be part of a probation order. As an example, Duff takes a football

hooligan who is barred from attending matches as a part of his sentence.38 Another

example is someone who gets into fights while drunk, and who therefor is forbidden

from going to places where alcohol is served. These sorts of restrictions can be tailored

to the specific crime. Duff argues, they should be specific. There should be a clear

connection between the restriction and the crime, if it is to communicate to the

offender just what he has done wrong and in what way the community cannot trust

him.

Another possible component of a probation order is a requirement to attend some

program aimed at correcting the harmful conduct. Duff mentions the CHANGE

program in Scotland, a program for men who have been convicted of domestic abuse.

Such programs, Duff argues, should not be viewed as mere treatment or therapy but

as punishment.39 They aim at making these offenders understand what they have

done, and how it could happen. Such programs are necessarily unpleasant, they try to

confront the offender with what he has done, and to induce a change in his behavior.

The community service order can likewise be tailored so that there’s a clear

connection between the kind of work the offender has to undertake and his offence.

As an example, Duff takes a vandal who has to repair the damage he has done (or

other similar damage caused by others).

The examples above helps illustrate what Duff has in mind when he writes that

punishment should be communicative. Duff is not out to protect the status quo by

arguing that our current penal practices can be understood (and justified) in a

communicative light. In fact, he is very critical of how punishment is used in todays’

societies, and the form it takes (although his focus lie on the U.K. and the U.S.). More


23

specifically, he is critical of the way imprisonment is used both in its extent and its

execution. Good communicative punishment establishes a connection between the

punishment and the crime – the football hooligan is barred from attending more

matches, the vandal has to repair the damage he has caused. This connection helps to

communicate what the offender is being punished for, and also in explaining the

notion that this censure is deserved. We might have a hard time explaining why an

offender simply deserves to suffer, but not why a football hooligan deserves to be

barred from more matches (even if he suffers when he is thus barred).

The connection between punishment and offence also make the goals of repentance,

reform and reconciliation more plausible. Duff argued for punishment over other ways

of communicating censure because punishment could serve these aims more

effectively. The best way to induce repentance was to focus the offenders’ attention to

his crime. It seems plausible that a communicative punishment could do this. For

example, the offender who has to attend a program for domestic abuse is likely

reminded of what he has done. So too with someone who is barred from entering

places where he has caused trouble, or someone who has to spend time repairing

what he has damaged. Confronting the offender with the damage he has done is also

likely to help motivate him to self-reform, insofar as it helps him understand the harm

he has caused. As for reconciliation, if the punishment is to serve as an apology by the

offender it can better do so by tying together with the crime. An apology carries

greater force if it is in some way reparative, either literally (as in fixing something that

was broken) or figuratively (as perhaps the attendance of some program).

2.4 Imprisonment

So far I think Duff has managed to offer an attractive picture of what justifies

punishment. But he has done this, in part, by focusing on some specific kinds of

punishment (and specific kinds of crimes). The kind of punishment that Duff has

covered so far are typically thought of as lighter than, for example, prison sentences.

They also seem well-suited for those crimes that we think of as being less serious. But

what of crimes like murder, rape or serous assault? Or those offenders we take to pose

an ongoing danger to others? It is far from clear that we could employ probation or

community service orders in response to these crimes, or that it would be appropriate.

24

They are typically punished by imprisonment, a mode of punishment which Duff hasn’t

covered so far. Prison, on the other hand, does not make for good communicative

punishment. Even if the prisoner is likely to know what he ended up in prison for, this

mode of punishment does not serve as a reminder of the crime the same way

probation or community service can do. It does not “confront” the criminal with the

damage he has done. It also offers little room for the offender to be an active

participant in his punishment. Imprisonment does not require that the offender do

something, it can simply be inflicted on him. This makes it harder to see the prison

sentence as a form of apology by the offender, since he does not undertake to do

something that could be interpreted as such. A prison sentence can of course include

similar programs and work as probation and community service, but this is separate

from the imprisonment itself – they can be appropriate communicative punishments,

but they don’t make the imprisonment appropriate as a communicative punishment.

Despite this, Duff does find a place for imprisonment, but as mentioned before he

thinks it should be reserved to the most serious crimes. Duff argues that, while

imprisonment lacks some communicative virtues, they are not completely lacking.

