Abstract
In ‘Why Criminal Law: A Question of Content?’, Douglas Husak argues that an analysis of the justifiability of the criminal law depends upon an analysis of the justifiability of state punishment. According to Husak, an adequate justification of state punishment both must show why the state is permitted to infringe valuable rights such as the right not to be punished and must respond to two distinct groups of persons who may demand a justification for the imposition of punishment, namely, individuals subjected to punishment and the society asked to support the institution of punishment. In this discussion, I analyse Husak’s account of the right not to be punished with an eye to showing that the parameters of that right do not extend to the cases that would make it controversial. I also consider two other distinct groups of persons who have equal standing to alleged offenders and society to demand justification for the imposition of state punishment, namely, direct victims of crimes and criminal justice officials.
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Notes
For simplicity, Husak maintains that all modes of punishment involve hard treatment or deprivation.
Husak appeals to Judith Jarvis Thomson’s distinction between infringing rights and violating rights. Husak characterises an action that implicates rights justifiably as an infringement of rights and an action that implicates right unjustifiably a violation of rights. However, by invoking the notion of ‘implication’, Husak may misrepresent Thomson’s distinction between infringing and violating, particularly if her intention is that ‘infringement’ leaves open the question of whether the action is justified.
Gardner (2003).
C.f. Duff (1998).
Moreover, since the forms of punishment permitted by a communicative theory necessarily are modest so as not to ‘drown out the moral appeal’ of the communication (as Andrew von Hirsch would say), it is unlikely that a person’s interests against hard treatment would be sufficient to ground a right not to be punished.
This point was noted by Antony Duff at the British Academy conference ‘Why Criminal Law?’ in January 2007.
The idea of an inalienable right not to be punished could be defended on an abolitionist theory of punishment. If, for example, the imposition of punishment by human beings on other human beings could never be justified, then persons have, for all practical purposes, an inalienable right not to be punished. And yet, on a plausible version of consequentialism, that right not to be punished could be infringed in imperfect human criminal justice systems when imposing otherwise indefensible punishment is necessary and sufficient to achieve the best consequences.
Concerning Husak’s condition that the punishment be deserved, we might distinguish between deserved punishment and justified punishment without resorting to a hybrid theory of punishment. See Tasioulas (2006).
C.f. Rawls (1955).
C.f. Carlen (1994).
References
Carlen, P. (1994). Crime, inequality, and sentencing. In D. Garland & R. A. Duff (Eds.), A reader on punishment. Oxford: Oxford University Press.
Duff, A. (1998). Desert and penance. In A. Ashworth & A. von Hirsch (Eds.), Principled sentencing: Readings on theory and policy (2nd ed.). Oxford: Hart Publishing.
Gardner, J. (2003). The mark of responsibility. Oxford Journal of Legal Studies, 23(21), 157–171.
Husak, D. (2003). Is the criminal law important? The Ohio State Journal of Criminal Law, 1, 261–271.
Husak, D. (2007). Overcriminalisation. Oxford: Oxford University Press.
Rawls, J. (1955). Two concepts of rules. Philosophical Review, 64, 3–32.
Tasioulas, J. (2006). Punishment and repentance. Philosophy, 81, 279–322.
Acknowledgements
For very helpful comments, I thank Antony Duff, Adrian Viens, and the participants of the British Academy conference on ‘Why Criminal Law?’ January 2007.
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Brownlee, K. Justifying Punishment: A Response to Douglas Husak. Criminal Law, Philosophy 2, 123–129 (2008). https://doi.org/10.1007/s11572-008-9046-5
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DOI: https://doi.org/10.1007/s11572-008-9046-5