Abstract
In the recently published collection, Criminal Law and the Authority of the State, two contributions allude to an analogy with parental authority as a means to a better understanding of the institution of criminal punishment, but reach different conclusions. Malcolm Thorburn uses the parental authority analogy to justify the institution of state punishment as an assertion of robust authority over offenders. Antje du Bois-Pedain uses the same analogy to advocate the idea of punishment as an inclusionary practice, designed to reintegrate offenders into society. I argue that Thorburn’s theory of robust authority is inconsistent if not self-contradictory when it tries to assume a liberal posture, and that du Bois-Pedain’s reintegrative model provides a better account of the justification and objectives of state punishment.
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Notes
Thorburn (2017: 11–13).
Ibid., at 13–16.
Ibid., at 9.
Ibid., at 9.
Other jurists have also discussed criminal conduct as usurpation of state authority to set legal norms. Jerome Hall showed concern that, in at least some instances of offending, the actor replaces his own code of ethics for that of the penal law. See Hall (1990: 102). Jeremy Horder pointed to instances in which the offender “substitutes his or her own conception of a just resolution of a problem for that of the polity”. See Horder (2000: 183). This idea is perhaps also implicit in Raz (1979: 24), where he discusses the concept of authority as the replacement of the subject’s judgement. I recently reviewed these arguments in Eldar and Laist (2017). To the best of my knowledge, however, none of these writers went as far as to justify punishment based on the concept of usurpation of authority, or to state, with Thorburn (2017: 10), that “the institution of criminal punishment is the ultimate vindication of the rule of law”. For them, the notion of the rule of law acts not as the justification of punishment, but only as a necessary condition for its just imposition.
Thorburn (2017: 17), quoting Thomas Aquinas.
Ibid., at 15.
Ibid., at 25–26. Although Thorburn rejects penal instrumentalism in the sense of using punishment to advance policy goals, he seems to accept the instrumental aim of punishment in defending the authority of the state. The sentence is instrumental in that it upholds the authoritative appeal to the last word.
Ibid., at 18.
Ibid., at 18.
Ibid., at 27.
Ibid., at 27.
Ibid., at 28.
Ibid., at 21. Thorburn relies too heavily on punishment as the only option available for claiming parental authority. See below, text to note 16.
Ibid., at 17.
Ibid., at 21.
My positon about the educational character of parental sanctions is not to be confused with the claim that parental sanctions can never qualify as punitive—a claim that was recently refuted in Husak (2016a). I believe that some parental practices may be properly labelled punitive, but the differing roles of parents and state dictate a difference in the justification of punishment by each.
du Bois-Pedain (2017: 206) makes a similar observation about the difference between the two institutions of punishment, stating that parental discipline is “quite different from state punishment in that it is (ideally at least) a constructive form of discipline linked to a child’s upbringing through parental guidance within the family”.
Naturally, this is not always so. Parental authority is often used not in the best interest of the child, for example, when a fatigued parent threatens punishment to silence a child whose wellbeing may be advanced by spending his excessive energy. Here, the legitimacy of punishment, as opposed to non-coercive measures, may again be questioned.
This is Thorburn’s view in (2012: 283): “Because parents hold this broad fiduciary power over their children, it is appropriate for them to consider a wide variety of factors related to the children’s welfare broadly understood when punishing them. But the situation is rather different when we consider the situation of competent adults—the usual objects of criminal punishment… The liberal state’s legitimate coercive power is different in kind and much narrower in scope than parental power to discipline children, for it is consistent with a liberal respect for individual autonomy in only the narrowest of cases”.
In the same vein, Anat Scolnicov’s contribution to the collection unwittingly refutes Thorburn’s parental analogy, stating that “the community is not equal to the family, even though both have social importance. It is an illiberal conception of the criminal law and an illiberal conception of the citizen in the state to assume that a citizen has a duty to the state akin to the duty one owes to his or her family”. See Scolnicov (2017: 144). Note that Scolnicov refutes an even weaker parallel between society and family than the one defended by Thorburn: she denies that citizens owe allegiance to the state as family members may owe to each other. Thorburn stretches the metaphor much further, to regard citizens as children under state authority.
Thorburn (2017: 31).
Ibid., at 30.
See text to above note 3.
Zedner (2017). Reflecting on the legitimacy condition of abiding by the rule of law, Zedner adds: “For the criminal process and trial to satisfy the requirement of justice and serve as sufficient protection against overreaching of state authority, it must abide by the rule of law… Central rule of law values include certainty, clarity of definition and predictability in the substance and application of laws and, of particular importance to the criminal law, the principle of non-retrospectivity. They contribute to the avoidance of arbitrariness by limiting and guiding the exercise of discretion by criminal justice officials to ensure that they operate ‘within a clear and certain framework’” (at 94–95).