Imprisonment can communicate to the offender that his conduct has rendered his

further participation in the community (even supervised participation) impossible.

“The message of imprisonment is that the offender has not just damaged or

threatened, but has broken, the normative bonds of the community.”40 As for the aims

of repentance, reform and reconciliation, Duff reminds us that any punishment can

serve these aims if it is done with them in mind (even if there are better modes of

punishment for achieving these aims). Thus “Imprisonment […] must itself, even while

excluding the offender from normal community, be a way of reconciling him with the

community. By this I mean, not just that prisoners must be offered help during their

prison term to equip them for life on their release, but that their imprisonment itself,

as imprisonment, must be understood and administered as a way of reconciling them

with those they have wronged.”41


25

Imprisonment then can serve as a communicative punishment. It communicates to the

offender that he has rendered himself incompatible with the rest of the community.

And it can serve the aims of repentance, reform and reconciliation if it is implemented

with these goals in mind.

With that Duff has shown how the communicative account of punishment relates to

some existing modes of punishment like probation, community service and

imprisonment. He also covers monetary fines, something I won’t go into but which

Duff finds a place for within the theory.42 This leaves us with the question of how (or if)

the communicative theory of punishment respects the requirements of a liberal-

communitarian political theory, requirements which Duff takes seriously.

2.5 Liberal-Communitarianism and the communicative

theory of punishment

The political theory that Duff presupposes for his theory of punishment sets a number

of requirements on the way the state must (or may) treat its citizens. For liberalism

these are requirements flowing from the central values of autonomy, privacy and

freedom. For communitarianism they are related to the way the community can

include or exclude its members.

From the liberal side the values of autonomy and privacy are most relevant. To treat

people as autonomous agents means to treat them as agents who have the capacity

and freedom to decide their own actions and views. But it might be argued that

communicative punishment is coercive. It aims to do several things – to make an

offender regret his actions, to influence him to change his behavior and to apologize

for what he has done. What’s more it does these things forcefully, by subjecting the

offender to some punishment which he has no choice in accepting or not. How can it

treat the offender as an autonomous agent? Duff answers, in part, by qualifying what a

proper respect for an offender’s autonomy entails. A proper respect for autonomy

does not preclude all attempts to influence someone’s behavior. As long as we try to


26

persuade someone in an honest and open way, which leaves it up to the person to be

convinced or not, we are respecting that person’s right to self-determination.

“Are we then trying, illegitimately, to 'impose' our own values on them? Not

necessarily. We are certainly trying to bring them to accept values that we think are

binding on them as they are on us; and our attempt might be forceful and persistent.

But so long as we appeal to their moral understanding, imagination, and sensibility; so

long as we do not use illegitimate methods of deception, manipulation, or coercion to

try to persuade them; so long as we leave it, in the end, to them either to recognize

and accept what we urge on them or to refuse to do so: we are not trying improperly

to 'impose' anything on them. We are instead addressing them— as we should— as

responsible moral agents, seeking by appropriate means to persuade them of what we

take to be the truth.”43

And, the claim is, while communicative punishment is forceful, it is not coercive in the

sense of being dishonest or deceptive. Duff stresses in several places that it is left to

the offender to accept the message of censure or not, likewise with the further aims of

repentance, reform or reconciliation.44 (However he also acknowledges that not all

liberals will be convinced by this.)45

What about a respect for privacy? Even if communicative punishment is consistent

with a respect for autonomy, it is intrusive in the sense that it concerns itself with an

offender’s moral character. It tries to induce in the offender a regret for what he has

done, to make him see his own actions as morally blameworthy. It goes even further in

trying to get the offender to commit himself to reform, to a change in character. Such

an interest in the offender is deeply personal. It is no longer a question of the state

concerning itself with its citizens conduct, but of the underlying character that brought

about that conduct. And, the liberal objection goes, the state has no proper interest in

such matters.

This is an objection that Duff meets head-on. He does not try to show that

communicative punishment does respect an offender’s privacy, but challenges this

43 A. Duff, Punishment, Communication, and Community, p. 71. 44 A. Duff, Punishment, Communication, and Community, p. 110-111, 113, 122. 45 A. Duff, Punishment, Communication, and Community, p. 125.

