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Republican Theory and Criminal Punishment

Published online by Cambridge University Press:  26 January 2009

Philip Pettit
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Abstract

Suppose we embrace the republican ideal of freedom as non-domination: freedom as immunity to arbitrary interference. In that case those acts that call uncontroversially for criminalization will usually be objectionable on three grounds: the offender assumes a dominating position in relation to the victim, the offender reduces the range or ease of undominated choice on the part of the victim, and the offender raises a spectre of domination for others like the victim. And in that case, so it appears, the obvious role for punishment will be, so far as possible, to undo such evils: to rectify the effects of the crime that make it a repugnant republican act. This paper explores this theory of punishment as rectification, contrasting it with better established utilitarian and retributivist approaches.

Type
Research Article
Information
Utilitas , Volume 9 , Issue 1 , March 1997 , pp. 59 - 79
Copyright
Copyright © Cambridge University Press 1997

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References

1 I draw heavily on Braithwaite, John and Pettit, Philip, Not Just Deserts: A Republican Theory of Criminal Justice, Oxford, 1990Google Scholar as well as on two related articles: Pettit, Philip with Braithwaite, John, ‘Not Just Deserts, Even in Sentencing’, Current Issues in Criminal Justice, iv (1993), pp. 225–39CrossRefGoogle Scholar; and ‘The Three R's of Republican Sentencing’, Current Issues in Criminal Justice, v (1994), 318–25Google Scholar.

2 For background see Pocock, John, The Machiavellian Moment: Florentine Political Theory and the Atlantic Republican Tradition, Princeton, 1975Google Scholar and Skinner, Quentin, The Foundations of Modern Political Thought, 2 vols, Cambridge, 1978Google Scholar.

3 See Robbins, Caroline, The Eighteenth Century Commonwealthman, Cambridge, Mass., 1959CrossRefGoogle Scholar; Raab, Felix, The English Face of Machiavelli. A Changing Interpretation 1500–1700, London, 1965Google Scholar; and Worden, Blair, ‘English Republicanism’, The Cambridge History of Political Thought, ed. Burns, J. H. and Goldie, M., Cambridge, 1991, pp. 443–75Google Scholar.

4 See de Secondat Montesquieu, Charles, The Spirit of the Laws, tr. and ed. Cohler, A. M., Miller, B. C. and Stone, H. S., Cambridge, 1989, p. 70Google Scholar.

5 See Pettit, Philip, Republicanism: A Theory of Freedom and Government, Oxford, 1997Google Scholar. See also Pettit, Philip, ‘Freedom as Antipower’, Ethics, cvi (1996)Google Scholar. In this argument for the centrality of the republican notion of freedom I have been greatly encouraged by the work of Quentin Skinner. See for example ‘The Idea of Negative Liberty’, Philosophy in History, ed. Rorty, R., Schneewind, J. B. and Skinner, Q., Cambridge, 1984CrossRefGoogle Scholar. The account given here uses material from my ‘Republican Political Theory’, Political Theory: Tradition, Diversity and Ideology, ed. A. Vincent, Cambridge, forthcoming.

6 See Miller, David, Market, State and Community, Oxford, 1990, p. 35CrossRefGoogle Scholar, and Spitz, Jean Fabien, La Liberté Politique, Paris, 1995, pp. 382–3CrossRefGoogle Scholar.

7 When proponents of this ideal speak of making freedom as non-interference effective, not just leaving it as a formal freedom, I assume that they often have in mind removing or reducing the obstacles that condition the exercise of freedom as non-domination: extending the range of choice available to people.

8 Bentham, Jeremy, ‘Anarchical Fallacies’, in The Works of Jeremy Bentham, ed. Bowring, J., Edinburgh, vol. 2, 1843, p. 503Google Scholar.

9 Hobbes, Thomas, Leviathan, ed. MacPherson, C. B., Harmondsworth, 1968, p. 264Google Scholar.

10 See Harrington, James, The Commonwealth of Oceana and A System of Politics, ed. Pocock, J. G. A., Cambridge, 1992, p. 20CrossRefGoogle Scholar.

11 Locke, John, Two Treatises of Government, ed. Laslett, Peter, New York, 1965, p. 325Google Scholar.

12 Locke, p. 348.

13 See Blackstone, William, Commentaries on the Laws of England, 9th edn., New York, p. 326Google Scholar.

14 Harrington, p. 8.

15 See Lind, John, Three Letters to Dr Price, London, 1776Google Scholar.

16 See Sydney, Algernon, Discourses Concerning Government, ed. West, T. G., Indianapolis, p. 17Google Scholar.

17 See Trenchard, John and Gordon, Thomas, Cato's Letters, 6th edn., New York, 1971, vol. ii, pp. 24950Google Scholar.

18 Sydney, p. 441.

19 See Price, Richard, Political Writings, ed. Thomas, D. O., Cambridge, 1991, pp. 77–8Google Scholar.

20 See Priestley, Joseph, Political Writings, ed. Miller, P. N., Cambridge 1993, p. 140CrossRefGoogle Scholar.

21 Mill, J. S., Utilitarianism, ed. Robson, J. M., Toronto, 1969Google Scholar, Collected Works of John Stuart Mill, x.257.

22 I have argued elsewhere that what may have led Bentham and his fellows away from the republican conception of liberty was the sense that it was infeasible to think of achieving such a rich ideal for an expanded constituency. See Republicanism, ch. 1. Bentham's fellow utilitarian, William Paley, was aware that the notion of freedom as non-domination was the established conception of freedom but as early as 1785 argued against it – and in favour of the liberal alternative – on the grounds that it would ‘inflame expectations that can never be gratified, and disturb the public content with complaints, which no wisdom or benevolence of government can remove’. See Paley, William, Principles of Moral and Political Philosophy, London, 1825, p. 359Google Scholar.

23 See Pettit, Republicanism, ch. 3.

24 See John Braithwaite and Philip Pettit, Not Just Deserts, ch. 3, and Pettit, Republicanism, ch. 3.

25 See Pettit, ‘Freedom as Antipower’ and Republicanism, ch. 2.

26 Priestley, pp. 35–6.

27 See Montesquieu, p. 157.

28 For some work in this direction see Braithwaite and Pettit, Not Just Deserts and Ayres, Ian and Braithwaite, John, Responsive Regulation, New York, 1992Google Scholar.

29 In Not Just Deserts John Braithwaite and I argued that punishment represents the very same evil as crime; it is an offence, as we put it, against dominion. I modify that claim a little here. Punishment is an offence against non-domination (i.e. what we earlier called dominion) but not necessarily of exactly the same kind as crime: it has to condition freedom as non-domination but strictly it need not compromise it; it has to reduce the range or ease with which the offender exercises non-domination but it need not itself dominate the offender.

30 I borrow the idea of such a test, of course, from the sort of contractarian tradition represented in Rawls, John, A Theory of Justice, Oxford, 1971Google Scholar; Scanlon, T. M., ‘Contractualism and Utilitarianism,’ Utilitarianism and Beyond, ed. Sen, A. and Williams, B., Cambridge, 1982Google Scholar; and Barry, Brian, Justice as Impartiality, London, 1995Google Scholar. There is an intuitive connection between the idea of a form of state action being non-arbitrary and its being, in Scanlon's terms, the sort of action about which no one could reasonably complain.

31 Montesquieu, p. 203.

32 See Spitz, pt. 3, on Rousseau's insistence that freedom as non-domination requires a moral-cum-legal acknowledgement of a person's status. See also Pettit, Republicanism, ch. 8.