Punishment, Communication, and CommunityThe question "What can justify criminal punishment ?" becomes especially insistent at times, like our own, of penal crisis, when serious doubts are raised not only about the justice or efficacy of particular modes of punishment, but about the very legitimacy of the whole penal system. Recent theorizing about punishment offers a variety of answers to that question-answers that try to make plausible sense of the idea that punishment is justified as being deserved for past crimes; answers that try to identify some beneficial consequences in terms of which punishment might be justified; as well as abolitionist answers telling us that we should seek to abolish, rather than to justify, criminal punishment. This book begins with a critical survey of recent trends in penal theory, but goes on to develop an original account (based on Duff's earlier Trials and Punishments) of criminal punishment as a mode of moral communication, aimed at inducing repentance, reform, and reconciliation through reparation-an account that undercuts the traditional controversies between consequentialist and retributivist penal theories, and that shows how abolitionist concerns can properly be met by a system of communicative punishments. In developing this account, Duff articulates the "liberal communitarian" conception of political society (and of the role of the criminal law) on which it depends; he discusses the meaning and role of different modes of punishment, showing how they can constitute appropriate modes of moral communication between political community and its citizens; and he identifies the essential preconditions for the justice of punishment as thus conceived-preconditions whose non-satisfaction makes our own system of criminal punishment morally problematic. Punishment, Communication, and Community offers no easy answers, but provides a rich and ambitious ideal of what criminal punishment could be-an ideal of what criminal punishment cold be-and ideal that challenges existing penal theories as well as our existing penal theories as well as our existing penal practices. |
Contents
Consequentialists Retributivists and Abolitionists | 3 |
The Rights of the Innocent | 7 |
13 Consequentialist Responses | 8 |
2 SideConstrained Consequentialism | 11 |
Doing Justice to the Guilty | 13 |
3 Forfeiting of Rights and Societal Defense | 14 |
32 Punishment as Societal Defense | 16 |
4 Retributivist Themes and Variations | 19 |
5 Probation and Community Service as Communicative Punishments | 99 |
52 Extending Probation | 102 |
53 Community Service Orders as Public Reparation | 104 |
Mediating between Community and Offender | 105 |
6 Punishment as Penance | 106 |
61 The Three Rs of Punishment | 107 |
62 Who Owes What to Whom? | 112 |
7 Different Kinds of Offender | 115 |
41 The Guilty Deserve to Suffer | 20 |
42 The Removal of Unfair Advantage | 21 |
43 Punitive Emotions | 23 |
44 Punishment as Communication | 27 |
5 The Abolitionist Challenge | 30 |
51 What Is to Be Abolished? | 31 |
52 Why Abolition? | 32 |
53 What Should Replace Punishment? | 33 |
Liberal Legal Community | 35 |
1 Liberalism and Communitarianism | 36 |
1 2 The Penal Rhetoric of Community | 39 |
2 A Normative IdeaI of Community | 42 |
22 Political Community | 46 |
3 Communitarianism and Liberalism Again | 48 |
32 T and We | 51 |
33 Choice and Recognition | 53 |
34 Individual Goods and Shared Goods | 54 |
4 The Criminal Law of a Liberal Polity | 56 |
42 The Criminal Law as a Common Law | 59 |
43 The Concept of Crime | 60 |
44 The Authority of the Criminal Law | 64 |
45 A Limited Criminal Law | 66 |
5 Nonvoluntary Membership | 68 |
6 Responses to Crime | 72 |
Punishment Communication and Community | 75 |
12 Exclusionary Punishments | 77 |
2 Punishment and Communication | 79 |
22 Communication and the Criminal law | 80 |
23 Punishment Communication and Hard Treatment | 82 |
32 Censure and Prudential Supplements | 86 |
4 Punishment as Purposive Communication | 88 |
41 Punishment as Moral Education? | 89 |
Civil versus Criminal | 92 |
43 Criminal Mediation Punishment and Communitation | 96 |
71 The Morally Persuaded Offender | 116 |
72 Hie Shamed Offender | 117 |
73 The Already Repentant Offender | 118 |
74 The Defiant Offender | 121 |
8 Penitential Punishment and the Liberal State | 125 |
9 But Yet | 129 |
Communicative Sentencing | 131 |
1 Punishing Proportionately | 132 |
11 Relative or Absolute Proportionality? | 133 |
12 Proportionality of What to What? | 135 |
13 Positive or Negative? | 137 |
14 Overriding or Defeasible? | 139 |
15 Beyond Proportionality | 141 |
2 Punishments and Their Meanings | 143 |
21 Monetary Punishments | 146 |
22 The Meaning of Imprisonment | 148 |
23 Capital Punishment | 152 |
3 Who Decides? | 155 |
General versus Particular | 156 |
32 Negotiated Sentences? | 158 |
4 Criminal Record and Dangerous Offenders | 164 |
41 The Relevance of Prior Criminal Record | 167 |
42 Dangerous Offenders | 170 |
From Theory to Practice | 175 |
2 Preconditions of Criminal Punishment | 179 |
22 Political Obligation | 181 |
23 To Whom Must I Answer? | 184 |
24 The Language of the Law | 188 |
25 Law and Community | 193 |
3 Can Criminal Punishment Be Justified? | 197 |
Notes | 203 |
References | 223 |
241 | |
Other editions - View all
Common terms and phrases
abolitionism abolitionist accept account of punishment answer apology appropriate argue Ashworth autonomy capital punishment censure claim committed communitarian Community Service Orders community's conception concern conduct consequentialist convicted courts crime criminal justice criminal law criminal liability criminal punishment criticism defining demands depends deserve deterrent discussion Dobash excluded fellow citizens fender guilty harm Hirsch imposed imprisonment incapacitative individual instance involve ishment justified kind language law's liberal polity mala mala in se ment modes of punishment moral agents moral communication normative community offender's Oxford University Press penal hard treatment penal system Penal Theory penance penitential punishment persuade political community portray precondition of criminal principle of proportionality probation properly public wrongs question rational reasons recognize reconciliation reform reparation repentance responsible Restorative Justice Retribution retributivism retributivist sentence serious side-constraints social social contract suffer tences theory of punishment tion Tonry treat understand values victim wrongdoer wrongdoing