27

conception of privacy.46 The notion of a citizen’s moral character as a private matter,

as opposed to public matter, stems from the liberal principle that the state’s proper

concern within the criminal law should be with conduct – conduct that harms or

threatens to harm other citizens or their interests. When the law does take an interest

in an offender’s underlying intentions or motives, it should only be to establish

culpability. Harm, conceived in this way, is something which can be separated from

whatever attitudes that caused it. It is the effect of the crime that concerns the

criminal law and the state, because the effects of the crime make up the harm which

the state can legitimately concern itself with. But Duff argues we should understand

the harm caused by crime in a broader way.

“The harm suffered by the victims of central mala in se crimes (such as murder, rape,

theft, violent assault) consists not just in the physically, materially, or psychologically

damaging effects of such crimes but in the fact that they are victims of an attack on

their legitimate interests— on their selves. The harmfulness and wrongfulness of such

attacks lie in the malicious, contemptuous, or disrespectful intentions and attitudes

that they manifest, as well as in their effects. The agent's intentions and practical

attitudes (those directly manifest in his conduct) are thus relevant as conditions of

liability— conditions for holding him liable for conduct that causes or threatens to

cause harm. But, more than that, they are an important aspect of the wrongfulness of

that conduct— of what makes such conduct a proper concern of the criminal law.”47

Part of the damage victims of crime suffer lie not just in the damaging effects of the

crime but the disregard they’ve been shown by the offender. It is not only that they’ve

suffered damage (physical, material or psychological) but that their rights have been

violated. As an example, we could imagine two people who have been equally hurt,

one of them in a car accident and the other in an assault. On the view where harm can

be assessed without regard to the underlying cause of it, their positions would be

interchangeable. But we would commonly think that the victim of the assault is in a

worse position, for apart from suffering the same damage as the person in the car

accident he has also been wronged.

46 A. Duff, Punishment, Communication, and Community, p. 125-129. 47 A. Duff, Punishment, Communication, and Community, p. 128.

28

If we see the harm suffered by victims of crime in this way, as being in part constituted

by the offender’s “actualized” attitude or disregard, his character can be of proper

interest to the state (since according to the harm principle the state can only take an

interest in such things that harm or threaten to harm other citizens). A proper

response to that harm will address those attitudes, which is just what communicative

punishment does.

In short, Duff’s response to the objection that communicative punishment violates an

offender’s privacy is that the offender’s character isn’t a private matter. By committing

an offence the offender can rightly be called to answer for the moral shortcomings

that lay behind that offence, because that disregard makes up part of the harm caused

by the offence.

2.5.1 Communitarian virtues

Some communitarian virtues are inherent in a communicative system of punishment,

like that of normative inclusion. Communicative punishment censures offenders for

their wrongdoing and aim to induce repentance. It censures them for an offence, for

breaking a rule that was binding on them as members of the community. That is to

treat them as if the community’s rules and values applied to them.48 By censuring

them communicative punishment also presupposes that they are receptible to this

kind of moral criticism. And by aiming to induce repentance it treats them as if they

are not beyond redemption.49 This normative inclusion can be contrasted with a

deterrent justification of punishment which portrays offenders as citizens who are not

members of the normative community, as members who need to be deterred from

wrongdoing by an appeal to their own self-interest in not being punished.

Communicative punishment is also linguistically inclusive, in the broader sense of the

term. Duff gave an example of linguistic exclusion in the “alien process” of the criminal

justice system as it exists today. By that he refers not just to the (often) technical and

complex language of the law but the manner in which punishment is imposed on

offenders. He writes ”offenders are often linguistically excluded. They are excluded, for

48 A. Duff, Punishment, Communication, and Community, p. 82, 113. 49 A. Duff, Punishment, Communication, and Community, p. 123.

29

instance, insofar as their trial is an alien process that they cannot understand and in

which they can play no real part [...] and insofar as, given the content of their

punishment and the context and manner of its imposition, the language in which they

can understand it as addressing them is not that of legitimate authority but that of

brute power”.50 (It might seem a bit of a stretch to call such exclusion “linguistic” but

that is the term he uses.) Communicative punishment aims to be linguistically inclusive

by its very nature. The aim of communicative punishment is to communicate censure,

and to induce repentance and self-reform. To communicate censure it has to be done

in a “language” (in the broader sense) that the offender understands, otherwise it fails.