Bottoms and Tankebe (2017: 61, 72–73). Bottoms and Tankebe also remind us that the allusion to “the state” is a simplification: states vary in their relevant factors, and thus the conditions of legitimacy may vary according to the polity of each state (at 70). To stretch the family metaphor, Bottoms and Tankebe bring to mind Tolstoy’s opening of Anna Karenina: “each unhappy family is unhappy in its own way”. The authors enrich the analysis further by discussing the plurality of audiences in the state-citizen dialogue: “a further important feature of the dialogic metaphor is that a single power-holder may need to address several different audiences (the rich and the poor; different ethnic groups; etc.); also, audiences may make a significant differentiation in their assessment of the legitimacy of different power-holders (for example, within the police service, the local neighbourhood police and the specialist drug squad)” (at 73–74). Perhaps this nuanced account is the outcome of their discussion of state power in its particular manifestation in the police force, and their focus on “what, here and now, makes sense as legitimation of power” (at 84, citing Bernard Williams).
Harel (2017). Harel argues that the state should not be allowed to delegate the imposition of punishment to private agents, as in the case of privately run prisons. The important issue in the privatisation of prisons is not whether the private sector is able to effectively manage incarceration aims; it is that only public agents can act in the name of citizens. This may mark another difference between punishment imposed by the family and by the state, for Harel need not hold the position that parents are never allowed to delegate their punitive authority to others. Parents are usually obligated to send their children to educational institutions that have disciplinary authority over them. Harel’s theory does not commit him to either a position that mandates home schooling or that bars schools from imposing disciplinary measures. It is possible to hold that, even if states are not allowed to send citizens to be disciplined in private institutions (or to put citizens in a position where they may be subjected to private disciplinary measures), parents are allowed to send their children to be educated in private schools and boarding institutions, where they may be subjected to hard disciplinary measures. The difference may have to do with the children’s status as minors.
Dyson (2017).
In this respect, too, the parental analogy fails: arguably, parental authority, which is not a construct but is based on a natural, biological bond, requires fewer conditions for legitimacy than does state authority.
See further discussion below, text to notes 39–41.
See above, note 3.
Thus, Beccaria found it necessary to protect the common repository from the “private usurpations of each individual, who is always seeking to extract from the repository not only his own due but also the portions which are owing to others”. Beccaria (1995 [1764]: 9). But Beccaria also speaks of “the despotic spirit of every man” (ibid.).
Generally speaking. In detail, see Husak (2016a).
Thorburn maintains that parents are allowed to use coercive force even if the child is not yet old enough to understand the rules set by the parent. See Thorburn (2017: 19). This form of paternalism is not practiced and cannot be justified in state punishment.
du Bois-Pedain (2017: 199–200). For further development of the parental analogy, see also at 201.
Ibid., at 201–215; e.g., at 214: “we need to recall what justifies the state in actually punishing an offender: the offender’s interest in partaking again in a life in common committed to the preservation of the conditions of equal freedom”.
Ibid., at 206.
du Bois-Pedain (2017: 217–218).
du Bois-Pedain seems to be of two minds on the subject of the place of proportionality assessment in sentencing, at times calling sentencers to include in their primary concern for the gravity of the offence also considerations pertaining to personal reintegration (at 217), and at others claiming that the conceptually dominant goal in sentencing is not proportionality but rehabilitation (at 214). By comparison with the theory of robust authority, however, note that, although respect for the individual offenders’ continued status as citizens may entail a need for proportionate sentencing, it is not readily understood how such a criterion may be set in the theory that views the sentence as the “last word” on authority. In reintegrative sentencing, the notion of the state as maintaining continuous relations with its citizenry may demand fairness in the meting out of punishment. By contrast, the idea of robust authority cannot explain the need for proportionate sentencing: such sentencing may have some instrumental value, but Thorburn rejects the instrumental account of criminal law (see above, note 2). Although Thorburn expressly considers equal treatment to be a central justification for robust authority—being an aim that individuals cannot achieve from their internal-and-therefore-interested position, and that can only be gained by outside enforcement (at 30)—this entails only equal, not necessarily proportionate sentencing.
See above, note 16.
du Bois-Pedain (2017: 204).
Ibid., at 225.
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Eldar, S. Criminal Law, Parental Authority, and the State. Criminal Law, Philosophy 12, 695–705 (2018). https://doi.org/10.1007/s11572-017-9452-7
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DOI: https://doi.org/10.1007/s11572-017-9452-7