Abstract
Egyptians had many reasons to overthrow the government of Hosni Mubarak, and to challenge the legitimacy of the interim military government. Strikingly, among the leading reasons for the uprising and for continued protest are reasons grounded in criminal justice. Reflection on this dimension of the Egyptian uprising invites a broader examination of the relationship between criminal justice and political legitimacy. While criminal justice is neither necessary nor sufficient for political legitimacy, criminal injustice substantially undermines political legitimacy and can provide independent reasons for revolution. A state may compromise its legitimacy by committing criminal acts, by perverting or subverting the criminal process, and by failing to discharge its duty to punish serious wrongdoing—a duty that then falls to individuals to discharge either directly (through vigilantism) or indirectly (through revolution). Contrary to the views of many leading criminal law theorists, the duty to punish serious wrongdoing applies to individuals and not only to states. The relevance of political legitimacy to criminal justice is more complicated. Individuals are morally obligated to follow the morally justified laws of an illegitimate state, but are not morally obligated to follow the morally unjustified laws of a legitimate state. Nor may any state punish in the absence of moral wrongdoing and moral fault. However, illegitimate states may be incapable of justly holding individuals accountable to the state, to the community, or to victims through criminal trials. This incapacity provides an additional reason to overthrow illegitimate states and replace them with legitimate states capable of justly administering a just criminal law.
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Notes
I should add that any moral obligation to obey the otherwise morally justified legal duties imposed by a conditionally legitimate state is opposed by a range of competing reasons to disobey, including the use of disobedience as part of a strategy to deprive the state even of conditional legitimacy.
Additionally, large-scale embezzlement by the regime and widespread extortion by the police were crimes in themselves and also compounded the socio-economic injustices afflicting Egyptian society.
Punishment is indeed a relational activity, although I have argued that in its central case punishment is a triadic relationship in which the punisher owes the victim of wrongdoing a duty to punish the perpetrator (Haque 2005).
Of course, the fact that my promise created expectations may give you a reason to do what I promised to do in order to satisfy those expectations. But my promise is not your reason for action.
For example, international law generally obligates new states to pay the debts and honor the treaties of their predecessor states. The predecessor state obligation terminates with the predecessor state, but the new state incurs a new obligation to do what the predecessor state was obligated to do.
Victor Tadros reminds me that Kant, who inspires Binder and Thorburn, generally denied the moral permissibility of revolution. My impression is that Kant’s position on revolution is not widely accepted, even among Kantians. However, if Binder and Thorburn share Kant’s position on revolution then they are in worse shape than I previously imagined.
For the classical dramatization see Aeschylus (1969). For a philosophical exposition see Gardner (1998, p. 31) (‘The blood feud, the vendetta, the duel, the revenge, the lynching: for the elimination of these modes of retaliation, more than anything else, the criminal law as we know it came into existence.’).
Note, however, that it is possible to argue that there is a duty to punish in order to achieve general deterrence. See Tadros (2011).
Compare Husak (2008)(describing internal constraints on criminalization).
It is also worth noting that individual officials may have competing reasons not to enforce the laws of a conditionally legitimate state, including the use of non-enforcement as part of a strategy to deprive it of even conditional legitimacy. However, these competing reasons are more likely to be decisive regarding crimes that are mala prohibita rather than mala in se.
At one point, Markel expresses doubt that moral obligations are additive in any relevant sense. Unfortunately, Markel’s example of non-additive obligations (two promises, one forgotten, to the same person to perform the same act) muddies the waters. If I promise two different people to perform the same act then I have stronger reasons to perform that act than if I promise only one person, and I require stronger reasons to justify violating both promises than to justify violating only one. More clearly still, if you promise your spouse not to commit some minor marital wrong (shirking your household duties, for example) then you have an additional duty to avoid that wrong and would need stronger reasons to justify committing that wrong.
Victor Tadros reminds me that we may have other reasons to obey morally unjustified laws, for example if failing to do so will encourage other people to disobey morally justified laws.
Similarly, the defendant in a tort action is held accountable by the court to her victim.
I write ‘seems’ because Hershovitz at one point writes that ‘in most developed democracies, laws that prohibit murder reflect legitimate exercises of authority precisely because it is valuable for people be accountable to one another through the state for serious moral transgressions of that sort’ (Hershovitz 2011, p. [19], emphasis added). This passage seems to imply that, even in a legitimate state, individuals are not accountable to the state; instead, the state holds individuals accountable to one another. But this position seems at odds with almost everything else that Hershovitz says.
By way of comparison, it seems that an illegitimate state could justifiably hold a tortfeasor accountable to her victim for violating her duty to her victim.
Victor Tadros has suggested to me that an illegitimate state may also be justified in punishing for the sake of general deterrence. However, I expect Tadros would agree that deterrent punishment is substantially harder to justify than preventive detention. As Tadros argues elsewhere, it is harder to justify harming someone to prevent future wrongdoing by others, for which they will not be responsible, than to justify harming someone to prevent them from committing future wrongs themselves, for which they will be responsible. Moreover, it is harder to justify harmfully manipulating someone than to justify harmfully eliminating the threat they pose. See Tadros (2011). Since general deterrence is substantially harder to justify than preventive detention it is highly unlikely that an illegitimate state would be even conditionally justified in punishing for the sake of general deterrence.
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Acknowledgments
Thanks to Michael Cahill, Glenn Cohen, Antony Duff, David Gray, Dan Markel, and Victor Tadros for comments on an earlier draft.
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Haque, A.A. The Revolution and the Criminal Law. Criminal Law, Philosophy 7, 231–253 (2013). https://doi.org/10.1007/s11572-012-9183-8
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DOI: https://doi.org/10.1007/s11572-012-9183-8