To induce repentance and self-reform the criminal justice process must likewise seek

the offender’s understanding, of the effect of his crime and of the censure as justified.

All of this is linguistically inclusive in the sense Duff is after.

Whether offenders are politically included or excluded depends largely on factors

outside a theory of punishment, for example, whether offenders keep their right to

vote. But Duff favors a system where offenders can be active participants in the

sentencing process, for example, by having a say in what form a community service

order should take.51 This gives offenders at least some say in the process. Apart from

that, political inclusion will be achieved by giving all citizens a fair chance to participate

in the community’s decision-making process.

3 Discussion

3.1 Introduction

Duff’s communicative theory of punishment can be a bit hard to take in. Unlike many

other theories of punishment, it does not offer a single and easily understandable

rationale (like for example, the theory of unfair advantage). Rather, he gives a web of

justifications under a single umbrella, where if some are absent there are others to


30

take its place. This makes the theory harder to evaluate, but also makes it more

resilient to any single counter-argument.

At a glance the communicative theory might seem a bit strange. To justify punishment

on the grounds that it communicates deserved censure (together with some further

aims) is certainly different from the more commonly held consequentialist justification

that punishment deters crime. One objection from a liberal perspective might be that

state-run censure is inappropriate. Even if offenders do deserve censure, we might

think that the state should not engage in such moralizing.52 It puts the state in a

position of authority much like the church (in older days), to pass a form of moral

judgment on its citizens. This would constitute a big change in the relationship

between citizens and the state, where today we would hold it at arms-length from

such matters. We might also object to the state passing censure on offenders on

account of the enormous power discrepancy between a single offender and the

state.53 Proper censure should happen between equals, otherwise it takes on a sort of

imposing character where the censure isn’t up for debate or discussion. The censure is

like that between an employer and an employee, or a parent and a child. The two

parties are not on equal ground, and the one receiving the censure is not in a position

to argue. Were the censure to happen between equals, the censured party is always

free to object to it if he or she does not see it as justified. These objections to the

communicative theory would hold even if it is compatible with liberal values, for they

don’t claim that the theory isn’t, only that state censure is inappropriate or

undesirable.

Of course, there are replies to these objections. While seeing punishment as censure

can seem a bit strange and illiberal, the communicative theory manages to maintain a

connection between punishment and wrongdoing that consequentialist theories can’t.

On the communicative theory, wrongdoing should be punished because it is wrong, it

is the wrong that makes the censure justified. That punishment is for a wrong seems

52 See C. Bennett, “State Denunciation of Crime”, Journal of Moral Philosophy, 3.3, 2006, p. 288-304. 53 See K. Brownlee, “The Offender's Part in the Dialogue”, In Crime, Punishment, and Responsibility: The Jurisprudence of Antony Duff, R. Cruft, M. Kramer & M. Reiff (eds.), Oxford: Oxford University Press, 2011, p. 54.

31

intuitively correct, but consequentialist theories can’t do this intuition justice. On

consequentialist views punishment is justified because it produces positive effects,

that whatever is being punished is wrong is irrelevant for the purpose of justifying that

punishment. But surely it is not because of the effects of punishment that, say, a

murderer deserves to be punished, but because he has murdered someone. Without

the fact that someone has done something wrong, it doesn’t seem to matter that his

punishment produces positive effects on society, it would still be unjustified. If this is

right, any theory of punishment has to draw a connection between justified

punishment and moral wrongdoing to be plausible. In that case it is unavoidable that

the state engages in some sort of moralizing (if it is to have punishment at all), for

punishment will be justified with reference to some moral wrong. Then the liberal

objection becomes moot. It is the liberal idea of a justice system without moral

judgment that is untenable, not the idea of punishment as censure.

As for the objection that the power difference between the offender and the state

makes censure inappropriate, Duff could reply that it does not have to take on this

imposing character. Whether or not it does depends on how it is implemented.

While the previous issues have more to do with political aspects of Duff’s theory, I

want to focus on two questions with the theory itself. First, how (and if) Duff’s theory

hinges on a particular view of offenders, a view that might not be accurate. Second, if

there is room for another communicative justification for punishment that is victim-

focused, as opposed to Duff’s theory which focuses on the offender. Before I get to

that I want to give a brief overview of what other writers have had to say about Duff’s

theory, and whether he has changed his views in a significant way since the time of his

book. The aim is to show that my later criticism is both new, and still relevant against

Duff’s theory.

I have already touched on some of the objections against Duff’s theory from a liberal

perspective. Bennett54 considers the objection against communicative punishment on

the grounds that state censure is incompatible with a liberal society. Kimberley55

54 C. Bennett, "State Denunciation of Crime", p. 288-304. 55 K. Brownlee, The Offender's Part in the Dialogue, In Crime, Punishment, and Responsibility: The Jurisprudence of Antony Duff.

32

questions whether there can ever be a proper dialogue between an offender and the

state. Matravers56 examines the supposed link between justified censure and hard

treatment (that is, prison etc.). On Duff’s account, hard treatment is justified over

other forms of censure on the grounds that hard treatment best fulfills the aims of

repentance, reform and reconciliation. Matravers questions this and argues that Duff

still hasn’t given a satisfactory answer as to why the deserved censure should take the

form of punishment over other forms of censure. Lastly, Murphy57 and Tasioulas58

consider the role of mercy within Duff’s theory. According to Duff already repentant

offenders don’t deserve to be punished any less than unrepentant offenders, since

deserved censure is proportionate to the crime committed. Murphy and Tasioulas

disagree, and argue that there is room for seeing already repentant offenders as

deserving less punishment within a communicative theory.

Duff has responded to some of these criticisms59, from what I can tell he has not

changed his mind in a significant way. He has repeated the view that punishment

should be justified as a form of censure with the aims of repentance, reform and

reconciliation in several places, but not given as detailed an account as he does in his

book.60 What I’m interested in, and what I want to question, is the central claim that

censure could achieve the aims of repentance, reform and reconciliation in offenders.

3.2 Duff’s view of the offender

One of the admirable things about Duff’s theory (and his theorizing) is that it is very

humane. Duff takes the suffering which a system of punishment involves seriously and

opposes theories which characterizes “us” (the law-abiding) as opposed to “them” (the

56 M. Matravers, “Duff on Hard Treatment”, In Crime, Punishment, and Responsibility: The Jurisprudence of Antony Duff. 57 J. Murphy, “Repentance, Mercy, and Communicative Punishment”, In Crime, Punishment, and Responsibility: The Jurisprudence of Antony Duff. 58 J. Tasioulas, “Where is the Love? The Topography of Mercy *”, In Crime, Punishment, and Responsibility: The Jurisprudence of Antony Duff. 59 See A. Duff, “In Response”, In Crime, Punishment, and Responsibility: The Jurisprudence of Antony Duff. 60 See for example A. Duff,“Can we Punish the Perpetrators of Atrocities?”, In The Religious in Responses to Mass Atrocities, Brudholm & Cushman (eds), Cambridge: Cambridge University Press, 2009, p. 79-104., A. Duff, “Retrieving Retributivism”, In Retributivism: Essays on Theory and Policy, White, M. (Ed.), Oxford: Oxford University Press, 2011, and A. Duff, “Responsibility, Restoration, and Retribution”, In Retributivism Has a Past: Has It a Future?, Tonry, M. (Ed.), Oxford: Oxford University Press; 2011.

33

offenders). Duff’s contention seems to be that criminals, as a group, are no different

from the general population. (This is also part of what it means to treat, and think of,

offenders as if they were included in the normative community.) His response to crime

is also commendable, it puts regret and an apology from the offender as central aims

of punishment. These aims seem much more sympathetic than talk of retribution, and

inherently appropriate as responses to wrongdoing. My concern is that this view is

perhaps a bit too sympathetic. It seems to paint a picture of criminal offences (and

offenders) as just stronger versions of common mishaps, done in a moment of

weakness but something which most come to regret after some reflection. And, I

think, there is a reason why Duff paints this picture, and that is because his theory in

part depends on it.

Duff’s view is that punishment should constitute deserved censure, with the aim of

repentance, reform and reconciliation. If there is reason to doubt that punishment

could achieve those aims, the whole theory should come into doubt. One such reason

would be of those punished are not like ordinary citizens. If, for some reason, censure

does not achieve these aims for offenders even if it does for ordinary people. There is

at least one such (sub) group of offenders where this seems likely. A large meta-study

of 23000 prisoners in 12 countries found that 47% of male and 21% of female

prisoners qualified as having anti-social personality disorder.61 Anti-social personality

disorder is characterized by “a pattern of disregard for, and violation of, the rights of

others”.62 One criteria for ASPD is a lack of remorse, and the condition is thought of as

chronic.63 Treatment focus lie on coping strategies where the goal is to make patients

see non-aggressive behavior as being in their long-term interest. Treatment does not

try to “develop a conscience” in those with ASPD, as this is presumably not possible.

Keep in mind that these figures (47% of men and 21% of women) refer to all prisoners.

It includes those convicted of non-violent offences like drug- or economic crimes as

well as those more serious crimes that Duff focuses on like murder, rape or serious

assault. It is very likely that the proportion of those with ASPD is higher the more

61 S. Fazel, J. Danesh, “Serious mental disorder in 23 000 prisoners: a systematic review of 62 surveys”, The Lancet, vol. 359, no. 9306, 2002 62 A. Beck, A. Freeman & D. Davis, Cognitive therapy of personality disorders, 2nd ed., New York: Guilford Press., 2004, p. 163. 63 A. Beck, A. Freeman & D. Davis, Cognitive therapy of personality disorders, p. 165, 179.

34

violent the crime (and lower for non-violent crimes), as a disregard for other people is

characteristic for the disorder. I think, these facts make the goals of repentance and

reform implausible for the kind of offenders that Duff focuses most on. These

offenders are simply not likely to respond in this way to the censure that punishment

makes, if not incapable they are at least very unlikely to feel regret on moral grounds.

(A typical reaction to punishment in those with ASPD is instead that they are being

mistreated by an unjust or unfair system.)64

That some prisoners are unlikely to feel regret does not have to be a problem for Duff

per se. As mentioned before (section 2.2.2) he does allow for some cases of just

punishment even when the aims of repentance, reform and reconciliation are unlikely

to be achieved. In these cases, punishment can be justified on the grounds that we are

obliged to try to achieve them, as otherwise we would be giving up on the offender.65

But Duff also writes that “Punishment is justified as [...] persuading offenders to repent

their crimes. Such a justification cannot be independent of the extent to which that

attempt is likely to succeed.”66 For these reasons it is not entirely clear to me what

importance Duff places on the actual success of punishment in achieving repentance,

reform and reconciliation. In some places he writes that punishment can be justified as

an attempt to secure these aims, even if we have good reasons to believe it will fail. In

others that a justification by these aims cannot be separate from the success in

achieving them. One interpretation is to see these comments as targeting different

levels of application of the theory. We might be justified in trying to achieve the aims

of repentance etc. in individual cases, even if we have good reason to believe we will

fail. However, the institution of punishment as a whole cannot be justified by these

aims independently of how well it succeeds in securing them. Where would that leave

Duff’s theory? Duff draws no line where the proportion of offenders who are unlikely

to repent is high enough to undermine the theory. But evidence would suggest that at

least half of prisoners are unsusceptible to the censure that punishment makes, with

no guarantee that the other half comes to regret their wrongdoing either. To me that

64 A. Beck, A. Freeman & D. Davis, Cognitive therapy of personality disorders, p. 176. 65 A. Duff, Punishment, Communication, and Community, p. 123. 66 A. Duff, Punishment, Communication, and Community, p. 115.

35

seems like a significant limitation for a theory that puts repentance and reform as

central aims of punishment.

If the previous objection targets the real-world applicability of the theory, there is a

related objection on a more theoretical level. Duff writes that we should think of all

offenders as having the capacity to regret their actions, even when we know that not

everyone will do so. This suggests that there is no principled hindrance to every

offender coming to repent, and therefore that every attempt can be justified. But we

know that for a large portion of offenders there is such a hindrance, and it is not clear

that we can justify such a futile attempt simply by reference to inclusiveness. It is one

thing to treat everyone as having the capacity to do something even when we know

that everyone won’t do it. It is another to treat everyone as having a certain capacity

when we know that they in fact don’t.

3.3 Punishment as recognition

At its core Duff’s communicative theory is offender-oriented. Punishment as censure is

directed at the offender, and the aims of repentance reform and reconciliation are

either focused solely on the offender or on the relationship between the offender and

the victim. The political requirements of inclusion and respect for autonomy and

privacy are likewise requirements that Duff relates to our treatment of the offender.

As we’ve seen this focus could be problematic for the communicative theory insofar as

the typical offender is unlikely to respond to censure with regret and a commitment to

self-reform.

My suggestion is that there is another possible justification of punishment on

communicative grounds, one that focuses on the victim instead. This justification has

to do with the recognition that a victim of crime deserves, with regards to the wrong

he or she has suffered. This justification would be present in those cases where the

offender is unlikely to repent as well and might therefor be stronger than the

justification(s) Duff offers. Duff does not ignore the concept or recognition completely

but devotes just one paragraph to it in his entire book. Recognition does not seem to

36

figure in his justification of punishment, he simply writes that it is something we owe

to victims of crime.67

What is recognition? Here the term does not refer to “recognition” in the sense of

remembering something or someone, but in the sense of acknowledgment. To

recognize or acknowledge something involves bringing it attention and accepting or

affirming it. It is something we do all the time in our interactions with other people,

whether it concerns emotions, past events or agreements. To recognize a wrong

requires not just acknowledging that it happened but that it was wrong. It involves an

affirmation of an attitude towards what happened as well that it happened.

As an example, imagine a group of people where one member of the group wrongs

another in some way, perhaps by a punch. To take this wrong seriously the group

should not shy away from the fact that this punch happened (if they know that it

happened). Neither can it do nothing once this fact is established. If the response of

the rest of the group is to do or say nothing, even though no one denies that the punch

happened, we would not fault the victim for feeling that the act was overlooked. And

rightly so, actions that are not met with any kind of resistance are in some sense

sanctioned. What’s needed is some expression of disapproval of the act, that is,

censure. The group needs to express some form of critique, blame or condemnation of

the act for it to recognize it as wrong. Censure is, apart from being what offenders

deserve also an integral part in the recognition of a wrong. The same principle for the

group applies to society at large. For a community to take some wrongs seriously, it

needs to express some disapproval of them. They need to be condemned through

some system which purports to speak for the community.

While the requirement of censure for recognition may sound somewhat obscure,

consider those cases where it is lacking. For example, concerning corporal punishment

of children, something that is legal in most parts of the world. Such communities can

simply not be said to recognize the wrong that such punishment constitutes. (Naturally

some individuals will still be critical of the practice but that is not the same as censure

by the community as a whole.) Other examples would be a lack of rules against spousal


37

abuse, or child marriage. That such a lack of rules often upset us is precisely because it

seems to signal an acceptance or even approval of these practices by those

communities, the opposite of recognizing them as wrong.

Censure then serves a dual purpose, apart from being the appropriate response to

wrongdoing it is also needed for the recognition of wrongs. While single individuals can

recognize wrongs independently of the community, some formal system of censure

grounded in the community’s rules is needed for the recognition of a wrong by the

community as a whole.

Why should this censure take the form of punishment? Since this justification relies on

the same communicative theory as Duff’s, the argument is that punishment as censure

is stronger than any kind of non-punitive censure. Just as the level of censure should

match what is deserved by the offender, an appropriate level of censure is needed for

proper recognition. If the censure is too lenient it portrays the wrong as less serious,

and hence fails to be a recognition at all. For example, if the punishment for an assault

was a light fine we would not think that this wrong has been properly recognized.

But why should wrongs be recognized? The contention that wrongs should be

recognized seems as basic as the idea that wrongdoers deserve censure. If someone

has been wronged we owe it to that person to recognize the wrong they have

suffered. It is perhaps not possible to ground this intuition in anything further. One

could also argue on communitarian grounds that we owe it to victims of crime to

recognize their suffering. If someone has been wronged and the response of the

community is to do nothing, this not only signals an acceptance of the community

towards the act but that the victim is not a full member of the community. Accepting a

violation of someone’s rights implies that those rights don’t apply to them.

The justification of punishment on the grounds that it is needed for recognition has

some advantages over Duff’s theory. Most importantly, it is present even if offenders

are unlikely to regret their actions. However, there are at least two possible objections

to this justification. The first has to do with those cases where there are no clear

victims, the other with the requirement that the state not treat its people as a means

to an end.

38

For some offences there are no clear victims because of the nature of the crime. For

example, speeding, tax-evasion or drug-crimes. In other cases the victim of the crime is

dead or missing, either because of the crime or due to other causes. The lack of an

identifiable victim could be problematic for the recognition justification since it is the

victim who is owed a recognition by the community.

In those cases where the victim is gone this does not seem to be a big problem. We

often think that people can be owed apologies or restitution even when they are dead.

Recognition should be no different in this respect. Crimes where there are no clear

victims to begin with are more problematic. One could argue that these crimes do

have victims. For example, the victims of speeding are those who have been hurt in

accidents caused by speeding. But the connection between an offender and his or her

victims is more abstract in this instance, since someone can be punished for speeding

without actually having caused an accident. It seems even harder to identify the

victims of tax-evasion – in a sense all citizens are victims of tax-evasion as they have to

make up for this loss in revenue. But this victimhood is even more abstract than in the

speeding example. Furthermore, when the group of victims stretches to include most

members of a community the relationship between the group doing the recognizing

and the group owed the recognition turns strange. One can’t recognize a wrong

against oneself, it has to be done by an outside group.

Another option is to treat these cases as exceptions. For most crimes there are clear

and identifiable victims, and they deserve to have their suffering recognized. For those

crimes that don’t have victims in this sense the justification is not present. This is not

an argument against recognition as a justification of punishment, just an

acknowledgment that it isn’t universal. This would speak in favor of the view that there

can be several justifications of punishment, and where some are lacking others can

take their place. For example, the recognition justification and the communicative

theory aren’t mutually exclusive.

What about the requirement that a liberal state not treat its citizens as a means to an

end? This was one of the main objections to the consequentialist theory that sought to

use the punishment of offenders as a deterrent against crime. Likewise, one might

argue that to justify punishment on the grounds that victims deserve recognition is to

39

treat offenders as a means to this end. We would punish offenders not because of any

reasons having to do with them, but having to do with what we owe their victims. The

offender is seemingly just used for this purpose.

One reply to this objection is to argue that the two cases are not analogous. The origin

of the principle that we don’t treat persons “as means” is Kant, who asserted that

every person should be treated as an end in themselves. “Judicial punishment can

never be used merely as means to promote some other good for the criminal himself

or for civil society, but instead it must in all cases be imposed on him only on the

ground that he has committed a crime; for a human being can never be manipulated

merely as a means”.68 Keep in mind that Kant’s notion of being treated as an end is not

necessarily pleasant, his idea of treating a murderer as and end is to kill him. In a

famous passage he writes that “Even if a civil society were to dissolve itself by common

agreement of all its members […], the last murderer remaining in prison must first be

executed, so that everyone will duly receive what his actions are worth and so that the

bloodguilt thereof will not be fixed on the people because they failed to insist on

carrying out the punishment; for if they fail to do so, they may be regarded as

accomplices in this public violation of legal justice.”69

The reason the consequentialist theory falls foul of Kant’s principle is because there is

no desert connection between committing a crime and being used as a deterrent.

However, if the censure of an offender is required for recognition, and if victims of

crime deserve recognition, offenders do deserve to be censured. In this case there is

an intrinsic connection between desert and punishment, and therefore we would be

treating the offender in accordance with Kant’s principle.

In short, the communicative framework behind Duff’s theory allows for an alternative

justification of punishment which is victim-oriented instead of offender-oriented.

Victims of crime deserve to have their suffering recognized by the larger community,

and this recognition can only happen through the censure of the offender by the

68 I. Kant, The Metaphysical Elements of Justice. Part I of The Metaphysic of Morals, 1797, translated by J. Ladd, Indianapolis: Hackett Publishing Company, 2nd ed, 1999, p. 138. 69 I. Kant, The Metaphysical Elements of Justice. Part I of The Metaphysic of Morals, 1797, translated by J. Ladd, Indianapolis: Hackett Publishing Company, 2nd ed, 1999, p. 140.

40

community. Per the communicative theory, punishment can be seen as a form of

censure, one that is more forceful than other kinds of non-punitive censure. This level

of censure is needed for the proper recognition of a wrong, as any less would signal

that the crime was less serious. While this justification focuses on what victims deserve

it still maintains a connection between desert and punishment of the offender,

satisfying the Kantian requirement that we treat the offender as “an end” in himself.

41

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